Judgment :- 1. This second appeal is focussed by the first defendant in the original suit, animadverting upon the dismissal of A.S.No.35 of 2006 on 20.11.2007 by the Principal District Judge, Trivellore, confirming the judgment and decree of the learned Subordinate Judge, Poonamallee in O.S.No.410 of 1996. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit seeking the following reliefs as against three defendants, of whom one is the Sub Registrar, Ambattur: "(i) To direct the 1st and 2nd defendants to execute and register a sale deed for Rs.3,17,000/- to the plaintiff conveying the suit property and receive the balance of sale consideration of Rs.23,328/- from court deposit after handing over the originals of documents pertaining to the suit property after securing a transfer of the suit site from the T.N.H. Board; and (ii) To grant permanent injunction restraining the 1st and 2nd defendants from executing and registering any sale deed on the file of the 3rd defendant or on the file of any other competent register and restraining the 3rd defendant from accepting any sale deed from the 1st and 2nd defendants for registration pertaining to the suit property. (iii) To grant permanent injunction restraining the 1st and 2nd defendants, their men, servants or agents from interfering with the plaintiff's peaceful possession and enjoyment of the suit property; and (iv) for costs."(Extracted as such) (b) D1 and D2 filed the written statement separately resisting the suit. (c) Whereupon the trial Court framed the issues. (d) During trial, on the side of the plaintiff, P.W.1/Nalliappan was examined in chief, but he was not cross examined. Whereupon, D1 filed an application seeking permission to recall P.W.1, so as to enable D1 to cross examine P.W.1 and also adduce evidence on the side of D1. The said application was dismissed and the suit was decreed. 3. Being aggrieved by and dissatisfied with the judgment and decree passed by the trial Court, D1 preferred appeal. Whereupon, D1 filed an application seeking permission to recall P.W.1, so as to enable D1 to cross examine P.W.1 and also adduce evidence on the side of D1. The said application was dismissed and the suit was decreed. 3. Being aggrieved by and dissatisfied with the judgment and decree passed by the trial Court, D1 preferred appeal. Whereupon, the appellate Court dismissed the appeal as against which the Second Appeal has been filed by D1 on various grounds suggesting the following substantial questions of law: "(a) Whether the Court below properly appreciated the oral documentary evidence? - placed by 1st respondent herein. (b) Whether the Court below has properly applied the well established principles of law to find out the lacuna and validity of execution of the Sale Agreement dated 28.6.1994 for the suit property even before obtaining the Title of the said property from the Tamil Nadu Housing Board by executing the Sale Deed in favour of the Appellant. (c) Whether the Court below has properly appreciated the Doc. ie. Ex.A4 in relation to the Specific Performance clause mentioned that the Allottee namely the Appellant herein should not alienate the property within a period of 5 years as per the Sale Deed executed by the Tamil Nadu Housing Board and superstructure should be completed on the land within 3 years period from the date of execution & registration of the Sale Deed. (d) Whether the Court below properly appreciated the scope of cause of action for the suit in failure of the Appellant's legal right to enter into any such alleged Sale Agreement." (extracted as such) 4. Heard both sides. 5. After hearing both sides, I have been of the considered view that the following substantial questions of law should be framed: (1) Whether the Courts below were justified in not granting opportunity to D1 to cross examine P.W.1 and also adduce evidence and that too in a suit for specific performance and also in view of the fact that D2 did not contest the matter after filing the written statement? (2) Whether there is any perversity or illegality in the findings rendered by the first appellate Court? 6. (2) Whether there is any perversity or illegality in the findings rendered by the first appellate Court? 6. The learned counsel for the appellant/D1 would implore and entreat that an opportunity be given to D1 to cross examine P.W.1 and also adduce evidence on his side, then only the matter could be comprehensively decided and that too in view of the obvious and axiomatic factual position that D2, the Power Agent of D1 virtually colluded with the plaintiff. 7. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of D1, the learned counsel for the plaintiff would submit that the first defendant cannot capitalise his own fault by simply remaining inert during the trial stage as well as before the first appellate stage and for the first time, D1 cannot insist upon the fact that he should be given opportunity to cross examine P.W.1 and also adduce evidence on his side. 8. In this case, the first defendant filed necessary application for recalling P.W.1 so as to enable D1 to cross examine the witness and also to adduce evidence, but in my considered view that was unjustifiably rejected by the trial Court. No doubt, there might have been certain laches on the part of the first defendant in participating in the trial. Considering the principle of audi alteram partem, opportunity could have been given to D1, subject to payment of cost by him to the plaintiff and that would have met the ends of justice. Surprisingly, the trial Court simply dismissed his application and immediately passed the decree and in fact, D1 also did not have had the opportunity to prefer the CRP, because in the meantime ex parte decree was passed. Before the appellate Court no doubt the appellant/D1 could have prayed for getting such opportunity, but that was not done so. I am of the view that without having sufficient evidence on record if the matter is decided, that would amount to deciding the matter only on ex parte basis. 9. This is a case relating to specific performance and D1 would specifically contend that D1's Power Agent D2, defrauded D1. The fact also remains that D2 did not contest the matter after filing the written statement. 