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2011 DIGILAW 476 (AP)

Pothuraju Madhuramma v. Suroju Nagamani

2011-06-29

NOOTY RAMAMOHANA RAO

body2011
Judgment : 1. This Civil Revision Petition is directed against the order passed by the learned I Additional District Judge, Khammam in I.A. No. 111 of 2011 moved in O.S.No. 15 of 2007. 2. The petitioners herein are defendants 2 to 6 and consequently, respondents 2 to 6 in the aforementioned I.A. I.A.No. 111 of 2011 has been moved by the two plaintiffs seeking amendment of the prayer in terms of Order VI Rule 17 of the Code of Civil Procedure. The suit was instituted by them seeking specific performance of an agreement of sale entered into by and between them and the 1st defendant to the suit. Defendants 2 to 6 have been got impleaded as such subsequent to the institution of the suit. 3. The prayer that is sought to be introduced by way of amendment of the plaint is concerning refund of money, said to have been paid by the plaintiffs to the 1st defendant in the suit, in pursuance of the agreement of sale, which was the basis for the institution of the suit itself. It has been specifically averred by the plaintiffs and so was understood by all parties concerned that this portion of the relief is only an alternative relief, which is sought to be raised. 4. It is needless for Courts to observe that in a suit for specific performance, the relief being an equitable one, several factors are bound to be taken into account and consideration by the Court before granting the same. It would therefore, only be appropriate that all pleas and all reliefs should be accorded and considered in one proceeding, so that it would help avoiding multiplicity of proceedings. Insofar as permission to be accorded for amending the plaint is concerned, the principles governing the same have been set out in the judgments rendered by the Supreme Court in Ragu Thilak D. John v. S. Rayapan AIR 2001 SC 699 , Sampath Kumar v. Ayyakannu AIR 2002 SC3369 and Pankaja v. Yellappa AIR 2004 SC 4102 . It is now clearly enunciated that if sufficient factual background is present in the pleadings, amendment can be permitted at a later stage and it cannot be rejected on the ground of limitation only. It is now clearly enunciated that if sufficient factual background is present in the pleadings, amendment can be permitted at a later stage and it cannot be rejected on the ground of limitation only. I therefore, have no hesitation to reject the second contention of Sri T.P. Acharya, learned counsel for the petitioners that the suit having been instituted more than three years back prior to application moved seeking amendment, the I.A. should have been rejected as barred by limitation. 5. Dealing with the main contention of the learned counsel for the petitioners that the plaintiffs are now seeking the relief against all the defendants instead of confining it as against the 1st defendant, since this I.A. seeking amendment has been instituted after defendants 2 to 6 were added to the suit, finding them as proper and necessary parties, it is only appropriate that any relief that can be sought for thereafter has to be necessarily, be against all of them. However, it shall be open to defendants 2 to 6 to lead such evidence as is relevant and admissible to demonstrate that the relief as a whole or in particular the alternative relief sought for by instituting I.A.No. 2011 of 2011 is liable to be confined only as against the 1st defendant and the liability, if any, on that score, cannot be fastened on to them. It is for the Court to decide as to against whom the suit has got to be decreed and to what extent. Therefore, at this stage, it is not permissible for speculatively pronouncing any opinion on this aspect. 6. Finally, Sri Hari Sreedhar, learned counsel for the respondents/plaintiffs placed reliance upon the judgment rendered in Babu Lal v. M/s Hazari Lal Kishori Lal AIR 1982 Supreme Court 818, where the Supreme Court in paragraphs 11 and 12, dealing with Section 22 of the Specific Relief Act, 1963, has set out the principles as under: “11. Section 22 enacts a rule of pleading. The Legislature thought it will be, useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. Section 22 enacts a rule of pleading. The Legislature thought it will be, useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The Legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. 12. The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognized in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2) however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.” 7. In view of this principle, I have no hesitation to hold that an alternative relief for refund of the amount paid towards consideration amount can be claimed at any stage of the suit proceedings to avoid multiplicity of the proceedings and hence this Civil Revision Petition is accordingly, dismissed, but however, without costs.