JUDGMENT This Regular First Appeal has been filed under Section 96 read with Order XLI Rules 1 and 2 of the Code of Civil Procedure (for short 'C.P.C.', hereinafter), and the appellant is the plaintiff in O.S.No.493/2009 on the files of the I Additional Sub Court, Ernakulam. The appellant assails the decree and judgment in the above case dated 09.09.2000, whereby the learned Sub Judge dismissed the suit filed by the plaintiff/appellant for specific performance of contract of sale finding that Ext.A1 agreement was not proved. The sole defendant is the respondent herein. 2. Heard the learned counsel for the appellant/plaintiff as well as the respondent/defendant in detail. Perused the pleadings and evidence being form part of the trial court records. 3. The parties in this appeal will be referred to as 'plaintiff' and 'defendant' referring their status before the trial court. 4. The case advanced by the plaintiff before the trial court was that the defendant agreed to sell 6/20 undivided share in the plaint schedule property having an extent of 32.5 cents, to the plaintiff for a total sum of Rs.4,50,000/- and accordingly, an agreement in writing dated 03.02.2007 was entered into between them. According to the plaintiff, the defendant on executing the agreement received Rs.1,60,000/- as advance and agreed to execute the sale deed as and when demanded within a period of thirty months, but the defendant failed to execute the sale deed even though the plaintiff was ready and willing to execute his part of the contract and to pay the balance sale consideration to the tune of Rs.2,90,000/-. Filing of the suit as O.S.No.770/2008 before the Sub Court, Ernakulam for partition also averred in the plaint. 5. Defendant entered appearance and admitted 1/5 undivided right of the defendant in the plaint schedule property. But the defendant specifically denied the execution of the agreement dated 03.02.2007. The specific case put up by the defendant before the trial court was that as on 10.06.2000, the defendant borrowed Rs.1,60,000/- from the plaintiff in connection with the marriage of her daughter which was solemnised on 14.08.2000. The further case of the defendant was that out of the said amount, Rs.1,50,000/- was repaid by 15 instalments as agreed upon and the balance is only Rs.10,000/-. 6. On the above pleadings, the trial court raised necessary issues and tried the matter. The further case of the defendant was that out of the said amount, Rs.1,50,000/- was repaid by 15 instalments as agreed upon and the balance is only Rs.10,000/-. 6. On the above pleadings, the trial court raised necessary issues and tried the matter. PW1 and PW2 examined and Ext.A1 marked on the side of the plaintiff. DW1 examined and Exts.B1 and B2 documents marked on the side of the defendant. 7. The trial court addressed the genuineness of Ext.A1 and found that the plaintiff failed to prove the execution of Ext.A1 agreement. Accordingly, the suit reliefs were denied. 8. While impeaching the veracity of the trial court judgment, it is pointed out by the learned counsel for the plaintiff that even though in the written statement, the defendant raised contention regarding receipt of Rs.1,60,000/- in connection with the marriage of her daughter and repayment of Rs.1,50,000/- out of the same, during her cross-examination as DW1, defendant specifically admitted that she did not return the said amount of Rs.1,60,000/-. Therefore, the plaintiff is entitled to get the said amount along with interest. It is also argued by the learned counsel for the plaintiff that the trial court dismissed the suit and it has been observed in paragraph 24 of the judgment that there was no alternative prayer for return of the advance amount. In view of the said observation, the appellant has filed I.A.No.2/2024 to amend the plaint by incorporating the plea to recover an amount of Rs.1,60,000/- to the defendant paid as advance with interest and compensation. 9. Opposing the contentions raised by the learned counsel for the plaintiff, the learned counsel for the defendant argued that the specific case of the defendant is that there is no agreement as alleged by the plaintiff and the trial court on evidence found that Ext.A1 was not proved and therefore, the plaintiff is not entitled to get any relief on the basis of Ext.A1. Regarding the admission made in the written statement to the effect that Rs.1,60,000/- was received by the defendant from the plaintiff in connection with the marriage of her daughter, according to the learned counsel for the defendant, the specific contention raised in the written statement was that out of the same, Rs.1,50,000/- was repaid and the balance amount is only Rs.10,000/-. According to the learned counsel, even though during cross-examination, DW1 gave evidence that the said amount also was not repaid, the prayer to get back the said amount received on 10.08.2000 is hopelessly barred by limitation and the suit is not for a such a relief. Therefore, the said amount could not be ordered to be returned when the evidence available in no way support the execution of Ext.A1. Therefore, he supported the trial court verdict and prayed for dismissal of the appeal. 