The validity and executability of the agreement to sale and the discretionary relief of specific performance under the Specific Reliefs Act, 1963 were the central legal points established in the judgment.

JUDGMENT

Shree Chandrashekhar, J. – The petitioner, defendant no.1 in Title Suit No.56 of 2010, is aggrieved of order dated 26.04.2017 by which application filed by the plaintiff no.1 for examination of signature of the plaintiff no.2 has been allowed.

2. Title Suit No.56 of 2010 was instituted by Navin Kumar Singh and Sanjai Rai for a decree for specific performance of the agreement to sale dated 10.11.2004. The plaintiffs have pleaded that in Partition Suit No.22 of 1999 a preliminary decree was prepared on 18.03.2008 for 1/4th share to the defendant no.1 which is described as schedule-A property and 1/4th share each to the defendant no.2 and other proforma respondents which are described as schedule-B and schedule-C properties. During pendency of Partition Suit No.22 of 1999 the defendant nos. 1 and 2 entered into an agreement for sale of their 1/4th properties in the partition suit alongwith 1/4th share of the proformadefendants. Sale consideration under the agreement to sale dated 10.11.2004 was Rs.12 lacs per katha and the plaintiffs have alleged that the defendants received Rs.1,05,000/- as earnest-money. During pendency of the specific performance suit plaintiff no.2 died and in his place his wife was substituted as his legal heir and representative. During course of her examination as a witness in Title Suit No.56 of 2010 when she denied the agreement dated 23.05.2015 which was allegedly entered by the plaintiff no.1 with her, application dated 22.02.2017 was filed by the plaintiff no.1 for examination and verification of her signature. This application has been allowed by the trial Judge vide impugned order dated 26.04.2017.

3. Order VII Rule 14 CPC provides that at the time of institution of the suit plaintiff shall produce the document on which his claim is founded [refer sub-rule 1] and if such document is not in his possession, wherever it is possible, he shall plead in whose possession the document is [refer sub-rule 2]. Case pleaded by the plaintiff no.1 is that after death of plaintiff no.2 his wife has assigned her rights to him on consideration of Rs.52,500/- by executing the agreement dated 23.05.2015. Validity of this agreement has been denied by the substituted plaintiff no.2. Evidently, this document is not a document on which the plaintiffs have founded their claim for specific performance of the agreement to sale. In a suit for specific performance of an agreement issue before the Court would be the validity and executability of the agreement to sale and whether in view of the limitations provided under Specific Reliefs Act, 1963 the discretionary relief of specific performance can be granted to the plaintiff or not. Assignment of her rights under the agreement to sale, if any, by the wife of plaintiff no.2 in favour of plaintiff no.1 is not an issue in the pending Title Suit No.56 of 2010. May be the issue sought to be raised by plaintiff no.1 can be raised by filing a separate suit but definitely not in the proceeding of Title Suit No.56 of 2010.

4. In the above facts, finding serious infirmity in the impugned order dated 26.04.2017, it is set-aside.

5. The writ petition stands allowed.