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2021 DIGILAW 1905 (MAD)

R. Nagalakshmi v. E. Kanniammal

2021-07-16

P.T.ASHA

body2021
JUDGMENT : The defendants 1 to 6 are the appellants before this Court. The only ground on which the Judgement and Decree in A.S.No.87 of 2005 of the V Additional City Civil Judge, Chennai has been challenged is that the learned Judge has, without a prayer for refund being asked, ordered refund of the advance amount and compensation in a suit for specific performance. 2. For proper appreciation of the case on hand, it is necessary to briefly allude to the facts. The 1st respondent had filed a suit O.S.No.4279 of 1997 on the file of the XI Assistant City Civil Court, Chennai originally for the relief of specific performance and to set aside the decree in O.S.No.3802 of 1992 dated 20.07.1994. Thereafter, the suit has been amended to include the following reliefs: (a) To declare that the release deed dated 24.06.1998 executed by defendants 1 and 2 in favour of the 7th defendant is not binding on the plaintiff. (b) To declare the Judgement in O.S.No.7729 of 1992 dated 12.11.1998 and the consequent sale deed dated 16.11.1998 executed by defendants 3 to 6 as not binding on the plaintiff. 3. The case of the 1st respondent herein was that the suit property belonged to one Ambujammal who had purchased it under a sale deed dated 17.08.1938. Ambujammal had two daughters Manoranjithammal and Ramathilagammal and on her deminse the suit property devolved on her two daughters and the daughters were in joint possession of the same. 4. Manoranjithammal had two children Kanagavalli Ammal alias Saroja Ammal and Venkataramanujam Pillai. Ramathilagammal had four children, who were arrayed as defendants 3 to 6 and who are appellants 3 to 6 herein. The 1st respondent's case is that Manoranjithammal and Ramathilagammal had died intestate leaving behind their legal heirs who were in joint possession of the suit property for over a decade. Kanagavalli Ammal alias Saroja Ammal died leaving behind daughters Nagalakshmi and Vijayalakshmi who are appellants 1 and 2 herein. Like wise Venkataramanujam Pillai died leaving his son Illa Murugan who is the 7th defendant in the suit and the 2nd respondent herein. 5. The properties were not divided and while so the 1st respondent had approached the 2nd respondent to execute a sale deed in her favour. He had informed the other co-sharers for getting their consent. Like wise Venkataramanujam Pillai died leaving his son Illa Murugan who is the 7th defendant in the suit and the 2nd respondent herein. 5. The properties were not divided and while so the 1st respondent had approached the 2nd respondent to execute a sale deed in her favour. He had informed the other co-sharers for getting their consent. The 1st respondent once again requested the 2nd respondent to sell his share for which he had demanded the entire sale consideration which the 1st respondent was not ready to do. Thereafter, the 1st respondent approached appellants 1 to 6 asking them to sell their 1/4th share. Thereafter, the agreement of sale dated 08.06.1992 was entered into between the 1st respondent and the appellants herein. The agreement of sale was duly registered and except for the 2nd respondent, the appellants who were the defendants 1 to 6 in the suit had signed the said agreement. Under the deed of agreement, the sale had to be completed within 11 months after clearing the dispute with the 2nd respondent herein. 6. On 14.07.1992, the 1st respondent had issued a legal notice to the 2nd respondent calling upon him to receive a sum of Rs.1,00,000/- as a sale consideration in respect of a 1/4th undivided share. There was no response to the same as well as the 1st respondent had filed O.S.No.3802 of 1992 on the file of the XI City Civil Court, Chennai. Interim injunction was originally granted which was later vacated. 7. The 1st respondent would submit that by way of abundant caution she had made another agreement during the pendency of O.S.No.3802 of 1992. This agreement was executed on 03.05.1993. This agreement was also duly registered and signed by the appellants herein. There was no time limit fixed for the conclusion of the sale. Meanwhile, the appellants 1 and 2 colluded with the 2nd respondent and executed an agreement with him. O.S.No.3802 of 1992 was decreed in favour of the 2nd respondent and on the basis of this decree the appellants 1 and 2 had relinquished their share in favour of the 2nd respondent. 8. The 1st respondent would submit that this decree and deed of relinquishment is not binding on her since the appellants 1 and 2 had already entered into an agreement with the 1st respondent. 8. The 1st respondent would submit that this decree and deed of relinquishment is not binding on her since the appellants 1 and 2 had already entered into an agreement with the 1st respondent. The 1st respondent would submit that she has been ready and willing all along to perform her part of the contract but however the appellants herein had not come forward to execute and register the sale deed in her favour. The appellants have to execute a sale deed with reference to a 3/4th undivided share in favour of the 1st respondent. The decree in O.S.No.3802 of 1992 has to be set aside. 