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2025 DIGILAW 858 (HP)

Sher Singh v. Gantu

2025-04-30

SATYEN VAIDYA

body2025
JUDGMENT : (Satyen Vaidya, J.) Both these petitions are being decided by a common judgment as these arise out of the proceedings in Civil Suit No.108-1 of 2015 pending on the files of learned Civil Judge, Rampur. 2. The petitioner in both the petitions is the plaintiff in above noted suit, which has been filed for a specific performance of agreement dated 07.11.2014 and for cancellation of sale deed No.107/2015 registered on 27.02.2015 in the office of Sub Registrar, Rampur Bushahr, District Shimla, Himachal Pradesh. 3. The case as set up by the plaintiff before learned trial Court is that defendant No.1 was to discharge the liability of bank and for such purpose needed the money, which he obtained from the plaintiff. The plaintiff on the request of defendant No.1 had paid a sum of Rs.26,500/-. Defendant No.1 used the said amount for discharging the liability of the bank. On receipt of the amount, defendant No.1 had delivered the possession of the suit land to plaintiff. Thereafter, on 07.11.2014, defendant No.1 had executed the agreement to sell the suit land in favour of the plaintiff for sale consideration of Rs.45,000/- out of which a receipt of Rs.26,500/- was acknowledged and the remaining amount of Rs.18,500/- was to be paid at the time of registration of sale deed. The plaintiff has further averred that after being put in possession of the suit land he has raised apple orchard on the same. 4. As per the plaintiff, defendant No.1 has illegally sold the suit land to defendant No.2 for consideration of Rs.1,00,000/- vide sale deed dated 27.02.2015 and on the happening of such event he came to realize that defendant No.1 had breached the terms of agreement dated 07.11.2014. 5. Defendant No.1 in his written statement has not denied the execution of agreement. He has admitted that an agreement to sell was executed by him in favour of the plaintiff whereby he had agreed to sell 7 biswas of land for sale consideration of Rs.45,000/-. The factum of possession of suit land with the plaintiff has been denied and as a consequence, the raising of apple orchard on the suit land by the plaintiff also stands denied. He has alleged that the plaintiff was not entitled for a decree of specific performance as he himself had avoided the performance of the agreement. 6. The factum of possession of suit land with the plaintiff has been denied and as a consequence, the raising of apple orchard on the suit land by the plaintiff also stands denied. He has alleged that the plaintiff was not entitled for a decree of specific performance as he himself had avoided the performance of the agreement. 6. Defendant No.2 has also filed his separate written statement and has denied the averments made in the plaint generally. 7. The issues were framed and thereafter both the sides have led their respective evidence. Thereafter, the plaintiff came up with two separate applications, one under Order 7 Rule 14 and other under Order 26 Rule 9 of the Code of Civil Procedure. By way of first application, a prayer was made to allow the plaintiff to place and prove on record documents i.e. an affidavit of defendant No.1 dated 07.11.2014 confirming the possession of plaintiff; letter issued by the bank with respect to vacation of charge on the suit land and objection petition filed by the plaintiff to the attestation of mutation in pursuance to the execution of sale deed by defendant No.1 in favour of defendant No.2. In the other application for appointment of Local Commissioner, the prayer has been made for local inspection of the suit land to ascertain the factum of possession as also the existence of apple trees thereon. 8. Both the applications were contested by the defendants and in result both came to be dismissed by learned trial Court by the orders impugned in these petitions. 9. I have heard learned counsel for the parties and gone through the record carefully. 10. As regards the application seeking leave to file and prove additional documents, learned trial Court has held that the application was filed belatedly after pendency of suit for about 8 years and further the documents sought to be placed on record were not relevant to the controversy. 11. Admittedly, the application seeking leave to file additional documents was preferred by the plaintiff after the evidence of both sides was closed. It is also not in dispute that the suit was filed in the year 2015, whereas the application was filed in the year 2023. 11. Admittedly, the application seeking leave to file additional documents was preferred by the plaintiff after the evidence of both sides was closed. It is also not in dispute that the suit was filed in the year 2015, whereas the application was filed in the year 2023. Though, in the application a bald assertion has been made that the exercise of filing application could not be undertaken earlier on account of the incarceration of the plaintiff in pending criminal case, but no details about the period of such incarceration has been provided. 12. None of the documents sought to be placed on record by the plaintiff is per se admissible, which means that the documents even if allowed to be placed on record cannot be read in evidence unless proved, in accordance with law. This will entail allowing the plaintiff to lead additional evidence. For succeeding in such venture, the plaintiff ought to show that he was prevented by sufficient reasons from leading the evidence at appropriate stage. The application filed by the plaintiff is silent on this aspect. 13. Even otherwise, the documents sought to be filed and proved by the plaintiff at the fag end of the proceedings of the suit do not appear to be of such nature without which the Court will not be able to adjudicate upon the controversy raised in the suit. Defendant No.1 has not denied the execution of the agreement. It is also not in dispute that the plaintiff had pad sum of Rs.26,500/- to defendant No.1. Thus, the documents now sought to be placed and proved on record cannot be said to be so material, the absence of which will imminently prejudice the case of the plaintiff on merit. 14. As regards the other application for appointment of Local Commissioner, the same has also been filed at a stage when evidence of both the parties has been closed. The plaintiff has already got the opportunity to prove the facts pleaded by him, which included his assertion as to possession over the suit land and raising of apple orchard thereon. The jurisdiction of Court under Order 6 Rule 9 can be exercised where the Court finds the local investigation or inspection to be requisite or proper for the purpose of elucidating any material in dispute. The jurisdiction of Court under Order 6 Rule 9 can be exercised where the Court finds the local investigation or inspection to be requisite or proper for the purpose of elucidating any material in dispute. In the given facts of the case, learned trial Court has found that the exercise of such jurisdiction is not required. No fault can be found with such finding of learned trial Court for the reason that in view of defence raised by defendant No.1, the possession of the plaintiff over the suit land may not be of much significance for adjudication of real matter in controversy, which primarily relates to the question whether the plaintiff is entitled for a decree of specific performance of agreement dated 07.11.2014 or not? 15. In light of above discussion, I have not found any illegality or perversity in the impugned orders. There is no error of jurisdiction either. The view taken by learned trial Court while disposing of both the applications is possible view. No real prejudice is going to be caused to the plaintiff by dismissal of both the applications. Accordingly, I find no merit in both these petitions and the same are dismissed with no order as to costs. 16. Pending application(s), if any, shall also stand disposed of.