Shahid Bilal Hassan, J: Precisely, the respondent/plaintiff Mehmood Ahmad instituted a suit for possession through specific performance of contract dated 13.12.2007 allegedly entered into for a consideration of Rs.13,00,000/- with regards to the suit property , out of which Rs.200,000/- were paid as earnest money and the time of execution of registered sale deed and delivery of possession was fixed till 13.02.2008. The said suit was contested by the present appellant while submitting written statement contending therein that time till 13.02.2008 was essence of the contract and that the respondent-plaintif f having failed to perform his part of contract, was not entitled to any discretionary relief of specific performance. Out of the divergent pleadings of the parties the learned trial Court framed following issues:-
1. Whether the defendant failed to transfer property in the name of plaintiff at the date fixed? OPP
2. Whether the plaintiff is entitled to decree of possession through specific performance of agreement to sell? OPP
3. Whether the plaintiff is estopped by his word and conduct to institute the suit? OPD
4. Whether the plaintiff has received earnest money , therefore, agreement stood cancelled, hence, suit is liable to be dismissed? OPD
5. Whether the plaintiff could not pay the remaining amount at the date fixed, therefore, agreement stood cancelled? OPD
6. Whether the plaintiff has come to the Court with unclean hands? OPD
7. Relief.
On the application of the respondent-plaintif f, following additional issue was framed on 29.1 1.201 1:- 6-A. Whether the time (i.e. date of 13.02.2008) was the essence of the agreement between the parties? OPD Evidence of the parties was recorded. During pendency of the suit an application under Order I, Rule 10 of the CPC was filed by Mst. Naseem Akhtar , etc. on 14.03.2013, however , the same was dismissed on 25.11.2013. After hearing arguments, the learned trial Cour t vide impugned judgment and decree dated 30.04.2014 decreed the suit in favour of the respondent-plaintif f. The petitioner being aggrieved of the said judgment and decree preferred an appeal, but the same was dismissed vide impugned judgment and decree dated 15.02.2016; hence, the instant regular second appeal.
2. Heard.
3. After hearing arguments and going through the record, it has been noted that the learned trial Court without considering documents and discussing evidence, produced by the parties, in a minute manner has proceeded to pass decree in favour of the respondent-plaintiff, because it has come on record that improvements in the evidence have been made by the parties, but the learned trial Court has adopted pick and choose methodology, which is not warranted under law, because evidence as a whole is to be considered and dilated upon. Evidence in totality is to be accepted or rejected but here the position is otherwise and even the evidence led beyond the pleadings has been relied upon by the learned trial Court. Moreover, no issue with regards to readiness and willingness of the parties germane to fulfillment of their part of agreement was framed by the learned trial Court and even there is nothing on record to sugge st that as to who got issued the Fard Milkiyat, because both the parties remained reluctant to bring on record this fact; thus, the learned trial Court ought to have summoned the record of Rapt No.288 so as to get itself acquainted that who got issued the said Fard Milkiyat. Moreover , factum of issuance of legal notice has totally been ignored by the learned trial Court, because it was stance of the petitioner that he issued the legal notice and remained present in the office of Sub-Registrar on the target date but it was the respondent who did not appear there. The learned trial Court in a sketchy manner , without discussing the evidence on this point, has disbelieved the petitioner-defendant.
4. Over and above, perusal of the evidence of the parties goes to evince that the same was recorded via local commission but the same does not bear certification of the learned Presiding Officer. It is an illegality on the part of the learned trial Court because it is required by law that evidence should be recorded by the learned Presiding Officer or under his dictation and in case the evidence is recorded by a local commission that should be under supervision and in presence of the learned Presiding Officer, whereupon the learned Presiding Officer would give a certificate that the same has been recorded in his presence by the local commission with consent of the parties. In this regard Rule 8 of Order XVIII of the Code of Civil Procedure, 1908 is much clear, which reads:- "Rule 8.--Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, in his own hand or from his dictation in open Court and such memorandum shall be signed by the Judge and shall form part of the record."
However , this aspect of the case has altogether been overlooked and ignored by the learned appellate Court while deciding the appeal and in a flimsy manner by dittoing the judgment and decree passed by the learned trial Court, passed the impugned judgment and decree without considering the consistent view of the higher Courts with regards to matters pertaining to specific performance of agreement to sell.
5. Pursuant to the above, the appeal in hand is allowed, impugned judgments and decrees are set aside and case is remanded to the learned trial Court to frame fresh issues keeping in view the observations made hereinabove, record evidence of the parties, if they intend to produce and decide the matter afresh on merits in accordance with law. The parties are directed to appear before the learned trial Court on 06.03.2019, positively .