9. This is a case relating to specific performance and D1 would specifically contend that D1's Power Agent D2, defrauded D1. The fact also remains that D2 did not contest the matter after filing the written statement. Hence, this a fit case warranting interference of the High Court and the matter has to be remanded back to the first appellate Court so as to give opportunity to D1 to cross examine P.W.1 and also adduce evidence on his side. I also make it clear that in the event of the plaintiff desirous to adduce further evidence, he is at liberty to lead further evidence. Because of the laches on the part of the first defendant, the plaintiff also should not suffer. Hence I would like to award cost in favour of the plaintiff payable by the first defendant. 10. Wherefore, the substantial question of law Nos. 1 and 2 are decided to the effect that the Courts below were not justified in not granting opportunity to D1 to cross examine P.W.1 and also adduce evidence and hence interference of the High Court in this Second Appeal is warranted. 11. In the result, the judgment and decree of the first appellate Court is set aside and the matter is remanded back to the first appellate Court with the following direction: The appellate Court shall give opportunity to D1 to cross examine P.W.1 and also adduce evidence on his side and in the event of the plaintiff desirous of adducing further evidence, he is at liberty to lead further evidence. However, the matter shall be disposed of within a period of four months from the date of receipt of a copy of this judgment. The appellant/D1 shall pay a sum of Rs.3,000/- (Rupees three thousand only) as cost to the plaintiff, and the same shall be received by the learned counsel for the plaintiff, within a period of one month from this date and if there is any default in payment, this order will not enure to the benefit of the plaintiff. Accordingly, this Second Appeal is disposed of. Consequently, connected miscellaneous petition is closed. Both the parties shall appear before the first appellate Court on 18.04.2011. 36. In such a case, the plaintiff cannot contend that there was no novation etc. and those decisions cited are out of context. 37. Accordingly, this Second Appeal is disposed of. Consequently, connected miscellaneous petition is closed. Both the parties shall appear before the first appellate Court on 18.04.2011. 36. In such a case, the plaintiff cannot contend that there was no novation etc. and those decisions cited are out of context. 37. The trial court adverting to the oral and documentary evidence adduced in the matter, clearly and categorically held that the parties played fraud on the court in obtaining permission to sell the D8 minor’s share as per order in O.P.No.57 of 1987 of the learned Principal Judge, City Civil Court, Madras and the sale consideration was only shown as Rs.90,000/- and not two lakhs as per Ex.A1. 38. Placing reliance on the said second agreement quite contrary to the sum of Rs.2,00,000/- contemplated under the first agreement to sell in Ex.A1 as held by the lower court the income tax clearance certificate was obtained by showing as though the sale consideration was only Rs. 90,000/-. 39. To the risk of repetition and pleonasm, but without being tautologous, what I would like to point out is that Article 54 of the Limitation Act cannot be given a go-by based on these documents and furthermore, the very animus or intention of the plaintiff himself to get Ex.A1 specifically enforced, even as per Ex.A22 referred to supra is absent. 40. I recollect the following maxim – Qui approbat non reprobate – (he who approbates does not reprobate, i.e., he cannot both accept and reject the same thing. 41. At the first instance, the plaintiff wanted to get enforced the second agreement to sell dated 22/1/1987 and thereupon, there were exchange of correspondences. But, subsequently, the plaintiff filed the suit for enforcement of the first agreement Ex.A1 dated 3/1/1987 and in such a case, as per the aforesaid decision of the Honorable Apex Court, the case of the plaintiff cannot be upheld. My mind is reminiscent of the following maxims: 1. Suppressioveri suggestion falsi – Suppression of the truth is equivalent to the suggestion of what is false. 2. Suppression very expression falsi – Suppression of the truth is equivalent to the expression of what is false. 42. As per Section 16 of the Specific Relief Act, the plaintiff should always be ready and willing to perform his part of the contract and in this connection, the following judgment could rightly becited. 1. 2. Suppression very expression falsi – Suppression of the truth is equivalent to the expression of what is false. 42. As per Section 16 of the Specific Relief Act, the plaintiff should always be ready and willing to perform his part of the contract and in this connection, the following judgment could rightly becited. 1. (2010) 10 SCC 512 ( Man Kaur (dead) by Lrs. Vs. Hartar Singh Sangha) 12. Section 16( c) of the Specific Relief Act, 1963 (“the Act”, for short) bars the specific performance of a contract in favour of a plaintiff “who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant”. Explanation (ii) to section 16 provides that for purposes of clause (c) of section 16, “The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” Thus, in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of contract. (SeeN.P.ThirunanamVs. Dr. R. Jagan Mohan Rao (1995) 5 SCC 115 ; AIR 1996 SC 116 = 1996-1-L.W.239; Pushparani S. Sudaram vs. Pauline Manomani James (2002) 9 SCC 582 and Manjunath-Anandappa vs. Tammanasa (2003) 10 SCC 390 = 2003-3-L.W.5. 13. In the first case, this court held: (N.P. Thirugnanam case, SCC p.118, para 5) “5. …….The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” The learned senior counsel for the defendants cited the following judgments: 1. 2009(7) MLJ 237 = 2009-5-L.W. 242 (Division Bench judgment of this court) (Bangaru-Chettiar& others vs. B.B. Lalitha (Died) & others) 18. The plaintiff therefore, seeks to enforce an agreement which the plaintiff herself has attacked as false. If the agreement is alleged to be fraud and brought about without her willingness and consent, then there is neither readiness nor willingness to perform that agreement as far as 15/7/1979 is concerned. Therefore, both the trial court and the learned single judge ought not to have granted a decree for specific performance of the agreement dated 15/7/1979. If they were of the opinion that the agreement dated 24/3/1979 was a concluded contract and it deserved to be specifically performed, then the decree may have been granted in respect of that agreement. They cannot grant a decree for specific performance of a contract which the plaintiff herself had alleged to be fraudulent and obtained without her consent. An agreement is something where there is consensus ad idem and this is denied by the plaintiff and therefore, we cannot grant a decree for specific performance in favour of the first respondent in respect of the agreement dated 15/7/1979. 