Mere delay in filing the suit is not a ground for refusing specific performance. The court's discretion to decree specific performance is guided by judicial principles and is not arbitrary.

1. Plaintiff is the appellant in this Second Appeal. The suit is for specific performance of a contract of sale of a building. The building belongs to the first defendant. On 8-7-1118 he agreed to sell it to the plaintiff for Rs. 500/- and received from the plaintiff on that date Rs. 100 as advance purchase money. Subsequently, the first defendant refused to execute the sale deed. The plaintiff filed this suit on 7-7-1121 for specific performance of the contract depositing in court the balance purchase money of Rs. 400. The second defendant is a tenant of the building under the first defendant. Defendants 3 to 8 are persons who reside in the building along with the second defendant. Defendants 1 and 2 contested the suit. The first defendant admitted the contract of sale, but contended that the plaintiff subsequently cancelled the contract. The second defendant contended that he was living in the house with his family under a coolicharth executed by him to the first defendant and that he was not liable to be evicted from the house. The trial court found that the plaintiff had not cancelled the agreement and gave a decree for specific performance. The relief against the second defendant was disallowed. It was held that the 2nd defendant could be evicted from the house only in a fresh suit instituted by the plaintiff after he acquired ownership of the same.

2. In appeal filed by the first defendant the District Court held that the delay in filing the suit raised a presumption that the plaintiff cancelled the agreement, and on the basis of this presumption and acting on the evidence of the first defendant that court held that the plaintiff was not entitled to a decree for specific performance. The suit was, therefore, dismissed with costs.

3. The question for consideration in this Second Appeal is whether the plaintiff has cancelled the contract of sale of the house as contended by the defendant and whether the plaintiff is not entitled to a decree for specific performance by reason of the delay in filing the suit. The plaintiff's excuse for the delay in filing the suit is that the first defendant was promising to execute the sale deed, that he said that the title deed relating to the house was in Tellicherry, and that he promised to execute the sale deed after getting the document. The first defendant had purchased this house as per document No. 360/1108. He was required by the plaintiff to produce this document in court. In the statement filed by the first defendant on 1-1-1122 it was stated that the document was missing.

In the light of this statement it may be taken that there is some basis for the contention of the plaintiff that the 1st defendant was putting off the execution of the sale deed on the ground that the title deed relating to the house was not available. The house is situated in Mattancherry and in the year 1118 there was a scare that Cochin might be bombed by the Japanese and consequently a good number of people evacuated from the place. The first defendant went and resided at Edappilly and it is alleged that all his valuable documents were taken to Tellicherry.

4. With regard to the alleged cancellation of the contract by the plaintiff what the first defendant swears as Dw. 4 is that the plaintiff sent word to him through Dw. 3 that he cancelled the sale as he had no money with him for taking the sale deed. But what Dw. 3 says is that the plaintiff told him that he did not want the house as it was not worth Rs. 500. Dw. 3 is the brother-in-law of the first defendant. What the second defendant swears as Dw.1 is that the plaintiff told him that he did not want the house since the second defendant was not prepared to vacate the same. Thus it will be seen that the defence evidence relating to the reason for the failure on the part of the plaintiff to take the sale deed is not consistent.

5. The lower appellate court has relied on the evidence of Pw. 2 to show that the plaintiff cancelled the contract. Pw. 2