The court must consider the case of the plaintiff on merits after giving an opportunity to adduce evidence, and the judgment must satisfy the requirements of the law.

JUDGMENT

1. This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as, "the Code") being aggrieved by the judgment and decree dated 14.10.2016, passed by learned Ist Additional Civil Judge (Senior Division), Dehradun in Original Suit No. 274 of 2014, "Deepak Kapoor and two others Vs. Sri Ashok D. Mehta and others," whereby in a suit for specific performance of contract with ancillary relief of perpetual prohibitory injunction, a decree for specific performance of contract is refused and granted alternate relief of refund of earnest money a sum of Rs.25,00,000/- with compensation a sum of Rs.25,00,000/-.

2. Brief facts of the case are that the appellants- plaintiffs filed the suit seeking specific performance of the Agreement to Sell dated 03.10.2006, registered on 27.10.2006. It was pleaded by the appellants/plaintiffs that the respondent nos. 1 and 2/defendants were owners of property No. 185, Rajpur Road, Dehradun, measuring 2400.00 Sq. yards or 2007.00 Sq. mtrs. with a residential house. The respondent nos. 1 and 2 had entered into an agreement to sell with the appellants and proforma respondent no.6 on 03.10.2006 for the sale of the above mentioned property for a sale consideration of Rs.69,00,000.00/-. This agreement was registered on 27.10.2006. As per Clause No. 7 of the Agreement, it was agreed that the sale deed shall be executed within a period of three months from the date of the agreement or within one month from the date the probate was granted with regard to the Will of late Smt. Dorothy Margaret Mehta. According to this agreement, Rs.25,00,000.00/ was paid towards earnest money. The appellants were always ready to perform on their part of contract. But, the respondent nos.1 and 2 executed a Sale Deed dated 14.03.2012 in favour of the respondent nos.3 to 5, which was registered on 16.06.2012. The respondent nos. 3 to 5 had knowledge of the agreement dated 03.10.2006. The respondent nos.1 and 2 had no right or authority to sell the property-in-question and hence, they had committed breach of the Agreement to Sell dated 03.10.2006, in which, there was a specific clause of specific performance and hence the respondent nos. 1 and 2 had no right to transfer the property or execute the sale deed in favour of anyone except the appellants and proforma respondent no.6.

3. The appellants-plaintiffs instituted the suit for decree of specific performance of contract and in alternate refund of money with ancillary relief of perpetual prohibitory injunction.

4. Despite sufficient service of summons, the respondent nos. 1 to 5 failed to file written statement. The suit was proceeded ex-parte against the respondent no.4 on 23.08.2014 and on his application the said order was recalled on 11.04.2016. On 06.10.2016, learned trial court closed the opportunity of the respondent nos.1 and 2 to file written statement and at the same time rejected the application of the respondent nos.3 to 5 for accepting written statement on record. Learned trial court allowed the application of the appellants, filed under Order 8 Rule 10 of the Code and fixed the case for delivery of judgment. Learned trial court passed the impugned judgment on 14.10.2016.

5. Heard learned counsel for the parties and perused the record.

6. Shri Neeraj Garg, learned counsel for the appellants submitted that while deciding the application of the appellants, filed under Order 8 Rule 10 of the Code, learned trial court fixed the case for delivery of judgment, without granting any opportunity to lead evidence to the appellants-plaintiffs; the procedure adopted by learned trial court is unknown to law. Learned counsel submitted that it is duty of the court to consider the case of the appellants-plaintiffs on merits and the judgment pronounced under Order 8 Rule 10 of the Code must satisfy the requirements of Section 2 (9) of the Code. In support of this plea, after arguments, judgment of the Hon'ble Supreme Court, passed in "Shan