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2000 DIGILAW 387 (KAR)

LAKSHMI RAMAN MALU v. VENKATAMMA

2000-06-08

MOHAMED ANWAR

body2000
MOHAMED ANWAR, J. ( 1 ) THESE revision petitions filed by the common petitioner against different respondents are taken up together for disposal as their decision rests on common question of law. ( 2 ) THE petitioner herein is common plaintiff in O. S. Nos. 126 to 130 of 1995 instituted in the Trial Court against respective respondents for the relief of injunction prohibiting them from alienating the respective items of suit properties or from creating encumbrance with respect thereto in favour of any third party. In the plaints it is averred that each of defendant 1 in the aforesaid suits, had executed the suit agreement for sale in plaintiffs favour in respect of his suit property. The suits are being contested by respective defendant 1 therein. It is an undisputed fact that temporary injunction in plaintiffs favour in each of the suit was also granted by the Trial Court, restraining defendants from effecting any transfer or alienation of the suit properties. Those suits were filed in 1995. Subsequently, in the year 1997, the suit properties were stated to have been, admittedly, acquired by the Government for KIADB (Karnataka industrial Area Development Board) for the formation of Industrial Estate. ( 3 ) THE acquisition of the suit properties made the plaintiff to make his respective applications under Order 6, Rule 17 of the CPC numbered as LA. V in each of the above suit seeking permission of the Trial Court to carry out necessary amendment of the plaint as under. I. "ll (a) Plaintiff submits that after the filing of the suit, the plaint schedule properties have been subject-matter of acquisition by the KIADB, which the defendants have informed the plaintiff recently. Therefore, plaintiff submits that as the land has been acquired, the plaintiff is left with no alternative than to seek for recovery of the amounts advanced under the original of the sale agreement and also recover liquidated damages under Clause 14 of the agreement. Plaintiff submits that the plaintiff has paid a sum of Rs. 9,000/- as advance under Clause 5 of the agreement. Plaintiff further submits that as the agreement was with respect to purchase of immoveable property, the plaintiff is entitled to liquidated damages". II. To add para 1kb) after para 11 (a):"ll (B) Plaintiff submits that the plaintiff reliably learns that the rate fixed by the acquiring authority per acre is Rs. 9,000/- as advance under Clause 5 of the agreement. Plaintiff further submits that as the agreement was with respect to purchase of immoveable property, the plaintiff is entitled to liquidated damages". II. To add para 1kb) after para 11 (a):"ll (B) Plaintiff submits that the plaintiff reliably learns that the rate fixed by the acquiring authority per acre is Rs. 6 lakhs and the plaintiff has agreed to purchase 1 acre of land under the agreement. Therefore, since the I defendant has committed default in not complying with the terms of the agreement for nearly three years, the plaintiff has been put to great loss and injury and his valuable right to the property has been lost on account of the breach committed by the defendant. Therefore, the plaintiff is entitled to half the compensation amount liable to be received by the defendant and the plaintiff quantifies the liquidated damages at rs. 4 lakhs under Clause 14 of the agreement. Plaintiff further submits that since the acquisition has come after the filing of the suit and on account of the breach committed by the I defendant, the plaintiff, in equity, is entitled to liquidated damages as quantified at 50% of the compensation amount payable to the defendants in the acquisition proceedings. Since the loss incurred by the plaintiff cannot be compensated in terms of money and the said land has been subjected to acquisition, the plaintiff is claiming 50% of the compensation amount as liquidated damages at the rate of Rs. 3 lakhs per acre. Accordingly the plaintiff is claiming a sum of Rs. 9,000/- together with the liquidated damages of Rs. 3,00,000/- and the plaintiff is prepared to pay necessary Court fee after the amendment is allowed". To add para 12 (a) after para 12:"12 (A) Plaintiff further submits that the cause of action for recovery of money and liquidated damages arose on the date on which the lands were acquired by KIADB de die in diem". To add prayer (c) after prayer (b):" (C) Plaintiff further submits that this Hon'ble Court be pleased to pass a judgment and decree in favour of the plaintiff and against the first defendant for a sum of Rs. 3,09,000/- together with costs". ( 4 ) THE said applications were opposed by defendant No. 1 in each of the suit. To add prayer (c) after prayer (b):" (C) Plaintiff further submits that this Hon'ble Court be pleased to pass a judgment and decree in favour of the plaintiff and against the first defendant for a sum of Rs. 3,09,000/- together with costs". ( 4 ) THE said applications were opposed by defendant No. 1 in each of the suit. Then the Trial Judge proceeded to pass its order impugned herein rejecting them mainly on the ground that if the prayer in those applications is allowed, the Trial Court will lose jurisdiction to entertain and to try those suits. Section 21 of Specific Relief Act, 1963 is the relevant section for just and proper decision on the plaintiffs said LA. V. But, the Trial Court has ignored consideration of the relevant provisions of Section 21, with the result it has misdirected itself in passing the impugned order. The material provisions of Section 21 of the Act are extracted below. "21. Power to award compensation in certain case. (1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. (2) If in any such suit, the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (3 ). . . . . . . (4 ). . . . . . . (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: provided that where the plaintiff has not claimed any such compensation in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation". ( 5 ) IN this regard Section 22 also needs consideration which runs:"section 22. Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for. Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for. (a) Possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under Section 21". (emphasis supplied) ( 6 ) A combined reading of aforestated relevant provisions of the Specific relief Act make it clear that if for the reasons beyond the control of the parties when execution of the specific performance of the contract for sale becomes impossible, or gets frustrated on account of any supervening circumstances, then the plaintiff is entitled to claim compensation by way of liquidated damages and that if he seeks to incorporate in the plaint such relief as also to add therein further pleas supporting that relief by way of its amendment, the Court has to allow the plea for such amendment of plaint at any stage of the suit proceedings, that the Trial court may lose its jurisdiction is not a valid ground to deny the amendment, as it would defeat the ends of justice. If the Trial Court finds that the trial of the suit is beyond its competence on account of its pecuniary jurisdiction, then it has to direct the plaintiff to present the plaint in a proper forum according to law. In that view of the matter plaintiffs I. A. No. V are entitled to be allowed. If the Trial Court finds that the trial of the suit is beyond its competence on account of its pecuniary jurisdiction, then it has to direct the plaintiff to present the plaint in a proper forum according to law. In that view of the matter plaintiffs I. A. No. V are entitled to be allowed. Therefore, the impugned orders of the court below cannot be sustained and are liable to be set aside. ( 7 ) HENCE, for the reasons aforesaid all these revisions are allowed. The impugned orders of the Court below are set aside. LA. V under order 6, Rule 17 of the CPC filed by the petitioner in O. S. Nos. 126 to 130 of 1995 pending on the file of the. Court below are allowed, permitting the petitioner-plaintiff to carry out amendment of the respective plaints as prayed in those I. As. The Trial Court shall proceed further in the said suits according to law. --- *** --- .