Brij Mohan vs Sohan Singh

L.N. Mittal, J.—Plaintiff Brij Mohan has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 3.2.2010, Annexure P/1 passed by learned Civil Judge (Junior Division), Ludhiana thereby allowing application moved by Defendant-

Respondent Sohan Singh for additional evidence.

Plaintiff-Petitioner has filed suit against Defendant-Respondent for specific performance of the agreement to sell dated 23.2.1998. The

Defendant denied the execution of the agreement. At the stage of rebuttal evidence and final arguments in the suit, Defendant moved application for amendment of written statement to plead that he is not owner of the suit property and in fact Punjab Wakf Board is owner thereof. However, said amendment application was dismissed by learned trial court vide order dated 12.12.2009, Annexure P/2. Thereafter Defendant moved application for additional evidence to produce copy of jamabandi to depict that the suit property is owned by Punjab Wakf Board and not by the Defendant.

The said application has been allowed by the trial court by impugned order Annexure P/1.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the Petitioner vehemently contended that application for additional evidence could not be allowed after application for

amendment of written statement to plead the fact, which is sought to be proved by additional evidence, had been dismissed. Learned Counsel for the Petitioner also contended that the Defendant having executed the impugned agreement cannot turn around to contend that he is not owner of

the suit land.

On the other hand, learned Counsel for Respondent contended that suit for specific performance of the agreement to sell cannot be decreed if

vendor - Defendant is not owner of the suit property. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme

Court in Waheed Baig v. Bangi Lakshmamma and Ors. 2008(3) ACJ 162 and judgment of this Court in Shiv Charan v. Siri Ram and Anr.

2008(3) RCR 454. Learned Counsel for the Respondent also contended that proposed additional evidence being copy of jamabandi is not likely to be fabricated and therefore, additional evidence has been rightly allowed.

I have carefully considered the rival contentions. Admittedly, Defendant in the written statement has not pleaded that he is not owner of the suit

land or that Punjab Wakf Board is owner thereof. Defendant's application for amendment of the written statement to plead the said fact has already been dismissed by learned trial court. In view thereof, the Defendant cannot be permitted to lead proposed additional evidence to prove the same fact which has not been pleaded and amendment of written statement to plead the same having been declined. The trial court committed illegality and jurisdictional error in permitting Defendant-Respondent to lead proposed additional evidence on a fact which has not been pleaded.

The impugned order is, therefore, unsustainable.

For the reasons aforesaid, the instant revision petition is allowed and impugned order Annexure P/1 passed by learned trial court is set aside and

application moved by Defendant for additional evidence stands dismissed.