19. Once we have arrived at the conclusion that the agreement denied by the plaintiff herself cannot be specifically performed it is not necessary for us to go into any other issues. However, since the decision in LalaDurga Prasad & another vs. Lala Deep Chand & others (supra) was referred to by the learned senior counsel for the first respondent, we will deal that decision. There the vendor was one Nawab. He was the first defendant. There was an agreement on 7/2/1942. However, since the decision in LalaDurga Prasad & another vs. Lala Deep Chand & others (supra) was referred to by the learned senior counsel for the first respondent, we will deal that decision. There the vendor was one Nawab. He was the first defendant. There was an agreement on 7/2/1942. The plaintiff’s case was that on that date the said Nawab agreed to sell the property to him and accepted the earnest money the same day. Later he sold the same property to the appellants on 4/4/1942. The appellants’ case was that the plaintiff’s agreement dated 7/2/1942 was not a concluded one as the parties never reached finality. The Nawab’s plea was one of fraud and mis-representation. He said that there was a previous contract with the appellants and they had paid him advance on 5/2/1942. After this, he was told by the plaintiff’s brother that they had backed out and believing that could he had entered into an contract dated 7/2/1942 with the plaintiff. 22. In Ganesh Shet Vs. Dr. C.S.G.K. Setty AIR 1998 SC 2216 : (1998) 5SCC 381 = 1998-2-L.W. 749 Supreme court considered a case where the plaintiff pleaded that there was one agreement executed at Bangalore and another one at Delhi the Supreme Court was not impressed with the case of the plaintiff and specific performance was denied. 2. AIR 2002 Mad 131 = 2001-3-L.W 603 (P. Retnaswamy Vs. A. Raja & another) 11. …… At this juncture it has to be pointed out that in a suit for specific performance, the plaintiff cannot be allowed to depart from his case as set up in the plaint and therefore if one agreement is set up in the plaint, but another agreement is attempted to be established, the case of the plaintiff has got to be rejected on that ground alone. In the instant case it is needless to say that the plaintiff in his evidence has made an attempt to substitute entirely a new agreement of sale than one what is found under Ex.P1 agreement and also averred in the plaint. Needless to say that the relief of specific performance is in the nature of an equitable relief and that even the conduct of the party may disentitle him to the relief asked for. Needless to say that the relief of specific performance is in the nature of an equitable relief and that even the conduct of the party may disentitle him to the relief asked for. Suffice it to say that in the instant case, the plaintiff who came with a specific averment of an agreement for sale on 10/7/1996 has not adduced any evidence to prove the same. The oral evidence adduced by the plaintiff stands contra to the averment found in Ex.P1 agreement and in the pleading. A mere perusal of the aforesaid judgments would clearly display and demonstrate that if there are laches on the part of the plaintiffs, then the plaintiff is not entitled to specific performance. 43. Admittedly, in this case, the plaintiff, unequivocally and unambiguously exposed himself that he was not for getting the first agreement to sell as contained in Ex.A1 enforced and to that effect, in Ex.A22 in the pre-litigation notice, he expressed his view. In such a case, I am at a loss to understand how the plaintiff could be held that he has always been ready and willing to perform his part of the contract. 44. Here, the courts below au fait with law and au courant with facts dismissed the prayer of the plaintiff, warranting no interference in this second appeal. 45. I, therefore, hold that the substantial question of law no. 1 is decided to the effect that the suit was barred by limitation, warranting no interference in this second appeal. 46. Relating to the substantial question of law no.2, the I.A filed for impleadment by the plaintiff in the suit instituted by the ninth defendant viz., O.S.No.3007 of 1987, as against all the defendants concerned for enforcement of a separate agreement to sell was dismissed and as against which, no action was taken by the plaintiff. 47. The contention on the side of the plaintiff that the earlier suit instituted by D9 in O.S.No.3007 of 1987 should be treated as collusive and fraudulent one for the reason that the said agreement to sell involved therein, was not between the proposed purchaser and all the owners of the suit property and that the sale consideration therein was not Rs. Two lakhs but the collusive compromise was for Rs. One Lakh etc. in respect of his contention, he cited the decision of this court reported in 2007 (1) CTC 399 (SargunamVs. Two lakhs but the collusive compromise was for Rs. One Lakh etc. in respect of his contention, he cited the decision of this court reported in 2007 (1) CTC 399 (SargunamVs. V.R. Jayasingh & others). An excerpt from it would run thus: 16. The appellant herein claimed his right under the sale agreement dated 3/12/1981. It is not in dispute that in O.S.No.1062/75, altogether six tenants were arrayed as the defendants, who have filed an application under section 9 of the said act, which was ordered as prayed for. Admittedly, no sale deed was executed in favour of the said six persons by their landlords. It is also not in dispute that all the said six persons have not executed the sale agreement dated 3/12/1981. Even in the said sale agreement, the delivery of possession to the appellant was not found mentioned. The appellant claimed that he is in possession of about 700 sq.ft of land, whereas the report and the plan of the Advocate Commissioner, Exs.C1 and C2 disclose that the appellant is in occupation of about 15’ * 14’ and the evidence of the respondents 1 and 2 disclosed the same. In view of the above said fact that the possession was not delivered even under the sale agreement dated 3/12/1981, besides that it is not a valid one, since all the necessary parties are not there and the said agreement dated 3/12/1981 was also not proved by the appellant by examined the vendors, scribe and the attesting witnesses, this court is of the considered view that the possession of the appellant is not