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2015 DIGILAW 2527 (MAD)

M. Sakthivel v. Sankareswari

2015-07-15

K.K.SASIDHARAN

body2015
ORDER : INTRODUCTORY: Suit for specific performance is a discretionary remedy. The Court is bound to examine as to whether the plaintiff has come to the Court with clean hands, has been ready and willing to perform his/her part of the contract and there would be no undue advantage to him/her by directing specific performance. Here, in this subject case, the learned Subordinate Judge granted the relief of specific performance by way of a default decree, without considering the merits of the matter, solely on account of the failure of petitioners to contest the matter. In short, the learned Subordinate Judge, Palani, punished the petitioners for their failure to appear by passing an "automatic decree". BCKGROUND FACTS: 2. The respondent filed a suit in O.S.No.15 of 2007, before the Sub Court, Palani, against the petitioners herein and fourth defendant, praying for a decree of specific performance on the basis of an agreement dated 12 February, 2004, stated to have been executed by the fourth defendant in his capacity as the power agent of petitioners. 3. The petitioners failed to appear before the Trial Court. The Trial Court, therefore, passed an exparte judgment and decree on 25 April, 2007. Thereafter, the respondent filed Execution Petition in E.P.No.233 of 2007, to execute the decree. The sale deed was executed on 27 April, 2009. Subsequently, the respondent filed E.A.No.259 of 2010 seeking delivery. It was only at that point of time, the petitioners came to know that an exparte decree was passed against them. 4. The petitioners filed an application in I.A.Nos.188 of 2010 and 189 of 2010 to condone the delay of 1009 days in filing the application and to set aside the exparte decree respectively. The applications were dismissed by the learned Trial Judge. 5. The order dated 18 July, 2011 in I.A.No.188 of 2010 is challenged in this Civil Revision Petition. SUBMISSIONS: 6. The learned counsel for the petitioners contended that on account of a communal problem, in connection with the marriage of the first petitioner and second petitioner with members of a different community, they were forced to leave the village. The fourth defendant was entrusted with the task of looking after the property by executing a power of attorney. The fourth defendant in the suit misused the power of attorney and executed a sale agreement in favour of the respondent. The fourth defendant was entrusted with the task of looking after the property by executing a power of attorney. The fourth defendant in the suit misused the power of attorney and executed a sale agreement in favour of the respondent. According to the learned counsel, the power of attorney was cancelled on 18 July, 2006 and only thereafter, the suit was filed by the respondent. The learned Trial Judge failed to consider the merits of the matter and a discretionary remedy was granted in favour of the respondent solely on account of the absence of petitioners to contest the suit. 7. The learned counsel for the respondent justified the impugned order. ANALYSIS: 8. The factual matrix indicates that there was a communal clash in the village of the petitioners consequent to the love marriage of petitioners 1 and 2 with members of a different community. The petitioners 1 and 2 were forced to leave the village with their spouses. The petitioners, with a view to look after the property, executed a power of attorney in favour of fourth defendant on 28 January, 2004. The petitioners 1 and 2 started living in Erode District, Suriyapalayam Village, Veerappannadiyoor Village and third petitioner in Kallimanthaiyam. 9. The fourth defendant entered into a sale agreement with the respondent on 12 February, 2004. The petitioners, in the meantime, cancelled the power of attorney on 18 July, 2006. The cancellation was published on 20 July, 2006. It was only thereafter, the respondent filed the suit. In fact, the suit was filed only on 29 January, 2007. 10. The correct address of the petitioners were not shown in the plaint in O.S.No.15 of 2007 filed by the respondent for specific performance. The petitioners were not personally served before making them exparte. 11. The learned Trial Judge decided the suit exparte without making any attempt to consider the merits of the matter. 12. The petitioners, on hearing the information with regard to the execution application filed by the respondent in E.A.No.259 of 2010, filed interlocutory application in I.A.No.188 of 2010 to condone the delay of 1009 days in filing the application to set aside the expartedecree. 13. The petitioners, in the affidavit filed in support of the application, indicated the reasons for the delay. 13. The petitioners, in the affidavit filed in support of the application, indicated the reasons for the delay. They have explained the circumstances which made them to escape from the village and execution of power of attorney in favour of fourth defendant, cancellation of power of attorney on 18 July, 2006, publication of notice with regard to cancellation on 20 July, 2006 and the date of filing the suit in O.S.No.15 of 2007. 14. Before the Trial Court, the petitioners marked Exs.A.1 to A.5 to show that they were not served with summons by the Trial Court. 15. The learned Trial Judge in a very casual manner dismissed the application. 16. The documents available on record would show that large extent of property having 7 items with 2 Wells and agricultural service connection were sold by the fourth defendant in favour of respondent for a sum of Rs. 1,50,000/-, after receiving Rs.10,000/-as advance on 12 February, 2004. 