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2009 DIGILAW 347 (CHH)

Ramakant Dixit v. Sandhya Bajpai

2009-12-02

DHIRENDRA MISHRA, R.N.CHANDRAKAR

body2009
JUDGMENT (Delivered on 2nd December, 2009) Per Dhirendra Mishra, J 1. This first appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 29th November, 2002 passed in Civil Suit No.35-A/01 whereby the learned II Additional District Judge, Baloda Bazar has decreed the suit for specific performance of contract of original plaintiff Rajkumar Bajpai. 2. Respondents 1(a), 1(b) & 1(c) are legal representative of the plaintiff Rajkumar Bajpai, who died during pendency of the appeal. (Parties shall hereinafter be referred to as per their description before the trial Court.) 3. The plaintiff filed a suit for specific performance of contract against defendant-Ramakant Dixit and his brother Chandrakant- defendant No.2 with the averments that they entered into an agreement of sale with respect to their undivided property with house bearing Plot No.39 (piece), Sheet No.14 C in Village-Baloda Bazar, P.H.No.77/A/11/A, Rani Mandal, Tahsil-Baloda Bazar (1/2 share of both the share holders i.e. 1/4th part of the total land of size 24 + x 110 ft. = 2695 sq.ft. approximately), situated on the main road, Baloda Bazar (hereinafter referred to as "the first property"), which would fall in share of defendant No.1 after partition. 4. Case of the plaintiff, in brief, is that defendants No. 1 & 2 are brothers. The plaintiff and defendants entered into an agreement on 1.10.1998 for sale of defendant No.1's share of plot area 2695 sq.ft. with house, which was recorded in the name of defendant No.1 and his partner Bulakidas Mundra at the time of agreement, for a consideration of Rs.7 lacs and received a sum of Rs.3 lacs in advance. At the time agreement, the property was undivided. As per conditions of agreement, boundaries were to be fixed after partition and tenants of the defendants, who were in possession, were to be evicted by 30th January, 2001. It was further agreed that defendant No.1 shall get his name mutated in the revenue papers after registered partition, and they shall also get the lease of the plot renewed by 30th January, 2001, and after fulfilling the above conditions, they shall execute registered sale deed in favour of the plaintiff after obtaining balance of consideration of Rs.4 lacs. In case, the defendants fail to fulfill the aforesaid conditions by 30th January, 2001, in the alternative, they shall execute sale deed of another plot measuring 100x100=10000 sq.ft. In case, the defendants fail to fulfill the aforesaid conditions by 30th January, 2001, in the alternative, they shall execute sale deed of another plot measuring 100x100=10000 sq.ft. from their land bearing Khasra No.1149/2, area 0.142 (hereinafter referred to as "the second property") at the rate of Rs. 50/- per sq.ft. after obtaining remaining consideration of Rs.2 lacs in the alternative. 5. It was further averred that in that contingency, it will be the option of the plaintiff to purchase either of the two properties and the defendants shall be bound to execute the sale deed of either of the two properties at the option of the plaintiff. Since the defendants failed to effect partition of the first agreed land by registered partition deed between Bulakidas Mundra and defendants No. 1 & 2, and were also not able to get the land mutated in the name of defendant No.1 and renew the lease despite repeated reminders and written notice and the first property is still occupied by the tenants, a suit for specific performance of contract with respect to the second property was filed. It was pleaded that though the plaintiff expressed his readiness and willingness to pay Rs.2 lacs and asked the defendants to execute the sale deed after receiving remaining consideration of Rs.2 lacs, the plaintiff also served the defendants with a notice dated 4.8.2000 through their advocate, however, defendant No.1 vide his reply dated 5.2.2001 denied to execute the sale deed. 6. Defendants No. 1 & 2, in their written statement, denied the averments in the plaint. They specifically denied that there was any stipulation in the agreement that the partition was to be effected through registered sale deed and that defendant No.1 was required to get his name mutated over his share after partition. It was pleaded that there is no condition in the agreement regarding renewal of lease of his share by 30th January, 2001. The tenants have already vacated the house, which falls in the share of defendant No.1 and which was agreed to be sold to the plaintiff. The total area of the first property was 10780 sq.ft. and on some portion of it, house is constructed and rest of the land is vacant. The first property is recorded in the name of Bulakidas Mundra and Chandrakant Dixit-defendant No.2. The total area of the first property was 10780 sq.ft. and on some portion of it, house is constructed and rest of the land is vacant. The first property is recorded in the name of Bulakidas Mundra and Chandrakant Dixit-defendant No.2. Defendant No.1 has 1/4th share in the said property, which is about 24 + x 110 sq.ft.