JUDGMENT :

Harish Tandon, J.:

1. Initially, the order impugned in the instant appeal appears to us in tune with the spirit of the order passed by the Division Bench on 17th November, 2022 while disposing of APOT 159 of 2021 but the course adopted by the Single Bench in admitting various documents disclosed in the written notes of argument to be admitted in evidence, we invited the counsel to address the aforesaid point.

2. Undisputedly, a suit for specific performance of an agreement in relation to the immovable property being CS 576 of 1990 was filed before this Court by the predecessor of the appellant. The said agreement was entered into between the predecessor-in-interest of the present appellant and Mrs. Helen Wilson who was admittedly a foreign national. The said foreign national during a lifetime made and published a last Will and Testament appointing the respondent no.3 as executor therein to carry out the last wish and desire indicated therein. The original plaintiff died during the pendency of the said suit and the appellant have been substituted in his place and instead. A plea was taken by the executor to the said Will that this said testatrix being a foreign national did not obtain any permission from Reserve Bank of India to transfer the immovable property being the subject matter of the said agreement. It is, thus, contended that the said agreement is per se, illegal and void in view of an embargo created under Foreign Exchange Regulation Act, 1973.

3. On the conspectus of the aforesaid defense having been taken by the said respondent no.3, an application for rejection of the plaint was taken up which was dismissed on 4th May, 2021. The said order was carried to an Intra-Court appeal and the Division Bench although declined to interfere with the said impugned order, categorically observed that the point so taken for the purpose of rejection of plaint strikes at the root of the matter and therefore, the Trial Court has to arrive at the decision whether such issue could be determined as a pure question of law or a mixed question of fact and law. The Division Bench further observed that for such limited purpose, the Single Bench may direct the parties to discover the documents and select the documents already disclosed on discovery pertaining to the said issue only and determined the same by trial on evidence.

4. This lead to passing the impugned order upon framing an additional issue as to whether the said suit is barred under Section 31 of the Foreign Exchange Regulation Act, 1973 upon admitting certain documents in evidence for aforesaid purposes as disclosed with the written notes of argument.

5. At the very outset, we did not find any infirmity into the impugned order relating to framing of an additional issue in the light of the observations of the Division Bench but the second limb of the impugned order involves a question whether the documents disclosed by the said contesting respondent no. 3 in the written notes of argument can be admitted in evidence and thereafter directing the said contesting respondent to examine the necessary witness or adducing evidence to determine the said additional issue as preliminary issue. The admissibility of the documents in evidence is seriously questioned by the appellant which according to them are opposed to the rule of evidence and the provisions in this regard contained in the procedural law as well as the Evidence Act.

6. The list of document so admitted in evidence has been elaborately jotted down in the impugned order which apart from the amended plaint and the written statement filed in the suit contained several letters exchanged by the vendor to various persons. The appellant has seriously questioned the admissibility of the document or in other words document to be received in evidence without strictly proving the same in accordance with the relevant provisions of law.

7. Chapter 5 of the Evidence Act contained various provisions relating to documentary evidence and the