17. The suit in question was filed by the respondent for specific performance. The learned Trial Judge was expected to consider as to whether the plaintiff is entitled to a decree by exercising the discretion. It is not as if the plaintiff is entitled to a decree the moment the Court declares the defendants exparte. Even after declaring the defendants exparte, the Court must frame issues and decide as to whether there is a valid agreement, the plaintiff has been ready and willing to perform his part of the contract and that the plaintiff is entitled to a discretionary remedy of specific performance. Unfortunately, the Trial Court failed to consider the discretionary nature of the relief claimed by the respondent. 18. Remedy of specific performance is an equitable remedy. In Order to obtain such discretionary relief, plaintiff has to come to the Court with clean hands. Entire facts of the case have to be pleaded. There should be no attempt on the part of the plaintiff to conceal the facts. 19. Since the remedy of specific performance is a discretionary remedy and equitable in nature, plaintiff has to produce materials with respect to his/her readiness and willingness at all point of time. The conduct of the plaintiff assumes significance in a case like this. There should be no attempt on the part of the plaintiff to conceal the facts. 19. Since the remedy of specific performance is a discretionary remedy and equitable in nature, plaintiff has to produce materials with respect to his/her readiness and willingness at all point of time. The conduct of the plaintiff assumes significance in a case like this. Court was expected to weigh the materials produced by the plaintiff to come to a definite conclusion pertaining to the readiness and willingness to perform the contractual obligation voluntarily undertaken by the plaintiff. Any action on the part of the plaintiff to take undue advantage of the situation would give negative results and he/she would be denied the equitable remedy. The conduct of the plaintiff throughout should be taken note of to decide the issue regarding exercise of discretionary jurisdiction. In short, in a matter relating to sale of property, Court is not bound to grant specific performance for a mere asking. SUPREME COURT VIEWS ON DISCRETIONARY REMEDY: 20. In Gobind Ram v. Gian Chand, (2000) 7 SCC 548 , the discretionary jurisdiction of specific performance was indicated by the Supreme Court thus :- "7.It is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it will be fair, just and equitable. The court is guided by principle of justice, equity and good conscience. As stated in P.V. Joseph’s Son Mathew the court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered." 21. The Supreme Court in G. Jayashree v. Bhagwandas S. Patel, (2009) 3 SCC 141 , indicated the concept of discretionary jurisdiction thus :- "32. The civil courts, in the matter of enforcement of an agreement to sell, exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law. 22. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son (1987) Supp. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law. 22. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son (1987) Supp. SCC 340, the Supreme Court considered the scope and ambit of Section 20 of the Specific Relief Act and observed thus: "Section 20 of the Specific Relief Act 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff." 23. The Supreme Court in Bal Krishna v. Bhagwan Das, (2008) 12 SCC 145, indicated that if specific performance would give unfair advantage to the plaintiff, no decree should be given. "13. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as “the Act”) corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c) of Section 16 further makes it clear that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The compliance with the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff’s readiness and willingness must be in accordance with the terms of the agreement. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff’s readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court. 14. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court’s discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void." 24. While decreeing the suit exparte without considering the merits of the matter, the learned Trial Judge failed to follow the law declared by the Supreme Court as indicated above. SUFFICIENT CAUSE: 25. The Supreme Court in N.Balakrishnan v. M.Krishnamurthy [ 1998(7) SCC 123 ], observed that the superior Court would be free to consider the cause shown for the delay afresh and to come to its own finding. "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court." 26. The Supreme Court in M.K. Prasad v. P.Arumugam [ 2001(6) SCC 176 ], while considering the question regarding delay in applying for setting aside the exparte decree, observed that the Court ought to keep in mind the judgment impugned in the matter, the extent of property involved and the stake of the parties, while deciding an application to set aside the expartedecree. 27. The Supreme Court in Ram Nath Sao v. Gobardhan Sao [ 2002(3) SCC 195 ], explained the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963. The Supreme Court very clearly observed that explanation for the delay should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case. The Supreme Court said: "12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the list terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way." 28. In GMG Eng. Industries vs. ISSA Green Power Solution [2015(6) Scale 551], the Supreme Court observed that the term "sufficient cause" must receive liberal construction. "8. It is well settled that the expression 'sufficient cause' is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the Appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence." 29. In Executive Officer, Antiyur Town Panchayat vs. G.Arumugam, [ 2015(3) SCC 569 ], the Hon'ble Supreme Court considered a similar case involving delay. 30. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence." 29. In Executive Officer, Antiyur Town Panchayat vs. G.Arumugam, [ 2015(3) SCC 569 ], the Hon'ble Supreme Court considered a similar case involving delay. 