legal. Before the lower appellant court, the appellant herein sought for permission to examine the vendor, who executed the sale agreement, dated 3/12/1981, as well as the attesting witnesses, which was tightly rejected on the ground that the appellant did not explain as to why they were not examined before the Trial Court. S17. The first substantial question of law is concerned, admittedly no sale deed was executed by the landlord in favour of Gangadharan, Lakshmiammal and vedavalli, however, the amount was deposited by them along with three other persons, it is not explained as to what is the contribution made by each member to the said deposit. It is needless to mention that the above said six persons are entitled to a share, of course, corresponding to the extent of their occupation. It is needless to mention that the above said six persons are entitled to a share, of course, corresponding to the extent of their occupation. The right of the said three persons are not ascertained, hence, they are not competent to convey 700 feet or any extent, thus, the first substantial question of law is answered against the appellant. 18. In so far as the second question of law is concerned, the appellant has not examined the above said Gangadharan, Lakshmiammal, Vedavalli or the attesting witnesses of the agreement dated 3/12/1981 and it is not valid, hence the First appellate court is right in holding that Ex.A1, sale agreement dated 3/12/1981 is not true and valid, thus, the second substantial question of law is also ordered against the appellant. 48. In the present proceedings, this court can not apply the aforesaid principle so as to hold that the previous judgment obtained by D9 is null and void for the reason that here the plaintiff has not established his right to get specific performance of agreement to sell as found in Ex.A1 enforced as held supra. 49. Over and above that what I would like to point out is that once the plaintiff herein is not entitled to file a suit based on the first agreement, the question of getting set aside the judgment and decree in the previous suit O.S.No.3007 of 1987 Would not arise. 50. If at all the genuineness of the plaintiff in getting Ex.A1 specifically enforced is found proved, then only as a corollary, the question of setting aside the judgment and decree in O.S.No.3007 of 1987 would arise. But the findings supra would speak to the effect that the plaintiff did not approach the court with clean hands for getting Ex.A1 enforced. Over and above that, as against the order passed in I.A rejecting the prayer for impleadment in the suit O.S.No.3007 of 1987 filed by the ninth defendant also was not agitated before the higher forum. 51. The contention of the learned counsel for the plaintiff that the compromise decree passed in the said O.S.No.3007 of 1987 was to be set aside could not be countenanced for the reason that the plaintiff has got no locus standi to pray for the same as correctly pointed out by the trial court. The plaintiff herein did not approach the court with clean hands. The plaintiff herein did not approach the court with clean hands. The relief of specific performance is a equitable relief and I recollect the maxim – “He who seeks equity must do equity and he who comes to equity must come with clean hands”. The earlier decree in O.S.No.3007 of 1987 is a compromise decree to which the appellant/plaintiff herein was not a party and he cannot be heard to contend that the said decree was a fraudulent one etc. 52. The plaintiff who defrauded the District Court as well as the State Revenue and the Income Tax Department cannot be heard to contend that he is having a right to get specific performance of the agreement to sell as contained in Ex.A1. 53. The contention of the plaintiff’s side that the sale deed emerged in the name of D10 as nominee of D9 and the subsequent sale deeds emerged in favour of D11 to D14 are all invalid, cannot be held as valid for the reason that the doctrine of lispendens cannot be pressed into service by the plaintiff, who has got no locus standi to get specifically enforced Ex.A1. 54. The learned senior counsel for the appellants/defendants would correctly and convincingly, appropriately and legally submit that if at all the plaintiff can establish his right to get the specific performance of Ex.A1 enforced, then the question of his right to get the compromise decree emerged in O.S.No.3007 of 1987 set aside would arise. 55. The contention on the side of the plaintiff that the certified copy of the order in I.A.No.17787 of 1989 in the O.S.No.3007 of 1987 dated 2/2/1990 could not be obtained is totally untenable as Ex.A62 marked before the lower court would show that the plaintiff obtained the certified copy from the court on 2/2/1990 in the said I.A, and the copy application was made only on 13/11/2003 and the copy was made ready on 10/12/2003. 56. In such a case, the contention of the plaintiff that the certified copy was not given and hence he could not agitate before the higher forum is neither here nor there. 57. 56. In such a case, the contention of the plaintiff that the certified copy was not given and hence he could not agitate before the higher forum is neither here nor there. 57. I would like to observe that if a litigant could not get the certified copy from the court, which passed the order within a reasonable time, then it is for the party to approach the higher forum in the judicial hierarchy and see that the court concerned issues the said order and such an excuse on the part of the plaintiff is found to be a lame excuse. As such, the excuses as put forth on the side of the plaintiff fails to carry conviction with this court. 58. Simply because, the previous suit O.S.No.3007 of 1987 ended in compromise between one of the co-owners of the suit property and the purchaser, the ninth defendant herein, who was the plaintiff therein along with other co-owners of the suit property ex facie such a judgment cannot be treated as void at the instance of the plaintiff herein, who admittedly held to be a person whose conduct falls foul of section 16 of the Specific Relief Act. 59. As such, the findings of both the courts below on that count also cannot be found fault with and I could see no perversity or illegality in the orders passed by both the courts below. 