The main legal point established in the judgment is that the court may proceed ex parte and uphold an ex parte decree for specific performance of a contract if there is sufficient material for the trial court to order substituted service and no case for the defendant to defend based on the evidence presented.

1. Admit.

2. Notice after admission made returnable forthwith. By consent heard both the sides for final disposal.

3. The appeal is filed against the judgment and decree of Special Civil Suit No.487 of 1998 which was pending in the Court of the Civil Judge, Senior Division, Aurangabad. The trial Court has given decree of specific performance of contract in favour of respondent No.1. It is ex parte decree.

4. The suit was filed in respect of two agricultural lands bearing Gat Nos.155 and 209 situated at village Teesgaon, Tahsil and District Aurangabad. It is the case of plaintiff that defendants had agreed with him to sell the suit property in the month of December 1993 and the terms and conditions of the agreement were reduced into writing and were signed by the defendant No.1 for himself and as Power of Attorney for defendant Nos.2 to 4 and defendant No.9. Defendant Nos.1 to 3 are brothers inter se. Defendant No.4 is the wife of deceased brother of defendant Nos.1 to 3 and defendant Nos.5 to 8 are sons of defendant No.4 born from deceased brother of defendant No.1. Defendant Nos.9 and 10 are sisters of defendant Nos.1 to 3.

5. The predecessor of these defendants, Mumtazuddin Khan, father of defendant No.1, was the owner of the suit property. After the death of the owner, defendants became owner of the suit property. The defendants are Muslims.

6. It is the case of the plaintiff that the agreed consideration was Rs.13,50,000/-. It is the case of the plaintiff that at the time of agreement he had made payment of Rs.1,00,000/- by cheque and cash and the remaining amount was to be paid on the date of execution of the sale deed. It is contended that at the time of agreement, defendant No.10 was not available so she had not signed on the agreement. It is contended that subsequently she joined to the aforesaid transaction, she executed agreement in respect of her share on 6-7-1994 and the price of her share was fixed as Rs.1,35,000/- and this was in addition to the aforesaid consideration. It is contended that the amount of Rs.25,000/- was paid to her also as earnest money. It is contended that the defendants were expected to move the authorities like Income Tax office and also the CIDCO for getting necessary permission and no objection as the property is situated within the development area of CIDCO.

7. It is contended that subsequently, in January 1995 defendant No.10 approached the plaintiff and she took additional amount of Rs.10,000/- as she was in need of money. It is contended that she gave separate receipt in respect of that amount.

8. It is the case of the plaintiff that due to Government order, it became necessary to obtain no objection of CIDCO authority for alienation of the property and so transaction could not be completed immediately. It is contended that as per the scheme prepared by CIDCO, 25% of the land is required to be given to CIDCO when property is to be developed. It is contented that it was agreed that plaintiff was to get compensation in respect of part of property acquired by Government.

9. It is the case of the plaintiff that on 4-3-1994 Madhav Sali and his sons filed application before the Additional Tahsildar, Aurangabad for surrendering tenancy rights and for handing over possession of the aforesaid land. In that proceeding plaintiff was arrayed as respondent No.1 as he was the prospective purchaser. It is contended that surrender of tenancy rights of the tenant was accepted by the Tenancy Court and it was agreed that possession was to be given to the plaintiff. It is contended that after the said proceeding, possession was given of the two properties to the plaintiff and then additional amount was given by the plaintiff to the defendants like Rs.4,15,000/-. It is contended that out of that amount, the amount of Rs.25,000/- was given in cash and Rs.75,000/- was given by cheque No.686520 dated 7- 9-1995 drawn on State Bank of India to defendant No.2 and accordingly receipt was given by defendan