=2695 sq.ft. His share is in the western portion of the first property. The plaintiff had agreed to purchase the aforesaid property in November, 1998 for a consideration of Rs.7 lacs and paid Rs.3 lacs as advance to defendant No.1. Rest of the consideration of Rs.4 lacs was to be paid by 30th July, 1999. However, if the tenants are in possession till that date, further time of 18 months for getting the accommodation vacated was allowed. If the above two conditions could not be fulfilled by 30th January, 2001, in the alternative, it was agreed to execute sale deed of the second property in favour of the plaintiff after receiving balance consideration of Rs.2 lacs. Mutual partition took place between Bulakidas Mundra, Chandrakant Dixit and Ramakant Dixit on 1.2.1999 and the plaintiff was allotted 1/4th share in the western portion of the first property, whereas 1/4th share of the eastern property fell in share of defendant No.2 and middle partition fell in share of Bulakidas Mundra. A memorandum of acceptance of mutual partition was recorded on 29.7.2000 by the three share holders. On the basis of aforesaid partition, Bulakidas Mundra, Chandrakant and Dr. Ramakant Dixit are in peaceful possession. 7. Defendant No.1 vide its notice dated 17.7.2000 called upon the plaintiff to pay the balance consideration as per agreement and get the registered sale deed executed with respect to the first property by the end of July, 2000. The defendants also served written notices on 24.7.2000 and 1.8.2000 reiterating their willingness to execute their part of the contract, however, the plaintiff himself resiled from performing his part of the contract on the false pretext, contrary to the terms and conditions of agreement. The stipulation in agreement with respect to sale of the second property is vague as the portion of 10000 sq.ft. out of total area 15225 sq.ft. of the second property, has not been specifically mentioned. The allegations in the plaint regarding dispute between defendant No.1 and 2 with respect to the first property has been denied. 8. The stipulation in agreement with respect to sale of the second property is vague as the portion of 10000 sq.ft. out of total area 15225 sq.ft. of the second property, has not been specifically mentioned. The allegations in the plaint regarding dispute between defendant No.1 and 2 with respect to the first property has been denied. 8. On the basis of pleadings of the respective parties, the trial Court framed issues as mentioned in para-14 of the impugned judgment. 9. The parties to the suit filed documents in support of their respective claims and thereafter, the plaintiff examined R.R. Tiwari-Dy. Registrar (PW-1), Rajkumar Bajpai-plaintiff (PW-2), Kamta Prasad Pandey-Retired Accountant (PW-3), Hemraj Sahu-Nuzul Inspector (PW-4) and Nirmal Verma (PW-5). Whereas defendants examined himself as DW-1, AK Trivedi (DW-2), Suresh Chandra Divedi (DW-3) and Bulakidas Mudra (DW-4). 10. Shri Pramod K. Verma, learned Sr. Advocate for the appellants, submitted that the partition had already taken place amongst Bulakidas, Chandrakant and defendant No.1 on 1.2.1999. The defendant No.1 had himself served a notice for execution of sale deed to the plaintiff that they are prepared to execute the sale deed and the sale deed may be signed by Chandrakant and Bulakidas both. However, the plaintiff failed to get the sale deed executed. There was no condition in the agreement about renewal of Nuzul lease as the lease was perpetual lease and renewal of Nuzual is by right. The defendants have served the notice of Ex.D/4 to the plaintiff stating therein that the tenants have already vacated the first property and the defendant is prepared to hand over vacant possession of the land. In the other notice, identity of the land as well as no objection of Chandrakant and Bulakidas was also intimated and it was stated that a mutual partition has already taken place amongst the three. The question of transfer of the second property would have arisen only in the event the defendants failed to executed sale deed of the first property. The plaintiff could not have unilaterally arrived at a conclusion that the defendants have failed to fulfill the conditions stipulated in the agreement, and it was for the Court to consider the above aspect whether the defendants were willing to perform their part of the contract or not? The plaintiff could not have unilaterally arrived at a conclusion that the defendants have failed to fulfill the conditions stipulated