ANIL KSHETARPAL, J.

CM 12301-C of 2017

1. Through this application, the plaintiff/respondent wants this Court to take notice of the subsequent facts like registration of sale deed, sanction of mutation and release of electric connection for the tube-well installed in the land.

2. As per the Civil Procedure Code, additional evidence can be permitted only under Order 41 Rule 27. For filing an application under Order 41 Rule 27 CPC, there are certain requirements, which are necessary to be fulfilled. A reading of the application does not show that such requirements have been fulfilled.

3. In these circumstances, I am left with no choice but to dismiss the application.

4. The application is dismissed.

Main Case.

5. While admitting the appeal, this Court had framed a substantial question of law, which is extracted as under: –

1. “Whether the respondent-plaintiff has been able to satisfy one of the mandatory ingredients, viz., his willingness and readiness to get executed the agreement to sell on payment of the balance consideration?”

In my considered opinion, an additional question of law also arises, which would be:

2. Whether the Courts below have overlooked the interim orders passed while passing the final judgement ?

6. Detailed facts have been noticed by the Courts below, however, to complete the narrative, certain facts are being noticed.

7. The defendant/appellant entered into an agreement to sell with the plaintiff on 21.01.1997 with respect to the land measuring 23 Kanal and 5 Marla for a total sale consideration of Rs.3,72,000/- out of which Rs.1,50,000/- was paid as earnest money. As per the agreement to sell, the target date for execution and registration of sale deed was fixed as 13.05.1997. It may be noticed that out of 23 Kanal 5 Marla, 11 Kanal and 9 Marla was mortgaged with a Cooperative Bank. It was provided in the agreement that the proposed vendor shall get the land redeemed. On 13.05.1997, the plaintiff and defendant both alleged that they visited the office of the Sub Registrar. The plaintiff could not produce any evidence in support thereof. However, the defendant went to the office of the Sub Registrar along with the Assistant Manager of the Cooperative Bank so that the payment made by the plaintiff is used for redeeming the mortgage immediately. The aforesaid Assistant Manager has been examined by the defendant as DW2.

8. The plaintiff is alleged to have sent a notice to the defendant on 31.05.1997 calling upon the defendant to come and execute the sale deed on 10.06.1997 after redeeming the mortgage. The plaintiff filed a suit for specific performance of agreement to sell on 13.06.1997. The plaintiff asserted that he was ready and willing to perform his part of the contract. The defendant appeared in the Court on 25.07.1997. The defendant on the very first date of appearance in the Court made the following statement: –

“I remained present in the office of Sub Registrar Talwara for execution and registration of the sale deed on 13.05.1997 as per the terms and conditions of the agreement to sell dated 21.01.1997 but plaintiff did not come present, for getting the sale deed executed and registered on 13.05.1997 as he was not in a position to execute the sale deed for want of the balance sale consideration. However, the defendant is still ready to execute the sale deed in favour of the plaintiff if the plaintiff paid the balance sale consideration up to 01.08.1997 in this Hon'ble Court, otherwise, the defendant will not bound to execute the sale deed in favour of the plaintiff. The loan amount has been paid by me.”

9. It may be noticed that the defendant/appellant did redeem the mortgage from the bank on payment of entire loan amount on 23.07.1997.

10. After recording the statement, learned trial Court adjourned the case for the next date i.e. 26.07.1997. Thereafter, the case was adjourned to 29.07.1997 and then again adjourned further. On the request made by the defendant/appellant, learned trial Court passed an or