IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. OSA No. 1 of 2010 Date of Decision : March 29, 2010 Satish Kumar …Appellant-plaintiff . Versus: Anita & Anr. …Respondents-defendants. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Ajay Sharma, Advocate. For the respondents : None Deepak Gupta, J. (Oral). This appeal is directed against the judgment of the learned Single Judge dated 16.03.2010, whereby he rejected the application being OMP No. 180 of 2009 filed by the appellant under Order 39 Rules 1 & 2 read with Section 151 CPC. Briefly stated the facts of the case are that the plaintiff filed a suit for specific performance of agreement dated 6.10.2008 on the allegations that he along with proforma respondent Raghunath Singh had entered into an agreement with defendant No.1 Anita Devi, whereby Anita Devi acting on behalf of Mehar 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Chand and Krishan Chand, sons of Shri Melu Ram had agreed to sell their share in the land in question to the plaintiff and respondent No.2. According to the plaintiff, some amount has been paid in terms of the agreement. He further claimed that despite notice having been issued to Anita Devi, defendant No.1. she did not execute the sale deed in his favour and according to the plaintiff he came to know on 2.5.2009 that the plaintiff is in hurry to sell the land to some other person. It would be pertinent to mention here that Mehar Chand and Krishan Chand were not made parties to the civil suit in question. The defendants filed reply and according to the defendants No.1& 2, the agreement dated 6.10.2008 was cancelled and a sum of Rs.5,01,000/- i.e. half of the total amount of Rs.10,00,000/- received in terms of the agreement, had been returned to the plaintiff. An endorsement on this behalf was made on the reverse of the agreement under which the signatures of the plaintiff are there. The plaintiff in rejoinder took up a new plea. He states that he had initially been told by Anita Devi that she was “Zimebar” of Mehar Chand and Krishan Chand and when he made inquiry in the matter he was told that she is their Power of Attorney. It would be pertinent to mention that these facts were not stated in the plaint. These facts were obviously in the knowledge of the plaintiff when he filed a plaint in this Court. He did not make any averment in this regard in the plaint and for the first time such averment has been made in the rejoinder. Now in the rejoinder it has also been alleged that a witness to this endorsement is acting as Power of Attorney on behalf of defendant No.2 Raghunath Singh and 3 proposing to sell all the property. It is alleged that a fraud has been committed on the plaintiff and these facts came to the knowledge of the plaintiff only after the written statement was filed. Further, according to the plaintiff, though the signatures on the reverse of the agreement are of the plaintiff but the endorsement has been incorporated later on. Prima facie the agreement appears to have been cancelled. The question whether a fraud has been played on the plaintiff or not, is a question to be decided by the Court at a later stage, At this stage there can be no presumption of fraud when no allegation of fraud was made in plaint. It is only in the rejoinder that such allegation has been made. In appeal, reference has been made to some other documents which do not form part of the record. Even now, the plaintiff wants us to take note of certain arguments and refer to certain documents which are stated to have been executed on 9.3.2009 and 29.3.2009 much before filing of the plaint but have still not been filed in the Court. This Court cannot take note of any such signatures or such documents which do not form part of the Court record. The learned Single Judge has come to the conclusion that the plaintiff has failed to show that there is a prima facie case in his favour. In view of the fact that the endorsement of canceling of the agreement dated 6.10.2008 was made on 16.10.2008. The interest of the plaintiff has been protected by holding that the principle of lis-pendens will be applicable to all subsequent transactions made during the pendency of the suit. 4 Mr. Ajay Sharma, learned counsel argues that he had urged before the learned Single Judge that the written statement was not in accordance with law since an affidavit had not been filed in support of the written statement. This averment has not been noticed by the learned Single Judge. There is no specific plea in the written statement that the written statement is not in accordance with law as the affidavit had not been filed. Only a general averment had been made that the written statement is not in accordance with the amended provisions of the Act. Be that as it may be, since the learned Single Judge has not gone into this question, we do not think proper to go into the same. We would however like to clarify the order of the learned Single Judge only to the limited extent that in case the defendants enter into an any agreement to sell the property to any person, they shall in the agreement to sell or/and the sale deed clearly make the reference to the order of this Court passed by the learned Single Judge, so that the purchaser is in knowledge of the said order. The appeal is dismissed in limine. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 29, 2010. (rana)