60. (i) Accordingly, the substantial question of law no.1 is decided to the effect that both the courts below properly held that the suit for specific performance was barred by limitation. (ii) The substantial question of law no.2 is decided to the effect that there is no perversity or illegality on the part of both the courts below in rejecting the prayer of the plaintiff for getting set aside the judgment and decree dated 26/3/1990 passed by the learned XI Additional Judge, City Civil Court, Chennai. (iii)The substantial question of law no.3 is decided to the effect that the plaintiff was guilty of fraud as held by both the courts below and he is not entitled for specific performance. S.A.NO.1009 OF 2009: 61. The substantial question of law 1 to 5 formulated in the aforesaid second appeal are taken up together for discussion as they are inter-entwined with one another. 62. S.A.NO.1009 OF 2009: 61. The substantial question of law 1 to 5 formulated in the aforesaid second appeal are taken up together for discussion as they are inter-entwined with one another. 62. At the outset itself, I would like to refer to the following decisions cited on both sides relating to these points are concerned. 1.1997-1LW 200 (DB judgment of this court) (T.Periasamy-Nadar and 5 others Vs. T.D. Ramasubramaniam) 9. Though no plea was raised in the plaints based upon S.22 of the specific Relief Act, 1963 for refund of the advance amount in the event of refusal to grand a decree for specific performance, we specifically adjourned these appeals, after they were heard fully, to enable the plaintiffs to amend the plaints to seek relief for refund of advance amount with interest. A specific order was also passed on 19/3/1996 in the following terms: “Though these appeals were herd and posted for judgment to be dictated in open court, it was at this stage noticed that there was no alternative prayer made for refund of the advance amount in the light of the provisions contained in S.22 of the Specific Relief Act. In the event, this court were to come to the conclusion that the appellants are not entitled to specific relief, the decree for refund of the earnest money has to be passed as in these cases, admittedly, a sum of Rs.16,000/- was paid in respect of each agreement as earnest money. As per sub S(2) of section 22 of the act in the event no such prayer is made in the plaint, the court shall at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including a claim for such relief. Therefore, without prejudice to the contentions of the appellants/plaintiffs and without expressing any view on the merits of the contentions advanced before us by both sides, we only adjourn these appeals to enable the appellants to avail the alternative remedy by amending the plaint as contemplated in sub S(2) of S.22 of the Specific Relief Act. Call on 2/4/1996.” Again on 2/4/1996, the following order was passed and the matter was adjourned to 8/4/1996. Call on 2/4/1996.” Again on 2/4/1996, the following order was passed and the matter was adjourned to 8/4/1996. “Even though an opportunity was given by the order dated 14/3/96 to the plaintiffs’ appellants to seek an amendment of the plaint in terms of the aforesaid order, no such application are filed. Therefore, we proceed to deliver the judgment. Accordingly, post these appeals for judgment on 8/4/1996. Even on 8/4/1996, for this purpose, the matter was adjourned by passing the following order: “One of the appellants T.Periasamy has appeared in person and also has sent a telegram. He has been told that if he wants to file an application seeking relief alternatively, without prejudice to the right already sought in the suit under S22 of the act, he can do so by filing an application on 3/4/1996. Finally call on 23/4/96 at 2.15 p.m.” Accordingly, these appeals have come up today for judgment. Even to this day also, the plaintiffs have not filed applications seeking amendment to the plaints. No doubt, we could not have hesitated to grant a decree for refund of the advance amount in favour of the plaintiffs with interest, for which the defendant had also no objection. In fact, he furnished the computation of the amount on the basis of the interest at the rate of 12% and 15%. But, in the absence of the amendment to the plaints, it is not possible to grant such a decree in the light of the provisions contained in sub S(2) of S.22 of the Specific Relief Act, which specifically states that no relief under clause (a) or clause (b) of sub S. (1) shall be granted by the court, unless it has been specifically claimed. The proviso thereto specifically provides that if the plaintiffs has not claimed any such relief in the plaint, the court shall at any stage of the proceedings allow him to amend the plaint on such terms as may be just for including a claim for such relief. It is in the light of this provision contained in the proviso to sub S (2) of S22 of the act, we adjourned these appeals more than once. It is unfortunate that the plaintiffs have not taken advantage of it. In view of this, we only regret that we cannot pass a decree, even though the defendant is ready and willing for such a decree being passed. It is unfortunate that the plaintiffs have not taken advantage of it. In view of this, we only regret that we cannot pass a decree, even though the defendant is ready and willing for such a decree being passed. 1.2010 (4) CTC 546 (SC) = 2010-5-L.W 124 (Vinod Seth Vs. Devinder Bajaj & another) 8.1) It is doubtful whether the collaboration agreement, as alleged by the appellant, is specifically enforceable, having regard to the prohibition contained in section 14 (1) (b) and (d) of the Specific Relief Act, 1963. The agreement propounded by the appellant is not an usual agreement for sale/transfer, where the contract is enforceable and if the defendant fails to comply with the decree for specific performance, the court5 can have the contract performed by appointing a person to execute the deed of sale/transfer under order XXI Rule 32 (5) of the code of civil procedure (‘code’ for short). The agreement alleged by the appellant by the appellant is termed by him as a commercial collaboration agreement for development of a residential property of the respondents. Under the alleged agreement, the obligations of the respondents are limited, that is, to apply to DDA for conversion of the property from leasehold to freehold, to submit the construction plan to the concerned authority for sanction, and to deliver vacant possession of the suit property to the appellant for development. But the appellant/plaintiff has several obligations to performs when the property is delivered, that is, to demolish the existing building, to construct a three-storeyed building within one year in accordance with the agreed