in the agreement, and it was for the Court to consider the above aspect whether the defendants were willing to perform their part of the contract or not? Since the defendants, who were party to the agreement and defendant No.1 was also the recorded owner of the first property, exercise of option by the plaintiff would arise only on failure of the defendants to execute sale deed with respect to the first property. The findings of the trial Court are based on improper appreciation of evidence. Relying upon the judgment of the Hon'ble Supreme Court in the matter of Bal Krishna and another Vs. Bhagwan Das (Dead) by L.Rs. and others, reported in 2008 AIR SCW 2467, it was submitted that the relief of specific performance is a discretionary relief and the Court, while exercising its discretion to order specific performance, has to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of contract. 11. On the other hand, Shri Manindra Shrivastava, learned Sr. Advocate appearing for the respondents, would argue that the defendants executed the agreement of Annexure P/11 and agreed to sell the share of defendant No.1 in the first property. It was further agreed upon by them that the land shall be legally partitioned and duly marked. They were also duty bound to get the land vacated latest by 30th January, 2001. Renewal of lease was also a condition precedent for execution of sale deed of the first property. There was a clear stipulation in the agreement that if the defendants fail to fulfill the aforesaid conditions by the stipulated date, in that condition, they shall execute sale deed with respect to 10000 sq.ft. land of the second property and it was at the option of the plaintiff that he could get sale deed executed from the defendants of either of the two properties. Referring to the evidence of R.R. Tiwari-Dy. Registrar in the Registration Office (PW-1), it was argued that the sale deed of Nuzul land could be executed only when the name of vendor is recorded in the Nuzul Khasra. Referring to the evidence of R.R. Tiwari-Dy. Registrar in the Registration Office (PW-1), it was argued that the sale deed of Nuzul land could be executed only when the name of vendor is recorded in the Nuzul Khasra. Referring to the evidence of Rajkumar Bajpai (PW-2), it was argued that since the defendants could not effect partition with respect to the first property within the stipulated time and could not get the property recorded in the name of defendant No.1and also could not get the house vacated from its tenants, the plaintiff insisted for execution of sale deed of the second property. The agreemented first property was recorded in the name of Bulakidas and Chandrakant and the name of Ramakant was not entered, whereas, the second property was recorded in the name of both the defendants vide Maintenance Khasra of Ex.P/8 and P/10. From the documents available on record, it is also established that there was a dispute between Ramakant and his brother Chandrakant with respect to ownership of the first property. 12. We have heard learned counsel for the parties and gone through the pleadings of the respective parties, including oral and documentary evidence available on record. 13. The trial Court decreed the suit with the following findings: (i) that on 1.10.1998 the parties had entered into an agreement for sale of defendant No.1's share in the first property, shares of Bulakidas and defendant No.2 were undivided, which was subsequently to be clarified; the agreement was with respect to share of defendant No.1 after partition; the defendants were required to complete the revenue record after registered partition by 30th January, 2001 and get the legal documents prepared; they were also required to execute sale deed for a consideration of Rs.7 lacs after getting the suit house vacated. However, it is not proved that defendant No.1 also had any share in the disputed land, there was no condition of renewal of the lease deed or the registered partition of the property; (ii) that as per conditions of the agreement, the defendants were required to execute registered sale deed by 25th July, 1999 or extended period of 30th January, 2001 after getting the property legally partitioned and after getting it vacated; (iii) if the aforesaid conditions are not fulfilled by 30th January, 2001, the defendants were required to execute a sale deed of the second property of area 100x100=10000 sq.ft., which is adjacent to the house of Shivkumar Bajpai behind Dashhara ground and known as "Byarah Wala Part", which is a part of Khasra No.1149/2, area 0.142 hectare (200x100=20000 sq.ft.) at the rate of Rs.50/- per sq.ft. for a total consideration of Rs.5 lacs in favour of the plaintiff; (iv) the agreement for the first property was for a consideration of Rs.7 lacs and for the alternative property, it was for Rs.5 lacs