Court has discretion in the matter.

Appellant is the plaintiff, a Muslim Religious Society of Coimbatore, represented by its President and Secretary. The suit which the learned Subordinate Judge of Coimbatore dismissed with costs, was laid for the specific performance of a contract Exhibit A-1, dated 15th December, 1946, against the 1st defendant by which he agreed to convey to the plaintiff the suit property for Rs. 7,300. It is common ground that the society paid the 1st defendant a sum of Rs. 1,000 that day. The suit was filed on 16th October, 1947. It was. dismissed mainly on a finding that the suit agreement had been materially altered by the top and bottom portion of it, which contained a material recital on the reverse being scissored off. This is said to have contained a recital which made time given for completion, which was 30 days, the essence of the contract.

The suit property, 49 cents in extent on which there was a rice mill and a residential house originally belonged to one Hussain Sahib, the late husband of Fatima Beebi the 4th defendant. Hussain Sahib became indebted to a local Nidhi who got a decree and brought the property to sale in execution in 1938. The 4th defendant, who was in residence in the house on the suit site desired to continue living there and approached the 1st defendant, who had a mortgage on the suit property and was a lessee of the rice mill on the site for about 20 years, for assistance. The 1st defendant bought the suit property from the Nidhi under a sale deed Exhibit B-6, dated 14th February, 1940, the case of the 4th defendant being that there was an understanding that he would reconvey the property to her on payment of the sale price. The 4th defendant then in 1946 sold all her rights in the entire property on 1st May, 1946, by a sale deed Exhibit A-2 to the plaintiff society. It appears that a small portion of this site had been used as a Muslim religious burial ground. It is in this back-ground that the plaintiff-society and the 1st defendant came to a settlement with the assistance of some mediators and Exhibit A-1 was written in the shop of one Raya Sahib by his clerk Krishnaswami Ayyangar (P.W. 3). Jamesha Rowther (P.W. 1) who was the President of the plaintiff-society, was present at the time. First defendant admitted his signature on Exhibit A-1 which contains a clear agreement by him to sell the suit property as decided by mediators to the plaintiff-society. Exhibit A-1 contains an acknowledgment of receipt by the 1st defendant of Rs. 1,000 in cash, and an undertaking to execute a deed of cancellation of the sale in his favour within a period of one month and to receive the balance of consideration of Rs. 6,300 in the presence of the Registrar.

A registered letter Exhibit A-3 was sent on behalf of the plaintiff-society signed by the President dated 10th January, 1947, asking the 1st defendant to receive the money and to complete the transaction. This letter was not delivered, and was returned with the endorsement that the addressee was not known and no house number was given. Exhibit A-3 was addressed to the 1st defendant T. Krishnaswami Nayudu, Town Street, Papanaickenpalayam, Coimbatore. A telegram evidenced by a receipt Exhibit A-3(b) is said to have been sent by P.W. 1 to the 1st defendant on 13th January, 1947, and another registered letter Exhibit A-3(a), dated 17th January, 1947, in an envelope which was still unopened at the time of the hearing of the appeal was also returned by the Post Office undelivered. In the suit itself summons could not be served on the ist defendant in the ordinary way, and he only made an appearance after substituted service. Prima facie it would appear as though the 1st defendant was successfully evading the plaintiff and service of these registered letters. The learned Subordinate Judge in view of his finding that the suit agreement Exhibit A-1 was materially altered did not think it necessary to go into the question as to whether it was the 1st defendant who really def