plan, deliver the first and second floors to the respondents and also a token cash consideration of Rs.3,71,000/-. The performance of these obligations by appellant is dependent upon his personal qualifications and volition, it the court should decree the suit as prayed by the appellant (the detailed prayer is extracted in para 3 above) and direct specific performance of the “collaboration agreement” by respondents, it will not be practical or possible for the court to ensure that the appellant will perform his part of the obligations, that is demolish the existing structure, construct a three-storeyed building as per the agreed specifications within one year, and deliver free of cost, the two upper floors to the respondents. Certain other questions also will arise for consideration. Certain other questions also will arise for consideration. What will happen if the construction plan is not sanctioned in the manner said to have been agreed between the parties and the respondents are not agreeable for any other plans of construction? Who will decide the specifications and who will ensure the quality of the construction by the appellant? The alleged agreement being vague and incomplete, require consensus, decisions or further agreement on several minute details. It would also involve performance of a continuous duty by the appellant which the court will not be able to supervise. The performance of the obligations of a developer/builder under a collaboration agreement cannot be compared to the statutory liability of a landlord to reconstruct and deliver a shop premises to a tenant under a rent control legislation which is enforceable under the statutory provisions of the special law. A collaboration agreement of the nature alleged by the appellant is not one that could be specifically enforced. Further, as the appellant has not made an alternative prayer for compensation for breach, there is also a bar in regard to award of any compensation under section 21 of the specific relief act. 3.2005-1-LW 653(SC) (Shamsu-Suhara-BeeviVs. G.Alex & another) 7. Counsel for the appellant strenuously contended that the High court has misunderstood the scope of section 21 of the Act according to him, compensation for breach of agreement of sale either in addition to or in substitution of the performance of the agreement cannot be granted unless the plaintiff claims such compensation in his plaint. Since the respondents had failed to claim the compensation either in the original plaint or by amending the plaint at a subsequent stage during the pendency of the said proceedings as provided under section 21(5) the respondents were not entitled to any compensation for breach of agreement of sale even if there was such a breach. It was further contended that the learned Single Judge committed a factual error in observing that in Purushothaman (supra) the plaint had not been amended in terms of section 21 (5) of the Act. According to him, in Purushothaman (supra) the plaint had been amended to claim the relief of compensation. That the sum of Rs.3,09,093/- towards the cost in the suit could not be included while working the amount of compensation under sub-section (5) of Section 21. According to him, in Purushothaman (supra) the plaint had been amended to claim the relief of compensation. That the sum of Rs.3,09,093/- towards the cost in the suit could not be included while working the amount of compensation under sub-section (5) of Section 21. Such costs could be recovered by the respondents by filing an execution application for recovery of the cost and the same could not be recovered as a part of compensation payable in addition or in substitution of the relief of specific performance. Counsel appearing for the respondents controverted the submission made by the counsel for the appellant and supported the findings recorded by the High Court. 8. Section 21 of the Act reads: “21. Power to award compensation in certain cases – (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) If, in any such suit, the court, decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under the section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872). (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. Explanation: The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section.” 9. This section corresponds to section 19 of the Specific Relief Act, 1877. Explanation: The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section.” 9. This section corresponds to section 19 of the Specific Relief Act, 1877. Sub-section (1) re-en-acts the law as contained in clause () of the repealed section 19 with suitable variations. The words “any person suing” have been substituted by the words “in a suit”. The word “claim” has been substituted for the words “ask for” and the word “plaintiff has been inserted before the words “performance of a contract”. Sub-clause (2) reproduces verbatim the language of clause 2 of the repealed section 19 with the alteration that the word “compensation”. Sub-section (3) corresponds to clause (3) of the section 19 of the repealed act. There is no modification in this sub-section. Clause (4) of section 19 of repealed act has been substituted by the new sub-section (4) of section 21. It provides the mode and manner of determining the amount of compensation under this section. It lays down the principle which would govern the determination of the award of compensation and provides that the court shall be guided by the principles specified in section 73 of the contract act, 1872 while determining the amount of compensation. Sub-section (5) of this section is new. It provides that the compensation under this section shall not be awarded unless the plaintiff has claimed it in the plaint. An important rider has been attached to this sub-clause which is to the effect that the court shall, at any stage of the proceedings, permit the amendment of the plaint to enable the plaintiff to include his claim for compensation on such terms, as the court may deem fit. Explanation to this sub-s3ection re-enacts the language of the old explanation without any chang3. Illustrations under section 19 have4 have been deleted. 10. Reasons for recommending the changes have been given by the Law Commission of India in its Ninth Report on the Specific Relief Act, 1877. Since in the present case, we are considering whether the compensation could be awarded in a suit for specific performance without making a claim of compensation either in the original plaint or by amending the plaint during the course of the proceedings, we would refer to the suggestions made by the law commission for the enactment of such clause (5) only. 11. 