and defendants No. 1 & 2 had received Rs.3 lacs as advance in lieu of the agreement dated 1.10.1998; (v) the defendants were bound to execute sale deed of either of the above two properties at the option of the plaintiff and deliver the possession; (vi) the defendant No.1 did not send the renewed lease deed after partition of his share of 2695 sq.ft. of Plot No.39 to the plaintiff; (vii) the defendants could not execute valid sale deed of Plot No.39 due to dispute between defendants No. 1 & 2 pending before the revenue court as per terms of the agreement; (viii) the plaintiff is entitled for getting the registered lease deed executed of the second alternative property after payment of balance consideration of Rs.2 lacs as per the agreement for specific performance of contract. The plaintiff had served the defendants with a notice, however, the defendants are not performing their part of contract. Accordingly, the suit has been decreed with costs. 14. Admittedly, agreement of sale is between defendants No. 1 & 2 and the plaintiff. The first property was recorded in the name of Bulakidas and Chandrakant. The plaintiff had served the defendants with a notice, however, the defendants are not performing their part of contract. Accordingly, the suit has been decreed with costs. 14. Admittedly, agreement of sale is between defendants No. 1 & 2 and the plaintiff. The first property was recorded in the name of Bulakidas and Chandrakant. Defendant No.2 acknowledging that his brother defendant No.1 has one share, entered into an agreement that they shall be executing sale deed of Ramakant's share in the first property for a consideration of Rs.7 lacs and in lieu thereof, they obtained Rs.3 lacs as advance. It was agreed that they would execute sale deed by 30th July, 1999 after receiving the balance consideration of Rs.4 lacs from the plaintiff. The document also reads that the land has not been partitioned and defendant No.1, Bulakidas and Chandrakant are partners in the said plot and there are tenants in the plot. The further stipulation is that if partition does not take place by 25th July, 1999 and the tenants do not vacate the land, in that condition, the purchaser shall give them additional time of 18 months by 30th January, 2001. If they fail to execute sale deed by 30th January, 2001, in that case, the plaintiff shall be entitled to get sale deed of 10000 sq.ft. area of the second property executed at the rate mentioned in the agreement after paying balance of consideration of Rs.2 lacs. 15. From close scrutiny of this agreement, it is clear that partition of the property between the partners was to be done latest by 30th January, 2001 and the tenants vacated the premises by that date. There is no stipulation in the agreement that the lease deed was to be renewed or that the partition should have been effected by a registered deed or that the name of Ramakant was mutated in the revenue record. 16. Defendant No.1 sent a notice through advocate on 17.7.2000 (Ex.D/4). By this notice, defendant No.1 intimated that he was ready and willing to execute sale deed of his 1/4th share of in the first property after getting it vacated from its tenants in the month of May- June, 1999 as per agreement. However, the plaintiff refused to perform his part of the contract on the pretext that the lease has not been renewed. However, the plaintiff refused to perform his part of the contract on the pretext that the lease has not been renewed. It was further stated that he is ready and willing to sell his 1/4th share in the said property as per agreement by the end of July, 2000, the plaintiff should pay the balance of consideration and obtain vacant possession of the suit property and he should also intimate the date of registry five days in advance so that his brother Chandrakant etc. are also present at the time of registry. 17. Defendant No.1 again sent second notice dated 24.7.2000 (Ex.D/7) after receiving the reply dated 20th July, 2000 by the plaintiff and in this notice also, he stated that the tenants have already vacated his 1/4th share in the property, his brother Chandrakant and Bulakidas have no objection to the sale of his share to the plaintiff as they have mutually partitioned the property amongst themselves. There was no condition of renewal of lease in the agreement. However, they have already applied for renewal and process of renewal is going on. In this reply, it was categorically mentioned that defendant Chandrakant shall also remain present for execution of sale deed. In case, he fails to perform his part of the contract on any pretext, his advance of Rs.3 lacs shall stand forfeited and the agreement shall stand rescinded by 31st July, 2000. 