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2012 DIGILAW 3880 (MAD)

S. Balaradhakrishnan v. D. Ayyavu

2012-09-12

S.PALANIVELU

body2012
Judgment :- 1. The petitioner is the plaintiff in O.S.No.275 of 2008 on the file of the Additional Sub Court, Karur, which is a suit for specific performance of contract against the defendants. The suit was dismissed by the trial Court. Thereafter, he preferred an appeal before the learned District Judge, Karur in A.S.No.25 of 2011. Pending hearing of the appeal, he filed an application under Order VI, Rule 17 r/w. Section 151 CPC for amending the plaint for incorporating the prayer, in the plaint of alternative relief for refund of advance amount with interest. The learned District Judge has returned the application stating that the appeal is in part heard stage and hence how this application is maintainable at this stage to be stated. Hence, the petitioner is before this Court for necessary directions. 2. Mr.M.Karthikeya Venkitachalapathy, learned Counsel appearing for the petitioner would submit that inasmuch as Section 22(2) of the Specific Relief Act, 1963, enables the petitioner to file an application for alternative relief of refund of advance amount, he is not precluded from filing this application and that it is well settled proposition that such application for refund of advance amount can be filed in any stage of the proceedings, in case the relief was omitted to be mentioned in the plaint. 3. It is useful to extract Section 22(2) of the Specific Relief Act, 1963, which reads thus: "22.Power to grant relief for possession, partition, refund of earnest money, etc.- 2. No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief." 4. In support of his contention, the learned Counsel for the petitioner placed reliance upon a decision of this Court reported in 2002-1-L.W.415, (Viswanathan v. Ramakrishna Chettiar), wherein this Court has held that this Court has ample power to permit the party to amend the plaint as to the relief of refund of the amount, following a decision of the Hon'ble Supreme Court. The relevant portion with propositions laid down by the Supreme Court is as follows: "Though the Court below has granted the relief of refund of the amount of Rs.60,000.00 paid, even without specific claim by the plaintiff, in view of proviso to sub-section (2) of Section 22 of the Act, this Court has ample power to permit the respondent herein to amend the plaint. It is worthwhile to refer the decision of the Supreme Court in the case of BabuLal v. M/s.Hazari Lal Kishori Lal reported in AIR 1982 S.C. 818 = 95 L.W. 106 S.N. wherein while considering Sections 21, 22 of the Specific Relief Act, their Lordships have held that under the proviso to sub-section (2) of Section 22, where the plaintiff has not specifically claimed the appropriate relief apart from the decree for specific performance in his plaint in the initial stages of the suit, it would be open to him to seek for amendment of the plaint at any stage of the proceedings. The 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." 5. In view of Section 22(2) of the Specific Relief Act, 1963, as well as the decision of the Hon'ble Supreme Court as followed by this Court, it is held that the petitioner is at liberty to get permission to amend the plaint for incorporation of the relief of refund of advance amount. Hence, the application filed by him for the said purpose has to be directed to be taken on file by the Court below. 6. In fine, the Civil Revision Petition is allowed directing the learned District Judge, Karur to take the application filed by the petitioner under Order VI, Rule 17 CPC in A.S.No.25 of 2011, on file, if it is otherwise in order and to further proceed with the same in accordance with law. Consequently, connected miscellaneous petition is closed. No costs. The Registry is directed to return the unnumbered I.A. to the learned Counsel for the petitioner on proper acknowledgement.