Dr. Bharat Bhushan Parsoon, J.: - A suit for specific performance of agreement dated 12.9.1993 for possession of House No.322, Sector-9, Chandigarh is pending adjudication in the lower court since 7.11.2002. It was owned by Ran Singh Grewal, who died leaving behind alleged Will and five legal heirs including his widow Smt. Basant Kaur, who also died later. Sukhdyal Singh Grewal, defendant No.1, respondent No.1 herein, Manmohan Singh, defendant No.3, respondent No.3 herein, and Jagdev Singh Grewal, defendant No.4, respondent No.4 herein are sons of Ran Singh Grewal whereas Smt. Harminder Kaur Sidhu, defendant No.2, respondent No.2 herein, is his daughter.

2. Hearing has been provided to the counsel for the parties while going through the paper book.

3. The plaintiff, petitioner herein, moved an application under Order XII Rule 6 CPC seeking judgment in his favour on the basis of admission made by defendant-respondent No.1. This application was strongly contested and finding triable issues, the lower court vide order dated 28.4.2007 came to the conclusion that the judgment and decree to the extent of admission made by defendant No.1 in the given set of circumstances of highly disputed rival claims and triable issues, was not called for.

4. Impugning this order, counsel for the plaintiff-petitioner has urged that in view of provisions of Order XII Rule 6 CPC, the court has no option but to pass a judgment on admission made by defendant No.1. Assertion of this proposition by learned counsel for the petitioner is misfounded. It would be appropriate to reproduced Order XII Rule 6 CPC as under:

“(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-section (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”

5. A careful perusal of this provision reveals there is no manner of doubt that it is not binding on the court to pass a decree on the admission made by a party in its pleadings. Rather, this provision is only an enabling one and, thus, vests discretion in the court to pass a judgment on admission and by no means can be said to be mandatory in its effect. Observations in this regard made by learned lower court in para 13 of the impugned order with approval are reproduced as below:

“The provisions of Order XII Rule 6 CPC as reproduced above, provide for a judgment on admission, but not as a matter of right rather as a matter of discretion of the court. Where the defendants have raised objection which go to the very root of the case, it is not proper and justified to exercise this discretion. The words “May” and “Make such an order and” show that the power under the rule is discretionary and cannot be claimed as matter of right. This power is not to be exercised where the case involves question which cannot be conveniently tried on motion under this rule.”

6. There are many relevant issues and attending circumstances which rightly weighed with the lower court dissuading the court to pass a judgment on admission made by defendant No.1 in the written statement. Some of these points are enunciated as below:

(1) Written statement furnished by defendant No.1 Sukhdyal Singh Grewal is not made by him personally but is through his alleged general power of attorney whose power to make such admission is strongly under contest by the other co-defendants;

(2) Agreement dated 12.9.1993 sought to be enforced by the plaintiff was allegedly executed during the probate proceedings of Will of Dr. Ran Singh Grewal and there are other executants in addition to defendant No.1. At the t