209

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA-4492-2013 (O&M)

Date of decision : 14.03.2022

Sham Lal

... Appellant(s)

versus

Raja Ram

... Respondent(s)

CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

Present :

Mr. Jaideep Verma, Advocate for the appellant.

Mr. P.P.S. Duggal, Advocate for the respondent.

ALKA SARIN, J. (ORAL)

Heard in physical mode.

The present appeal has been preferred against the judgments

and decrees passed by the Courts below. The Trial Court had dismissed the

suit of the plaintiff-appellant for possession by way of specific performance.

The lower Appellate Court had partially reversed the judgment and decree of

the Trial Court by granting alternative relief.

Learned counsel for the plaintiff-appellant has contended that

an application for additional evidence under Order 41 Rule 27 of the Code of

Civil Procedure, 1908 (in short 'CPC') was moved by the plaintiff-appellant

before the lower Appellate Court on 14.10.2011 and the same was kept

pending to be heard with the main appeal. However, at the time of decision

in the main appeal, the said application for additional evidence has not been

considered and no order qua the same has been passed. Learned counsel for

the plaintiff-appellant has further contended that the said application for

YOGESH SHARMA

2022.03.15 10:57

I attest to the accuracy and integrity of this

document

Punjab and Haryana High Court,

Chandigarh

RSA-4492-2013 (O&M)

-2-

additional evidence was necessary in order to show his readiness and

willingness to perform his part of the contract. In order to buttress his

arguments, learned counsel for the plaintiff-appellant has relied upon the

following judgments :

1. State of Rajasthan Vs. T.N. Sahani & Ors., [(2001) 10

Supreme Court Cases 619];

2. Ramesh Kumar & Anr. Vs. Bhagwan Dass Devki

Nandan Dharamshala & Anr., [2012(2) PLR 534];

3. Municipal Committee, Ellenabad Vs. Shanti Devi,

[2003(1) RCR (Civil) 85];

Per contra, learned counsel for the defendant-respondent has

vehemently contended that at no point of time was it pointed out by learned

counsel appearing before the Lower Appellate Court at the time of

arguments that an application for additional evidence remained pending.

Learned counsel for the defendant-respondent has further contended that the

said application even otherwise was not maintainable.

Heard.

Few facts relevant to the present lis may be noticed. The suit

was filed by the plaintiff-appellant for possession by way of specific

performance of agreement to sell dated 02.03.2006 qua the sale of land

measuring 19 kanals 6 marlas as detailed in the headnote of the plaint. The

Trial Court dismissed the suit inter alia holding that the plaintiff-appellant

was neither ready nor willing to perform his part of the contract. The

plaintiff-appellant preferred an appeal before the lower Appellate Court

against the judgment and decree of the Trial Court dated 07.02.2011.

YOGESH SHARMA

2022.03.15 10:57

I attest to the accuracy and integrity of this

document

Punjab and Haryana High Court,

Chandigarh

RSA-4492-2013 (O&M)

-3-

During the pendency of the appeal, an application under Order 41 Rule 27

CPC was filed by the plaintiff-appellant for additional evidence primarily to

show that the plaintiff-appellant had the capacity to pay. The said

application was ordered to be heard with the main case. However, at the

time of hearing of the appeal, the said application was not decided and

eventually the appeal was dismissed vide judgment and decree dated

29.04.2013. Aggrieved by the said judgments and decrees passed by the

Courts below, the present regular second appeal has been preferred.

A perusal of the record reveals that on 14.10.2011 an

application for additional evidence was filed by the plaintiff-appellant and

the case was adjourned to 21.10.2011 for fil