The main legal point established is that specific performance is a discretionary remedy, and the plaintiff must come to the court with clean hands and be ready and willing to perform the contractual obligation.

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. 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 attem