OA No.120/2011 in CS (OS) No.1229/1999 Page 1 of 13

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HIGH COURT OF DELHI: NEW DELHI

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Judgment decided on: 30.03.2012

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O.A. No. 120/2011 in I.A. No. 14024/2010

in CS (OS) No. 1229/1999

B.S. Infrastructure Pvt. Ltd

..... Plaintiff

Through: Mr. H.L. Tiku, Sr. Adv. with

Ms. Yashmeet, Adv.

Versus

Sh. Sanjeev Kumar Malhotra

..... Defendant

Through

Mr. Harish Katyal, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2012:DHC:2242

OA No.120/2011 in CS (OS) No.1229/1999 Page 2 of 13

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.

2012:DHC:2242

OA No.120/2011 in CS (OS) No.1229/1999 Page 3 of 13

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