30. In G.Arumugam's case, the suit land was classified as Natham Poromboke and possession and records of title are in the name of appellant Town Panchayat. The Trial Court dismissed the suit filed by the respondent for declaration of title and possession. The first Appellate Court allowed the appeal and suit was decreed. The Executive Officer, Antiyur Town Panchayat, Erode District, Tamil Nadu, who took charge when the execution petition was filed, initiated action to file second appeal. He filed an application to condone the delay of 1373 days in filing the second appeal. The High Court dismissed the application and refused to condone the delay. While allowing the appeal filed by the Panchayat, the Supreme Court narrated the facts and observed thus: "2. It appears, no steps were taken by the Executive Officer of the Panchayat at the relevant time. When the Executive Officer, at the time of filing the second appeal, came to know of the proceedings when steps for eviction were taken in execution, he immediately took steps and filed an application on 26.10.2004 for certified copy of the judgment and decree. The same were issued on 15.12.2004, and after obtaining the necessary sanction and on completing the other procedural formalities, the second appeal was filed on 05.01.2005 along with application for condonation of delay. By the impugned order, the High Court declined to condone the delay. According to the High Court, the delay is not properly explained. It is also observed in the impugned order that though the certified copies were issued on 15.12.2004, the second appeal is filed only on 05.01.2005 and that there is no explanation even for that delay. 3. In the additional affidavit filed on behalf of the Appellant on 12.12.2006, it is brought to the notice of this Court that Shri K.G. Ramasamy, who was working as Executive Officer of the Panchayat at the relevant time was suspended from service w.e.f. 12.07.2002 on allegations of corruption. 3. In the additional affidavit filed on behalf of the Appellant on 12.12.2006, it is brought to the notice of this Court that Shri K.G. Ramasamy, who was working as Executive Officer of the Panchayat at the relevant time was suspended from service w.e.f. 12.07.2002 on allegations of corruption. Be that as it may, after going through the records and after hearing the counsel on both sides, we are satisfied that the delay occasioned only on account of the deliberate lapses on the part of the Executive Officer of the Panchayat at the relevant time. Who else are involved in the process, is not quite clear. 4. As held by this Court in State of Nagaland v. Lipok Ao and Ors. (2005) 3 SCC 752 , the court must always take a justice-oriented approach while considering an application for condonation of delay. If the court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on merits. 5. Accordingly, we set aside the impugned order and condone the delay of 1373 days in filing the second appeal. The case is remitted to the High court for further consideration in accordance with law. The Interlocutory Application No. 2 of 2014 is accordingly disposed of." EXPARTE JUDGMENT AND DECREE - NECESSITY TO RECORD FINDINGS ON MERITS: 31. The decree in question was passed by the learned Appellate Judge without analyzing the facts of the case or documents relating to title. The learned Trial Judge decreed the suit in a routine manner presumably under the impression that in case the defendants are set exparte, the suit should be decreed as a matter of course without testing the bona fidesof the claim made by the plaintiff. 32. The Supreme Court in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan [ 2003(1) SCC 197 ], held that judgment should contain the issues and findings on such issues. The relevant paragraph reads thus: 10 ...Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefore. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The relevant paragraph reads thus: 10 ...Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefore. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs 23 incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. Rules 9 to 19 of Order XX are illustrative of contents of decrees in certain specified categories of suits. The very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and complexities arising at the stage of execution. 33. The Supreme Court in Ramesh Chand Ardawatiya v. Anil Pajwani [AIR 2003 SC 2508], while considering the provisions of Order IX Rule 6 and Order VIII Rule 10 of the Code of Civil Procedure, observed that even if the suit proceeds ex parte under Order IX Rule 6, the necessity of proof by the Plaintiff of its case cannot be dispensed with. The Supreme Court observed as under: 33 ...But there is substance in the other limb of this submission made by the learned senior counsel for the Defendant-Appellant. The Supreme Court observed as under: 33 ...But there is substance in the other limb of this submission made by the learned senior counsel for the Defendant-Appellant. Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the Code of Civil Procedure is attracted and the Court acts thereunder, the necessity of proof by the Plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the Plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the Court would grant the Plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX Rule 5. Yet the trial Court would scrutinise the available pleadings and documents, consider the evidence adduced, and would do well to frame the 'point for determination' and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the Defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence. 34. The Supreme Court in Maya Devi vs. Lalta Prasad [ 2015(5) SCC 588 ] held that the absence of defendant to contest the suit does not invite a punishment in the form of an automatic decree. The Supreme Court said: "41. The absence of the Defendant does not absolve the Trial Court from fully satisfying itself of the factual and legal veracity of the Plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the Trial Court as well as the Executing Court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Limited, will