9. The appellants 1 and 2 had executed a registered release deed dated 28.08.1996 in favour of the 2nd respondent after the decree in O.S.No.3802 of 1992. The decree is not binding on the 1st respondent. However, the 2nd respondent had filed a suit in O.S.No.7729 of 1992 on the file of the XII Assistant City Civil Court, Chennai against the appellants 3 to 6 for specific performance of an alleged agreement entered into by his father with the mother of appellants 3 to 6. In this suit appellants 3 to 6 and the 2nd respondent have entered into a memorandum of compromise on 02.11.1990 in and by which appellants 3 to 6 had submitted to a decree acknowledging the fact that the sale consideration in respect of the property had already been received by the mother of appellants 3 to 6 and therefore they had submitted to the decree. 10. Therefore, the 1st respondent had filed an application for an amendment to declare the release deed as not binding on her and also to declare the Judgement and Decree in O.S.No.7729 of 1992 as not binding on her. 11. The suit was hotly contested by the appellants 1 and 2. The appellants 1 and 2 had accepted the earlier agreement of sale dated 26.04.1974 by Ramathilakammal in favour of the 2nd respondent. These appellants would contend that they had been impleaded as parties only in the instance of defendants / appellants 3 to 6, who inturn wanted to pressurise the 2nd respondent into compromising the suit O.S.No.29 of 1992 on the file of the Sub Court, Tiruvallore. The object had been achieved since the 2nd respondent had come for a settlement. These appellants would contend that they had been impleaded as parties only in the instance of defendants / appellants 3 to 6, who inturn wanted to pressurise the 2nd respondent into compromising the suit O.S.No.29 of 1992 on the file of the Sub Court, Tiruvallore. The object had been achieved since the 2nd respondent had come for a settlement. The decree in O.S.No.3802 of 1992 was valid and cannot be questioned by the respondent. 12. The 2nd respondent had pleaded that his father had perfected title by putting up a construction in the suit property to the exclusion of the other legal representatives and living there. Therefore, it is the contention of the 2nd respondent that he had filed the suit O.S.No.3802 of 1992 against the appellants 1 and 2. Further, his father had purchased his sister's share under an agreement of sale dated 26.04.1974 and the entire sale consideration was given on the very same day. Therefore, he had filed O.S.No.7729 of 1992 on the file of the XII Assistant City Civil Judge, Chennai against appellants 3 to 6 who are the legal heirs of Ramathilagammal for specific performance. 13. The 2nd respondent would contend that appellants 1 to 6 were colluding to blackmail him. He would further submit that the appellants had no salable interest in the suit property. Further, the suit is barred by limitation. The learned Trial Court Judge on considering the entire evidence on record both oral as well as documentary had dismissed the suit. 14. Challenging the same the 1st respondent had filed A.S.No.87 of 2005 on the file of the V Additional City Civil Judge, Chennai. The learned Appellate Court Judge partly allowed the appeal by modifying the same to the extent of directing the appellants herein to refund the advance amount of Rs.30,000/- with interest at the rate of 12% per annum from the date of plaint till the date of realisation and in addition pay a sum of Rs.2,00,000/- towards compensation with interest at the rate of 12% per annum from the date of plaint till date of realisation. 15. The second amount of Rs.2,00,000/- was payable since according to the appellate Judge the value of the property had gone up and the 1st respondent had parted with money. It is only against this decree that the appellants have preferred this Second Appeal. 15. The second amount of Rs.2,00,000/- was payable since according to the appellate Judge the value of the property had gone up and the 1st respondent had parted with money. It is only against this decree that the appellants have preferred this Second Appeal. The Second Appeal was admitted on the following Substantial Questions of law: “1. Whether the lower Appellate Court erred in law in granting the relief of refund of advance amount in the absence of any prayer and contrary to Section 22 (2) of the Specific Relief Act, 1963? 2. Whether the lower Appellate Court erred in law in awarding damages of Rs.2 lakh in the absence of any prayer, pleadings and evidence and contrary to Section 21(5) of the Specific Relief Act, 1963? 