Saraswati Robin v. Sumitra Sharma & Anr.

1. This is an appeal filed by the appellant against the order dated 10.03.2015 passed by the learned Additional District Judge-03, West Tis Hazari Courts, New Delhi by virtue of which the review petition filed by the appellant/plaintiff against the order dated 07.06.2015 passed by Ms. Barkha Gupta, Additional District Judge-03, West Delhi, Tis Hazari 2016:DHC:3206 Courts, Delhi by virtue of which the application of the appellant under Order 39 Rules 1 & 2 CPC has been dismissed.

2. I have heard Mr. S.K. Duggal, the learned counsel for the appellant. I have also gone through the impugned order.

3. The main contention of the learned counsel for the appellant is that she had entered into an agreement to purchase Flat No.A-240, measuring

31.03 sq. mtrs., situated at Karampura Residential Scheme, New Delhi- 110015 from the respondent for a total consideration of Rs.3,25,000/-. It has been stated that the aforesaid flat is on the first floor and what was purchased was the flat in question while as on account of inadvertent mistake in the Sale Deed dated 09.11.2009 it was recorded as second floor although the flat was existing on the first floor.

4. It has been contended that since the suit for specific performance was filed, the said suit would become infructuous in case the interest of the appellant is not protected during the pendency of the suit by passing a restrained order against the respondent. It has been further stated that the appellant has been able to establish all the three requirements for grant of ad interim injunction during the pendency of the suit.

5. I have carefully considered the submissions. No doubt the facts of the case are not in dispute, firstly, that the present appellant had filed a suit for specific performance, secondly, the Sale Deed dated 09.11.2009 and the contents of which are not in dispute records that what was agreed to be sold by the respondent was Flat bearing No.A-240, situated on the second floor at Karampura Delhi. If that be so, the second floor cannot be read as the flat appearing on the first floor and a restrained order be passed against the respondent.

6. The appellant cannot be permitted to obtain a stay order against the respondent in respect of a flat which is situated on a different floor and then adduce oral evidence during the course of trial so as to change the terms and conditions of the written agreement/Sale Deed. It cannot be permitted to be done because no oral evidence is admissible which will change the terms and conditions of a written agreement. This is specifically laid down under Section 92 of the Indian Evidence Act, 1872.

7. I feel that there is nothing illegal, illogical or improper on the part of the learned ADJ in having rejecting the application under Order 39 Rules 1 & 2 CPC.

8. Accordingly, the present appeal is totally misconceived and the same is dismissed. V.K. SHALI,J. APRIL 26, 2016 vk