be sufficient. Reference to Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Limited, will be sufficient. The failure to file a Written Statement, thereby bringing Order VIII Rule 10 of the Code of Civil Procedure into operation, or the factum of Defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order VIII Rule 10 Code of Civil Procedure and on the invocation of Order IX of the Code of Civil Procedure, the Court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted." 35. In Meenakshisundaram Textiles vs. Valliammal Textiles, [ 2011(3) CTC 168 ], a Division Bench of this Court held that even an exparte judgment should contain reasons. The relevant portion of the judgment reads thus: "6. In terms of the above provisions, every judgment should contain a concise statement of the case, the points for determination, decision thereon and the reasons for such decision. A judgment which does not contain the bare minimum facts, the point for determination, the evidence adduced and the application of those facts and evidence for deciding the issue would not qualify it to be called as "judgment". The judgment should contain the brief summary of the facts, the evidence produced by the plaintiff in support of his claim and the reasoning of the learned Judge either for decreeing the suit or its dismissal. The Civil Procedure Code does not say that the Court is bound to grant a decree in case the defendant is absent. Judgment means cognitive process of reading a decision or drawing conclusion. Judgment is the basic requirement for a court and it means a decision or conclusion reached after consideration and deliberation. To put it differently, the basics of a judgment are to support by most cogent reasons that suggest themselves the final conclusion at which the Judge has conscientiously arrived. 16. Code of Civil Procedure does not define either an ex parte judgment or an ex parte decree. It refers only to a judgment and a decree. In the event a judgment is rendered when the defendant fails to defend the suit by his absence, that judgment is known to be an ex parte judgment and the decree drawn on the basis of that judgment is known as an ex parte decree. It refers only to a judgment and a decree. In the event a judgment is rendered when the defendant fails to defend the suit by his absence, that judgment is known to be an ex parte judgment and the decree drawn on the basis of that judgment is known as an ex parte decree. Hence, even for an ex parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the Court has applied its mind to the pleading, relief claimed thereunder, the evidence and the conclusion arrived at by the Court on the above. 20. It is also relevant to point out that under Section 96(2) of the Code of Civil Procedure, an appeal may lie from an original decree passed ex parte. Two remedies are available to an aggrieved person to question the ex parte decree. One is that he may file an application to set aside the ex parte decree as provided under Order IX Rule 13 of Code of Civil Procedure. In such event, the Court which passed the judgment and decree will have to consider the reasons for setting aside such judgment and decree, which may be more or less the explanation as to the failure of nonappearance. The other remedy is that he may prefer an appeal under Section 96(2) and in such event, the appellate Court should necessarily go into the merits and find out whether the decree could be set aside or not. In case an appeal is laid, in the absence of reasons in the judgment, the appellate Court has to necessarily remand the case to the trial Court for fresh consideration. For that reason, the judgment should contain the reasons and should be in conformity with the provisions of Section 2(9) read with Order XX Rule 4 of the Code of Civil Procedure." 36. Even though the Trial Court was expected to consider the question as to whether the respondent has been ready and willing to perform her part of the contract throughout and that she is entitled to a discretionary remedy, unfortunately, no such attempt was made. The legal principles laid down by the Supreme Court, while considering a suit for specific performance, were all ignored by the learned Trial Judge. 37. The legal principles laid down by the Supreme Court, while considering a suit for specific performance, were all ignored by the learned Trial Judge. 37. The exparte judgment and decree, in the subject case, would not satisfy Sub-Sections (2) and (9) of Section 2 and Section 33 of Code of Civil Procedure, 1908. There was no judicial determination at all by the learned Trial Judge. The judgment and decree passed by the Trial Court does not contain any indication that the learned Judge has applied its mind to the facts of the case to resolve the matter in dispute. This aspect was not considered by the learned Judge, while rejecting the application filed by the petitioners to condone the delay. I am, therefore, of the view that a serious miscarriage would result by not condoning the delay and permitting the exparte judgment to remain. I am also of the view that interest of justice would be sub-served only by allowing the application filed by the petitioners. DISPOSITION: 38. In the result, the order dated 18 July, 2011 is set aside. The application in I.A.No.188 of 2010 is allowed. The learned Trial Judge is directed to consider the application filed by the petitioners to set aside the expartedecree, in the light of the judgments of the Supreme Court in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan [ (2003) 1 SCC 197 ], Ramesh Chand Ardawatiya v. Anil Panjwani [AIR 2003 SC 2508], Maya Devi vs. Lalta Prasad [ 2015(5) SCC 588 ] and the Division Bench judgment in Meenakshisundaram Textiles vs. Valliammal Textiles, [ 2011(3) CTC 168 ]. There shall be a further direction to dispose of the application, within a period of six weeks from the date of receipt or production of a copy of this order. 39. In the upshot, I allow the Civil Revision Petition. No costs.