The discretionary nature of specific performance and the duty of care in contractual matters were central to the judgment.

Rajiv Sahai Endlaw, J.

1. The appeal impugns the judgment and decree dated 13.04.1999 of the Court of Additional District Judge (ADJ), Delhi of dismissal of suit No.1033/1993 filed by the appellant for specific performance of an Agreement dated 12.06.1989 by the respondent Smt. Laxmi Bai of sale of property No. J-167, ad-measuring 125 sq. yds., Saket, New Delhi to the appellant/plaintiff for sale consideration of Rs.4,75,000/-.

2. The appeal was admitted for hearing and vide ex parte ad-interim order dated 13.09.1999, the respondent restrained from transferring, alienating or creating any third party interest in the property or parting with possession of the property. It was the stand of the respondent during the hearing on 09.02.2000 that the property in question already stood transferred in favour of one Smt. Shashi on 10.12.1991 and that the deceased respondent Smt. Laxmi Bai was not at all concerned with the property. Observing, that in view of the said fact the ex-parte ad-interim order did not affect the respondent, the same was on 9th February, 2000 made absolute during the pendency of the appeal.

3. The appeal was on 15.05.2009 dismissed in default of appearance of either of the parties. CM No.10084/2010 was filed by the appellant for restoration and notice whereof was ordered to be issued. Upon service of notice of such application on the counsel earlier appearing for the respondent and notwithstanding his statement that the file had been taken away from him, vide order dated 09.02.2011 the appeal was restored to its original position subject to payment of costs of Rs.5,000/-. The said counsel on 02.05.2011 informed of the demise of the respondent. Application for substitution of Sh. Sukhdev, son of the deceased respondent was filed and notice whereof was ordered to be issued. In response thereto, the said Shri Sukhdev filed a reply pleading, that the respondent Smt. Laxmi Bai expired on 13th October, 2000 and the application for substitution of legal heirs had been filed after 11 years; that the deceased Smt. Laxmi Bai during her life time had given the said property to her daughter Ms. Sashi; that the deceased Laxmi Bai was survived by two sons i.e. Shri Sukhdev and Shri Sukha Ram and a daughter Ms. Shashi; that Ms. Sashi had also since died leaving a son namely Shri Anil Kumar and a daughter namely Ms. Sangeeta. Shri Sukhdev, after filing the reply stopped appearing. The appellant thereafter filed another application seeking impleadment of Shri Anil Kumar and Ms. Sangeeta. No impleadment of Shri Sukha Ram was sought. Shri Anil Kumar upon being served with the notice appeared and stated that he did not desire to contest the suit or the applications. However the said Shri Anil Kumar on 4th October, 2013 stated that the title documents of the property were in his custody. On inquiry as to in what capacity, he stated, that since he was the owner of the property. Inspite of explaining to him that if he claimed to be the owner, he should contest the proceedings, he also has stopped appearing. Vide order dated 30th October, 2013 the abatement of the appeal was set aside and the delay in applying for substitution of legal representatives condoned and the legal representatives of the deceased respondent substituted. Today Ms. Veena Jain Malhotra, Advocate engaged by the Legal Aid has appeared for the respondent Ms. Sangeeta and states that she has no file/papers, and the appellant be directed to supply complete paper book to her.

4. However the appeal being of the year 1999, it has been deemed expedient to hear the counsel for the appellant to gauge whether there is any need to hear the counsel for the only contesting respondent viz. Ms. Sangeeta.

5. At the outset, it may be stated that though the Trial Court record had been requisitioned to this Court but appears to have been sent back when the appeal was dismissed in default and upon being re-requisitioned, it is informed that the same has been weeded out/de