11. Sub-sections (4) and (5) of section 21 seem to resolve certain divergence of opinion in the High Courts on some aspects of jurisdiction to the award of compensation. The law commission in its 9th Law Commission Report dated 19th July, 1958 (pages 18 and 19) observed that there has been a difference of judicial opinion as to whether the court has the power to award compensation in a suit for specific performance, where the plaintiff has not specifically prayed for it in the plaint. The Lahore High Court has taken the view in A.P. PratinidhiSabhaVs. Lahori 1924 (5) Lah. 509, that the court has the power to award damages whether in substitution for or in addition to specific performance even though the plaintiff has not specifically claimed it in the plaint. The Madras High Court took a contrary view in Somasundaram, Vs. Chidambaram, AIR 1951 Mad 282 =(1950) 63 L.W.945 and held that the court cannot award damages in addition to specific performance in the absence of a specific claim for damages and a proper pleading stating why the relief of specific performance would be insufficient to satisfy the justice of the case and the amount which should be awarded. The Law Commission recommended that the view expressed by the High Court of Madras appeared to be based on the principle that there should be a proper pleading in every case. While it is proper that the court should have full discretion to award damages in any case it thinks fit, one cannot, on the other hand, overlook the question of unfairness and hardship to the defendants, if a decree is passed against him, without a proper pleading. The commission accordingly recommended that in no case should compensation be decreed unless it is claimed by a proper pleading. However, it should be open to the plaintiff to have an amendment, at any stage of the proceeding, in order to introduce a prayer for compensation, whether in lieu of or in addition to specific performance. The commission accordingly recommended that in no case should compensation be decreed unless it is claimed by a proper pleading. However, it should be open to the plaintiff to have an amendment, at any stage of the proceeding, in order to introduce a prayer for compensation, whether in lieu of or in addition to specific performance. Legislature accepted the suggestions made by the law commission of India and accepted the view expressed by the High Court of Madras to the effect that the court cannot award compensation in addition to specific performance in the absence of a specific claim for damages and a proper pleading stating why the relief of specific performance would be insufficient to satisfy the justice of the case and the plaintiff would not be entitled to compensation. 12. It is admitted position before us that in the original plaint the respondents did not claim compensation for the breach of agreement of sale either in addition to or in substitution of the performance of the agreement. Further the respondents did not amend their plaint and ask for compensation either in addition to or in substitution of the performance of the agreement of sale. Sub-section (5) of section 21 emphatically provides that no compensation shall be awarded under section 21 (5) unless the relief for compensation has been claimed either in the plaint or included later on by amending the plaint at any stage of the proceedings. The need to tile an execution petition did not arise as the appellant executed the sale deed on 17/8/1999. We have perused the application filed by the respondents. It is simple application filed under section 28(3) of the act seeking permission to ascertain the extent of plaint schedule property by measuring the same with the help of village officer or by deputing an Advocate Commissioner and directing the defendant/appellant to obtain ‘no objection certificate’ from the Department of Income Tax, in addition the respondents prayed that they be permitted to recover interest at 12% toward loss of income on the sale amount of Rs. 45,66,385/- from 23/10/1997 i.e.) the date of deposit till delivery of the possession of the property. Permission seeking to amend the plaint to include the relief of compensation for breach of the contract in addition to the specific performance has not been made. 45,66,385/- from 23/10/1997 i.e.) the date of deposit till delivery of the possession of the property. Permission seeking to amend the plaint to include the relief of compensation for breach of the contract in addition to the specific performance has not been made. The relief was claimed under section 28 and not under section 21 of the act. The High Court came to the conclusion that section 28 would not be applicable to the facts of the case but granted the relief under section 21 of the act. In our view, the High Court has clearly erred in granting the compensation under section 21 in addition to the relief of specific performance in the absence of prayer made to the effect either in the plaint or amending the same at any later stage of the proceedings to include the relief of compensation in addition to the relief of specific performance. Grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law. 4.2010-2-LW 13 S.N. (DB of Madurai Bench of Madras High Court) (B. Nemi Chand Jain and another Vs. G. Ravindran). 201. Since we are constrained to affirm the decree of the trial court, refusing to grant specific performance, only on the ground of hardship and the subsequent event, we could have considered the grant of compensation, as an alternative relief….Demacheria-venkaq-Anjaneyalu Vs. Damcherla-Venkata-Seshiah (1987 Supp SCC 75) referred to under section 21(5) of the Specific Relief Act, 1963, compensation cannot be awarded unless the plaintiffs had claimed the same in their plaint. In the case on hand, the plaintiffs failed to seek compensation either in addition to or in substitution of specific performance, as required by section 21(1). Therefore, we are unable to grant a decree for compensation in favour of the plaintiffs, despite our finding in their favour on three major issues viz., (i) that Ex.A1 is an agreement of sale (ii) that they were always ready and willing to perform their part of the obligations and (iii) that the defendants 4 and 5 were not bonafide purchasers. 202. As a matter of fact, even the decree granted by the trial court for refund of money with interest at 15% per annum on yearly rests, is doubtful of sustenance. 