HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3268 OF 2008 DATE:04-02-2011 BETWEEN Dadisetty Venkata Rao …Petitioner AND Burra Mallikharjuna Sarma & another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3268 OF 2008 ORDER: This revision under Article 227 of Constitution of India has been filed by the defendant to revise the dismissal order passed in I.A.No.262 of 2008 in O.S.No.1037 of 2005, dated 1.7.2008 passed by the Principal Junior Civil Judge, Vijayawada, whereby the application filed to issue summons to the Secretary, R & B Division Employees Cooperative Building Society Ltd., Vijayawada to give evidence by producing the Bye-laws of the society and the receipt books pertaining to the years 1994, 1996 and 2002 has been dismissed. Plaintiff-first respondent herein filed the above suit for specific performance of agreement of sale, dated 24.11.1994. Contesting the said suit, first defendant-petitioner herein filed written statement stating that the suit agreement of sale, dated 24.11.1994 is unenforceable for the reason that by the time of the alleged agreement of sale, this defendant has no right, title or interest over the property and for the other reason that as could be seen from the recitals of the agreement, on happening of an event of registration of plot in favour of this defendant he has to execute a regular sale deed in favour of the plaintiff after informing the same and after receipt of the alleged balance of sale consideration mentioned in the agreement. When the suit is coming up for trial, the first defendant-petitioner herein filed two applications i.e. I.A.Nos.261 and 262 of 2008; one to examine his son in his place as he is aged about 78 years and to issue summons to the Secretary, R & B Division Employees Cooperative Building Society Ltd., Vijayawada to give evidence by producing the By-laws of the society and the receipt books pertaining to the years 1994, 1996 and 2002. The lower Court by common order allowed I.A.No.261 of 2008 permitting the petitioner to examine his son holding that if the petitioner does not enter into the witness box, the plaintiff can draw adverse inference, but the plaintiff cannot compel his examination. But, however, dismissed the impugned I.A.No.262 of 2008 holding that since the petitioner is disputing very execution of agreement of sale, he cannot be permitted to plead and prove that he is not authorized to sell the plot, which plea has not been taken in the written statement. The stand took by the petitioner in para 5 of the written statement, as referred to above also supports the view taken by the lower Court. The only plea which was taken by the petitioner is by the date of sale, he has no right in the suit schedule property and it was agreed that the property will be conveyed only upon registration of the plot in his name. The lower Court rightly held that under Section 43 of the Transfer of Property Act, the party entering into a sale has no right over the property by the said date and if he acquired the rights subsequently, the vendee can ask the person to execute the registered sale deed at subsequent point of time. In the absence of any plea that the Bye-laws of the society prohibit such alienation, the agreement of sale entered is contrary to the public policy and therefore, summoning of the witness is of no use. No infirmity is discernable with the impugned order passed by the lower Court warranting interference by this Court. The revision is accordingly dismissed. No costs. _______________ A. GOPAL REDDY, J. FEBRUARY 04, 2011 Tsr.