18. The plaintiff in his reply dated 27.7.2000 (Ex.P/2) enquired from the defendants whether any written registered partition has taken place between Bulakidas, Chandrakant and Ramakant. Some other objections with respect to measurement of the land, renewal of lease deed have been raised in this notice and finally, it has been stated that if defendant No.1 fails to execute the sale deed with respect to the first property within the stipulated period, the plaintiff shall have the right to get sale deed of certain part of second property executed in his favour. 19. 19. From the above notices and subsequent notices issued by the parties to each other i.e. Ex.P/3, P/4, P/5, P/6, D/4 and D/7 and from pleadings in the plaint and written statement, oral evidence of plaintiff Rajkumar Bajpai and defendant Ramakant Dixit, it is clear that defendant No.1 was throughout expressing his readiness and willingness to sell his share in the first property to the plaintiff; he also claimed that there was oral partition between Bulakidas, Chandrakant and himself on 1.2.1999 and a memorandum of partition was recorded later on; they have already got his share of the first property vacated from its tenants, whereas, the plaintiff was insisting for registered partition between them, renewal of lease deed and mutation of the property in the name of Ramakant Dixit. 20. The plaintiff (PW-2) in his deposition before the Court has admitted that the particular portion of the first property was not mentioned in the agreement, he did not mention in his notice that the agreement was for the western part of the first property. There was a dispute as Ramakant insisted that agreement was for the western part, whereas he insisted for eastern part. Ramakant in his notice has mentioned that the agreement was for western part and in reply thereto, he did not say that the agreemented property was eastern part of the first property. He has further admitted that in the agreement, there were only two conditions that there should be partition between Chandrakant and Bulakidas, and second, that the tenants should vacate the house. There was no condition in the agreement of renewal of lease or registered partition deed. However, there was oral agreement to this effect. They entered into oral agreement after execution of the deed. In para-17, he has further admitted that Ramakant had stated in his notice that there has been a mutual partition of the property between the three and he has been allotted share in the western part and they have also executed the acknowledgement of oral partition. Ramakant had also stated that he is ready to execute sale deed of the first property and Chandrakant and Bulakidas are prepared to sign the sale deed as witnesses. In para-20, he has admitted that he did not verify whether the house in the western part of the first property, has been vacated by its tenants or not. Ramakant had also stated that he is ready to execute sale deed of the first property and Chandrakant and Bulakidas are prepared to sign the sale deed as witnesses. In para-20, he has admitted that he did not verify whether the house in the western part of the first property, has been vacated by its tenants or not. He has also admitted that he did not send any notice to Chandrakant for execution of sale deed as per agreement. 21. DW-1 Ramakant Dixit, in his deposition before the Court, has reiterated his stand in his written statement. He has further proved the document of Annexure D/1 dated 29.7.2000, which is acknowledgement of mutual partition between Bulakidas, Chandrakant and Ramakant and the same bears signatures of all the three. It has been mentioned in the said document that they have mutually partitioned the first property amongst themselves on 1.2.1999 and accordingly, they are in possession of their respective shares. In the said document, 1/4th share of Ramakant has been shown on western side of the first property. In his deposition, he has also stated that the stipulation with respect to agreement of sale of the alternative property (second property) was inserted on account of undue pressure. His brother objected when the dispute arose about the second property. 22. Bulakidas has been examined as DW-4. He has deposed that the disputed Nuzul plot was purchased by him and Rajnarayan Dixit-father of the defendants. The sale deed was executed jointly in the name of Chandrakant Dixit and himself, and in the Nuzul record, the same is recorded in their names. He has further deposed that they have since partitioned the land between themselves, 1/4th of the property fell in the share of Ramakant, 1/4th in the share of Chandrakant and + of the central portion (1/2 of the entire plot) was given to him. He has also proved the document of acknowledgment of partition Ex.D/1, which bears his signature. 