JUDGMENT

Manmohan Singh, J.

1. The present appeal has been filed by the plaintiff under Chapter II Rule 4 of the Delhi High Court (Original Side) Rules, 1967, against the order dated 11.08.2011 passed in I.A. No.14024/2010 by the Joint Registrar. The plaintiff's application seeking direction against the defendant to file a fresh affidavit as evidence in conformity with the pleadings or alternatively prayer was made that the paragraphs-2 to 10, 14 and 17 to 20 of the affidavit be not read in evidence has been rejected by the impugned order.

2. The brief facts of the case are that the plaintiff filed a suit for specific performance for enforcement of Agreement to Sell dated 24.12.1997, between plaintiff and defendant with regard to the property bearing Khasra No. 266 situated in Village Tughalaqabad, near EDPF Colony, New Delhi admeasuring about 2175 sq yds (hereinafter referred to as suit property) for an agreed consideration of Rs.48 lac.

3. The plaintiff states that in the written statement, the defendant has admitted the execution of Agreement to Sell and also the receipt of Rs.7 lac as part consideration. However, in his evidence produced by way of an affidavit dated 23.09.2010, the defendant has made statements which are contrary to the written statement as it is alleged in the affidavit that the plaintiff company had never entered into any Agreement to Sell for purchase of the suit property. The defendant did not receive any sale consideration from the plaintiff, as defendant had entered into an agreement with Mr. Gopal Nigam, Company Secretary to the plaintiff company. After filing the affidavit, the plaintiff filed an application being I.A. No. 14024 of 2010 objecting the evidence being led by the defendant and the same was dismissed by the impugned order, thus, the chamber appeal is filed has been filed by the plaintiff.

4. The following grounds are taken in the grounds of appeal :

a. The impugned order is erroneous, bad on facts and as well as in law.

b. The Joint Registrar failed to appreciate plaintiff's allegations and the defendant's defence to each of those allegations. That new facts cannot be brought in at the time of evidence especially when the same is not stated in the written statement of the defendant.

c. The Joint Registrar failed to appreciate the well settled law, that parties can lead evidence limited to their pleadings and not beyond it or contrary to it.

d. The Joint Registrar failed to appreciate that defendant have admitted the execution of the agreement to Sell between the plaintiff and the defendant. But, nowhere in the written statement, defendant have pleaded that he has entered into an agreement with Mr. Gopal Nigam and/or received part payment from Mr. Nigam.

e. The Joint Registrar failed to appreciate that there was a direction from this Court, vide order dated 19.04.2011, wherein it was specifically mentioned that Joint Registrar should consider the present application without invoking the provisions of Order XVIII of Code of Civil Procedure, 1908.

f. The Joint Registrar wrongly concluded that if the defendant is directed to file the affidavit in line with his pleadings, then it would be pre judging the issues at the time of recoding evidence.

g. That the Joint Registrar failed to appreciate that the present case is not a case of lack of pleading buta, of affidavit by way of evidence contrary to the pleadings as defendant is leading evidence contrary to its pleadings.

h. Since there was evidence contrary to pleadings, there was miscarriage of justice.

5. The defendant filed his reply wherein, he has stated that the appeal filed by the plaintiff is without any reason as in the said order the Joint Registrar has not decided any legal issue in finality. The main contentions of the defendant are as under :

(a) The defendant states that the affidavit in evidence is not beyond the pleadings of the Written Statement but just a mere extension of the objections already taken in the written