1. The 1st plaintiff in a suit for specific performance filed as O.S. No, 126/96 of the Sub Court, Kozhikode, has come up in appeal challenging the dismissal of the suit. The, 2nd plaintiff is new impleaded as the 2nd respondent.

2. The plaintiffs contended that the schedule building which is actually one of the seven rooms in a larger building was entrusted to them by the defendant (1st respondent) on 1.4.1987 as per Ext. Al agreement providing for rent of Rs. 335/-per mensem and that the 1st respondent along with his partner - 2nd plaintiff was thereunder conducting a business therein.

3. The background in which the agreement was executed was the present 1st respondent's initiating R.C.P. No. 41/88 against various sub-tenants. The purport of the agreement was that even if R.C.P. 41/88 was allowed, the 1st plaintiff would not be evicted from his portion of the building while the other sub-tenants would be evicted. The 1st plaintiff had paid a sum of Rs. 10,000/- and offered to pay further sum of Rs. 15,000/- as further consideration for the agreement as and when the then pending partition suit was over. That event took place on 29.3.1989; but the plaintiffs were never informed thereof. Intention of the defendant to resile from Ext. Al came to the notice of the plaintiffs when they received notice in the E.R filed by the defendant to execute R.C.R No. 41788. Immediately they sent Ext. A6 notice and filed the suit.

4. The defendant denied the execution of the agreement and contended that in any event, Ext. Al was void being against public policy and intended to stifle contest in a civil proceeding viz., R.C.R No. 41788 wherein the plaintiffs were respondents 11 and 12. Even though that proceeding was not contested at that stage, the 1st plaintiff filed a revision before the High Court at a later stage and lost it.

5. Ext. Al was subjected to expert examination. Even though the expert concerned was not examined as a witness, the trial court placed reliance on Ext. Cl report prepared by the expert. Taking note of the fact that the expert did not make positive assertion that Ext. Al was in the hand of the plaintiffs and only stated that it was probable that they executed the agreement as also the fact that RW. 2, who was the first witness to witness Ext. Al document, did not support the plaintiffs' case as also other factors like absence of evidence to show that any rent was paid as stipulated in Ext. Al, the Court concluded that Ext. Al was not executed by the defendant; that is not genuine and proceeded to dismiss the suit.

6. The learned counsel for the appellant submitted that Ext. Al is not against policy and that in the absence of any contra evidence, the trial court should have accepted the report of the expert and found that the contract was duly executed and proceeded to enforce it. Case law was also relied on in that regard. As regards the plea of limitation, his contention is that under Art.54 the starting point is only, date of knowledge that specific performance was refused and that the relevant date is 12.12.1995.

7. On the arguments advanced in the case the points that arise for decision are:

(1) Whether there is reliable evidence to find that Ext. Al was actually executed by the defendant?

(2) Whether Ext. Al is void being against public policy?

(3) Whether Ext. Al is liable to be enforced?

(4) Whether the suit is barred by limitation?

(5) Whether specific performance can be allowed as sought for?

8. Point No. 1:- Certain facts are admitted. One among them is that the date of Ext. Al falls within the period of pendency of R.C.P. No. 41/88. Yet another is that even though sub-lease in favour of the present 1st plaintiff was alleged in the said proceeding and notwithstanding the fact that the plaintiff had entered appearance through an Advocate by name Imbichi, the eviction sought for in the said proceeding was not contested even in R.C.A. No. 194/90 filed against the order of eviction. The eviction allowed against a