202. As a matter of fact, even the decree granted by the trial court for refund of money with interest at 15% per annum on yearly rests, is doubtful of sustenance. This is due to the fact that there was no prayer for such an alternative relief in the plaint. Under section 22(1) of the Specific Relief Act, 1963, a person suing for specific performance is entitled to ask for additional and/or alternative relief of possession, partition or refund of advance money. But under subsection (2) of section 22, no such additional or alternative relief can be granted by the court, unless it was specifically claimed. Though the proviso to sub section (2) of section 22 permits a plaintiff to seek amendment at any stage of the proceedings, so as to include a prayer for such additional or alternative relief, the plaintiff in the present case did not choose either to seek such relief in the first instance before the trial court or even before this court by way of amendment. In the absence of a prayer for refund of the advance money as indicated in section 22(1)( b), the trial court could not have granted a decree for refund of money with interest. But fortunately for the plaintiffs, none of the defendants have filed an appeal against the decree of the trial court, taking advantage of section 22(2). Even during the pendency of the appeal, no application for amendment was moved either to seek compensation under the proviso to section 21(5) or to justify the decree for refund of money under the proviso to section 22(2). Therefore, we are unable to grant any relief to the plaintiffs, other than what has already been granted by the trail court. 5. (2010) 7 SCC 717 = 2010-4-L.W 673 (laxman-Tatyaba-Kankate and another Vs. Taramati-Harishchandra-Dhatrak) Even though earlier there were some discordant notes here and there in laying down the law relating to the power of the court in ordering return of the advance amount and also in awarding compensation, in the absence of specific prayer as contemplated under section 21(5) and section 22 (2) of the specific Relief Act, 1963, now the law is settled in view of the available precedents. The relevant portion of the specific relief act are extracted here under: “section 21 – Power to award compensation in certain cases – 1. 2. 3. 4. 5. The relevant portion of the specific relief act are extracted here under: “section 21 – Power to award compensation in certain cases – 1. 2. 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 proceedings, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Section 22. Power to award compensation in certain cases – 1. 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. -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.” Unless there is a specific prayer in the plaint or in the amended plaint, the question of ordering return of the advance amount or awarding compensation would not arise. 63. Hence, in such a case, ex facie and prima facie, the first appellate court while agreeing with the lower court in rejecting the prayer for specific performance, was not justified in simply ordering refund of the advance amount as well as in awarding compensation. 64. There is also one other defect, I could notice in the judgment of the first appellate court in passing such an order because the factual findings are against the plaintiff. Once the court comes to the conclusion that the plaintiff has not approached the court with clean hands, the question of awarding compensation by no stretch of imagination or even by phantasmagorical thoughts would arise. However, the first appellate court did choose to do so, warranting interference in this second appeal 65. Once the court comes to the conclusion that the plaintiff has not approached the court with clean hands, the question of awarding compensation by no stretch of imagination or even by phantasmagorical thoughts would arise. However, the first appellate court did choose to do so, warranting interference in this second appeal 65. The reasoning found set out by the appellants judge for return of the advance amount and for awarding compensation, as though the defendants 1 to 8 are also responsible for bringing about a bad situation, in my opinion, was not found, as in the absence of a prayer for such return of the advance amount and for awarding compensation the same could not be ordered. 66. I recollect the following maxim: Ubi jus, ibiremedium and ibiremediumubi jus, (where there is a right, there is a remedy. It is said that the rule of primitive law was the reverse. Where there is a remedy, there is a right). 67. The plaintiff must be entitled to get certain reliefs and in the absence of the entitlement, the appellate court was not justified in awarding certain reliefs in favour of the plaintiff by finding fault with the defendants’ conduct when the plaintiff’s conduct itself was not above board. 68. (i) Accordingly, the substantial questions of law 1,2 and 3 are decided to the effect that in the absence of the specific prayer in the plaint or in the amended plaint, the first appellate court was not justified in awarding compensation as well as ordering return of advance amount. (ii) The substantial question of law no.4 is decided to the effect that the first appellate court was not justified in awarding compensation and return of advance amount and after giving a finding that the plaintiff was not entitled to specific performance because of the fraud practiced on the court by him. (iii)The substantial question of law no.5 is decided to the effect that in view of the ratiocination adhered to in deciding the aforesaid question of law, the question of apportioning the amount by the first appellate court among the defendants does not arise at all. 69. As such, I would like to decide the aforesaid question of law in favour of the appellants/defendants and as against the plaintiff. 70. In the result, the second appeal no.1125 of 2008 is dismissed in toto and the second appeal no. 69. As such, I would like to decide the aforesaid question of law in favour of the appellants/defendants and as against the plaintiff. 70. In the result, the second appeal no.1125 of 2008 is dismissed in toto and the second appeal no. 1009 of 2009 is allowed setting aside partly the judgment and decree of the first appellate court in awarding compensation as well as in ordering return of the advance amount. The judgment and decree of the first appellate court in rejecting the prayer for specific performance of Ex.A1 is confirmed. In this factual matrix, there shall be no order of costs.