JUDGMENT :

Partha Sarathi Chatterjee, J.

1. Order and decree dated 04/06/2018 passed by the Learned Civil Judge (Senior Division) 3rd Court Alipore in Title Suit no. 1844 of 2016, whereby the learned Court below dismissed the suit for specific performance of contract and permanent injunction ex-parte, has been impugned in this appeal.

2. Here, in the case at hand, one Md. Mukhtar had filed a suit for specific performance of contract and permanent injunction which was registered as Title Suit no. 1844 of 2018.

3. Facts projected in the plaint in a nutshell are that one Jagadish Prasad Roy along with his co-sharers was the owner of the suit properties and other properties and by virtue of registered deed of partition vide no. 435 of 1987, Jagadish Prasad Roy acquired the absolute ownership of the suit properties mentioned in schedule ‘Kha’ appended to the plaint.

4. Jagadish Prasad Roy died leaving behind his only daughter namely, Sharda Devi, since deceased, who happened to be the wife of Mr. K Mahato.

5. It was further pleaded therein that the Sharda Devi, being the absolute owner of the suit properties, through her son as constituted attorney entered into agreement for sale with the plaintiff to sell out the suit property at a consideration amount of Rs. 50 lakhs on 14/04/2013 and Sharda Devi received Rs. 33 lakhs and in the agreement, Sharda Devi and her son put their respective signatures on the agreement and it was agreed by and between the parties thereto that deed of conveyance would be executed and registered within 2nd week of June, 2013 upon payment of balance consideration amount being Rs. 17 lakhs.

6. It was claimed therein that on 15th day of June, 2013 Sharda Devi refused to receive the said balance amount and she also refused to execute and register the deed and she along with her sons left the locality to some undisclosed destination which forced the plaintiff to file one complaint under section 156(3) Cr.P.C. before the competent court of law and treating the said complaint as an F.I.R., one Metiabruz P.S. Case no. 149 dated 22.8.2013 U/ss. 420/406/120B IPC was initiated.

7. However, I.O. concerned could not apprehend the accused persons and it was stated therein that in the meantime, Sharda Devi died leaving behind her two sons, the defendants/respondents herein. They did not take appropriate steps to execute and register the deed of conveyance though the plaintiff was ready and willing to perform his part of the agreement dated 14/5/2013. Hence, the suit.

8. Records postulate that service could not be effected upon the defendants since they were absconding and hence, plaintiff took recourse of substituted service under Order 5 Rule 20 of CPC and ultimately, the suit was fixed for ex-parte hearing.

9. Records further speak that to substantiate his claim made in the plaint, the plaintiff adduced his oral testimony and was examined as PW-1 and plaintiff tendered some documents say, certified copies of three orders dated 20.8.2013 (Ext-1), certified copies of FIR and Charge sheet (Ext-2), certified copy of the complaint (Ext.-3) and agreement for sale (Ext-4). The agreement was impounded and thereafter exhibited.

10. From the order impugned, it transpires that the learned Court below observed that two sons of Sharda Devi put their respective signatures and Sharda Devi put her LTI on the agreement as vendors whereas in the memo of consideration of the agreement (which was written in English) Sharda Devi and defendant no. 1, Mahendra Kumar put their signatures as vendors whereas defendant no.2 put his signature as witness. Learned Court below further observed that in absence of the best evidence and when the suit is being heard ex-parte, documents produced by the plaintiff would be such so that case of the plaintiff is proved on the degree of preponderance of probability. Learned Court below raised one suspicion on the facts that on one portion of the agreement Sharda Devi put her signature and on one portion, she put her LTI