23. He has further deposed that they have since partitioned the land between themselves, 1/4th of the property fell in the share of Ramakant, 1/4th in the share of Chandrakant and + of the central portion (1/2 of the entire plot) was given to him. He has also proved the document of acknowledgment of partition Ex.D/1, which bears his signature. 23. From perusal of the above oral & documentary evidence and pleadings of the respective parties, it is clear that the defendants had mutually partitioned the property between themselves within the stipulated date; there is evidence that the tenants had vacated the property situated in the western side, which fell in the share of Ramakant, and it is also established that defendant No.1 had all through been ready and willing to sell his 1/4th share in the property, which was given on mutual partition and he was prepared to execute sale deed. The said sale deed may be executed by his brother Chandrakant also. Bulakidas, who is recorded owner in the Maintenance Khasra, may sign the same as witness. 24. From the document of Ex.D/2, which is an order passed by the Collector on 11.2.2002, it also appears that Bulakidas, Ramakant and Chandrakant had applied for mutation of the first property on the basis of document of Ex.D/1. In the said order, it is also mentioned that the parties to the proceedings had mutually divided the property amongst themselves on 1.2.1999 and had executed a memorandum of the above partition on 29.7.2000. However, the Sub Divisional Officer refused to mutate the record on their application and on appeal, the order of the Sub Divisional Officer was set aside and the property was mutated as per document of Ex.D/1. 25. On the basis of above oral and documentary evidence available on record, we are of the opinion that the defendants had effected mutual partition of the property before the stipulated date and in the said partition, western part of the property fell in the share of defendant No.1; the tenants had already vacated the said property by 30th January, 2001; there was no condition in the agreement of sale that the partition should be effected through registered deed or any condition of renewal of lease deed. In any case, the agreement of Ex.P/11 was between Ramakant & Chandrakant as vendor on the one side and Rajkumar Bajpai as purchaser on the other, and since Chandrakant was recorded owner of the property, sale deed could be validly executed by both the brothers as per agreement and therefore, findings of the trial Court that the conditions agreed upon by the defendants could not be fulfilled by 30th January, 2001 and the plaintiff was at liberty to file a suit for specific performance of the contract at his option of any of the two properties, for which the agreement was executed, are erroneous and the same have been arrived at by ignoring the oral and documentary evidence available on record. 26. Even otherwise, it is settled law that the relief of specific performance of contract is a discretionary relief. In the instant case, though Chandrakant Dixit was recorded owner of the first property along with Bulakidas and he was also a party to the agreement for sale, the plaintiff did not ask defendant No.2 for specific performance of the contract vide agreement of Annexure P/11, even after defendant No.1 in his notice categorically mentioned that both of them were ready and willing to execute sale deed as per agreement with respect to his share in the first property. The entire conduct of the plaintiff in insisting for registered partition deed and renewal of lease deed, contrary to the stipulation in the agreement, indicates that he was not interested in purchasing the share of defendant No.1 in the first property and was resiling from contract with respect to the first property on one pretext or the other. It is worthwhile to mention here that the second property was also jointly recorded in the name of defendant No.1 & defendant No.2. Since defendant No.2 was also a party to the said agreement, finding of the trial Court that defendant No.2 could not execute sale deed with respect to Ramakant's share in the first property as his name was not mutated after partition, has no force as both the defendants were bound by the said agreement to execute sale deed of the first property (Ramakant's share) in favour of the plaintiff. 27. 27. In Bal Krishna (supra), it has been held that the relief for specific performance lies in the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the Court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the Court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the Court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void. 28. We have already held that the findings of the trial Court that the defendants did not fulfill the requisite conditions of the agreement i.e. they did not effect partition of the first property amongst themselves and defendants did not got the share of defendant No.1 vacated by stipulated period, are erroneous and contrary to the oral and documentary evidence available on record. In these circumstances, the instant suit by the plaintiff for specific performance of the contract only with respect to alternative second property on failure of fulfillment of the conditions with respect to agreement of sale of the first property, was misconceived in the absence of relief for specific performance of the contract with respect to defendant No.1's share in the first property. 