3. Whether the lower Appellate Court erred in law in granting the reliefs of refund of advance amount and damages when it has found that the plaintiff is guilty of serious misconduct and abused the process of Court?” 16. Mrs.Srividhya, learned counsel appearing on behalf of the appellants would submit that the 1st respondent / plaintiff had not sought the relief of refund or compensation. Without a prayer for the same granting of the relief is barred under Section 22 (2) of the Specific Relief Act. She would further submit that no proof has been provided by the 1st respondent to show damages for award of compensation. She would submit that although pending the suit the 1st respondent had amended the plaint once she had not deemed it fit to amend the plaint to include the relief of refund of the advance amount and in such circumstances the Lower Appellate Court has totally erred in passing the Judgement, which is under challenge before this Court. She would submit that the Trial Court had rightly rejected the said request. 17. Per contra, Ms.Gayatri, learned counsel appearing on behalf of Mr.P.B.Ramanujam, learned counsel for the 1st respondent would submit that the Division Bench of this Court in a case reported in 2019 (3) CTC 564 – R.Gnana Arulmoni Vs. R.S.Maharajan, had granted a similar relief without there being a prayer for refund. Therefore, the Judgement and Decree of the lower Appellate Court cannot be called into question. 18. Heard the learned counsels and perused the records. 19. R.S.Maharajan, had granted a similar relief without there being a prayer for refund. Therefore, the Judgement and Decree of the lower Appellate Court cannot be called into question. 18. Heard the learned counsels and perused the records. 19. The 1st respondent had filed the suit only for the relief of specific performance and to set aside the Judgement and Decree in O.S.No.3802 of 1992. There was no relief sought for refund of the advance amount. Thereafter, in the year 2002, the 1st respondent had filed I.A.No.304 of 2002 for amending the plaint to include two other reliefs, namely, to declare the release deed executed by appellants 1 and 2 in favour of the 2nd respondent and the Judgement and Decree in O.S.No.7729 of 1992 dated 12.11.1998 and the consequent sale deed dated 16.11.1998 executed by the appellants herein as not binding on the 1st respondent. 20. Even at this juncture, the relief of refund was not asked. Even after the suit was dismissed and the Trial Court had rejected the claim for refund the 1st respondent has not deemed it fit to seek an amendment at the appellate stage, which course is available to her under the proviso to Section 22 (2) of the Specific Relief Act. In the absence of such a relief being asked for the lower Appellate Court had proceeded to pass the following order: “In the result, the appeal is partly allowed and the judgment and decree passed by the learned XI Assistant Judge, City Civil Court, Chennai on O.S.No.4279/ 1997 dt.20-7-2004, is modified, by directing the defendants 1 to 6 to refund a sum of RS.30,000/- with interest at the rate of 12% p.a. to the plaintiff from the date of plaint till the date of reaslisation and in addition to that Rs.2 lakhs towards compensation to the plaintiff, together with interest at the rate of 12% p.a. from the date of plaint till the date of realisation. In the intrinsic circumstances of the case, both the parties are directed to bear their own costs.” 21. The reason for granting a compensation of Rs.2,00,000/- was that the value of the property has been increased in and around the suit property. That was the only ground on which the compensation was ordered. There is no documents filed to support such a compensation. Further, there is no rationale for the grant of this relief. The reason for granting a compensation of Rs.2,00,000/- was that the value of the property has been increased in and around the suit property. That was the only ground on which the compensation was ordered. There is no documents filed to support such a compensation. Further, there is no rationale for the grant of this relief. Section 22 (2) and its proviso would read as follows: “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.” Therefore, a plain reading of Section 22 (2) of the Specific Relief Act, would clearly spell out that without prayer there cannot be a relief of refund. In the instant case there is a deafening silent in this regard. The Judgement relied upon by the learned counsel for the 1st respondent would not advance her case since the direction for refund had been passed only by consent of parties. 22. In the result, the above Second Appeal is allowed and the Judgement of the Lower Appellate Court is set aside. Consequently, connected Miscellaneous Petition is also closed. No costs. 23. After the Judgement was pronounced, the learned counsel for the appellants agreed to refund the sum of Rs.30,000/-, which was paid as an advance and the learned counsel for the 1st respondent also agreed to receive the same. For Reporting Compliance post the matter on 30.07.2021.