29. The conduct of the plaintiff proved in the instant case was at variance with the real contract between him and the defendants regarding execution of sale deed with respect to the first property. Therefore, we have come to the conclusion that the plaintiff's right to obtain specific performance cannot be decreed and the trial Court was not justified in passing a decree of specific performance of the contract in favour of the plaintiff only with respect to the alternative second property. Therefore, we have come to the conclusion that the plaintiff's right to obtain specific performance cannot be decreed and the trial Court was not justified in passing a decree of specific performance of the contract in favour of the plaintiff only with respect to the alternative second property. However, the suit cannot be dismissed in its entirety and the plaintiff should be granted a decree of refund of Rs.3 lacs, which was admittedly paid by the plaintiff as advance to the defendants at the time of execution of the agreement. It is true that the plaintiff did not prefer any appeal. This case is fit for exercising the Court's power under Order 41, Rule 33 of CPC for passing a decree in plaintiff's favour for refund of the sum advanced by him to the defendants. The plaintiff has succeeded in proving that there was a valid agreement between the parties for sale of the property and the alternative property described in the agreement dated 1.10.1998 for a consideration of Rs.7 lacs or for the alternative property, for Rs.5 lacs and on the same date, he had paid a sum of Rs.3 lacs as advance to the defendants. The defendants have not denied the receipt of Rs.3 lacs in lieu of execution of the agreement. 30. In these circumstances, the plaintiff may legitimately ask for refund of the said sum of Rs.3 lacs with interest. Though the plaintiff in his plaint did not alternatively pray for passing a decree of refund of the aforesaid sum paid as advance to the defendants, however, we are of the view that it would be appropriate to grant the plaintiff the said relief by way of refund in terms of Clause (b) of Sub-section (1) of Section 22 of the Specific Relief Act, 1963 (in short "the Act, 1963"), the main part of Sub-section (2) of Section 22 of the Act, 1963 would be a bar to straightway grant such a decree in this appeal. Sub-section (2) of Section 22, inter alia, lays down that no relief under Clause (a) or Clause (b) of Sub-section (1) of Section 22 shall be granted unless it has been specifically claimed; the Court under proviso to Sub-section (2) of Section 22 at any stage of the proceeding is competent to allow the plaint of the suit to be amended on such terms as may be just for including a claim for such relief. The expression "any stage of the proceeding" would obviously include an Appeal from Original Decree passed in a suit for specific performance. Therefore, we propose to allow the plaintiff to be given an opportunity to amend his plaint in terms of the said proviso to Sub-section (2) of Section 22 of the Act, 1963. For this purpose, a remand of the case would be necessary for amendment of the pleadings for passing a decree for refund in plaintiff's favour. 31. We, accordingly, allow this appeal in part, set aside the judgment and decree of the trial Court and refuse the plaintiff's prayers for specific performance of the contract. We remand the case to the trial Court for fresh disposal in accordance with the directions made in this judgment. We direct the parties to appear before the trial Court on 16th December, 2009. In case, within three months from their date of appearance before the trial Court, the plaintiff files an application for amendment of his plaint and includes a prayer for refund of Rs.3 lacs with interest @ 6% per annum from 1st October, 1998 i.e. the date of payment of said amount to the defendants, the trial Court will allow the said prayer for amendment in the plaint and pass a decree in plaintiff's favour for recovery of the said sum of Rs.3 lacs with interest @ 6% per annum from the aforesaid date till recovery. In case, no such application for amendment of the plaint is filed by the plaintiff within the aforesaid time, the trial Court will dismiss the suit with costs. There shall no order as to costs in this appeal. Records be sent to the trial Court forthwith.