10. In view of the rival arguments, the points raise for consideration are; (1) Whether I.A.No.2/2024 is liable to be allowed? (2) Whether the trial court is justified in holding that Ext.A1 sale agreement was not proved by the plaintiff? (3) Whether the decree and judgment of the trial court warrant interference? (4) Reliefs and costs. 11. Point Nos.2 to 4 :- Since these points are inter connected, the same can be discussed and decided together. 12. In the instant case, the specific case of the plaintiff before the trial court was that the defendant executed an agreement on 03.02.2007 agreeing to sell her undivided share (6/20), in the plaint schedule property having an extent of 32.5 cents for a total consideration of Rs.4,50,000/- and out of which Rs.1,60,000/- was paid in advance, on the date of execution of the agreement. The further case of the plaintiff was that in the sale agreement which is marked as Ext.A1, the time fixed for executing the sale deed was thirty months. Whereas the specific case of the defendant was that there was no agreement in the form of Ext.A1 executed by the defendant in favour of the plaintiff at any point of time. The specific case was that on 10.06.2000, the plaintiff borrowed an amount of Rs.1,60,000/- to the defendant and the marriage of her daughter which was solemnised on 14.08.2000. In order to prove the marriage, Ext.B1 marriage certificate issued from St.Mary's Church, Aiyampuzha dated 05.04.2006 showing solemnisation of marriage on 14.08.2000 has been let in evidence by the defendant. The further contention raised by the defendant was that out of the total amount of Rs.1,60,000/- received as on 10.06.2000, Rs.1,50,000/- was repaid by fifteen instalments and the balance amount so outstanding is only Rs.10,000/-. 13. The further contention raised by the defendant was that out of the total amount of Rs.1,60,000/- received as on 10.06.2000, Rs.1,50,000/- was repaid by fifteen instalments and the balance amount so outstanding is only Rs.10,000/-. 13. Now the crucial question arises for consideration is whether the evidence tendered by the plaintiff confined to that of PW1 and PW2 sufficiently proved the execution of Ext.A1 entitling the plaintiff to get the relief sought for in the plaint. On meticulous analysis of the evidence given by PW1 and PW2, the trial court found that Ext.A1 was not proved. PW1 filed chief affidavit in support of the averments in the plaint. During cross examination, PW1 admitted that he has been working as an officer in a Bank and the witnesses to A1 are the husbands of her sisters and all the sisters have share in the property covered by O.S.No.770/2008 (the suit for partition), and the plaint schedule property is a part thereof. During further cross examination, when he was asked specifically regarding the date of the stamp paper, viz., 07.06.2000 and how Ext.A1 was drafted in such a stamp paper on 03.02.2007, his answer was that he used to purchase stamp papers and one among the stamp papers so purchased was used for executing Ext.A1. According to PW1, he had given Rs.1,60,000/- on three occasions, viz., Rs.50,000/-, Rs1,00,000/- and Rs.10,000/- and Rs.50,000/- was given during June, 2005 and Rs.1,00,000/- was given during July, 2006, but he did not remember when he had given Rs.10,000/-. Even though he denied the case of the defendant regarding the receipt of a blank signed stamp paper and white paper at the time of borrowing Rs.1,60,000/- by the defendant on 10.06.2000 in connection with the marriage of the daughter of DW1, he also failed to explain regarding non signing of the agreement by the parties after putting signatures of the witnesses and he had given answer that there was no such practice. The most vital aspect in the evidence of PW1 is that he had approached a person to prepare the agreement, but he did not know whether he was a document writer. His version further is that he had drafted the agreement and he instructed the writer to correct the draft and type the same, but he did not remember when the draft was entrusted to that person. 14. His version further is that he had drafted the agreement and he instructed the writer to correct the draft and type the same, but he did not remember when the draft was entrusted to that person. 14. PW2, one among the attesting witness to Ext.A1, also filed a chief affidavit in support of execution of Ext.A1. During his cross-examination, PW2 identified his signature and admitted his status as the husband of the sister of PW1. During further cross-examination, PW2 admitted that before signing Ext.A1, he had read the contents and he did not visit the plaintiff thereafter. The trial court disbelieved the evidence of PW1 and found that the explanation offered by PW1 regarding execution of Ext.A1 on 03.07.2007 in a stamp paper purchased on 07.06.2000 who is a person working as a higher officer in a Bank. The trial court also found that on the other hand, the evidence of PW1 regarding receipt of Rs.1,60,000/- on 14.06.2000 and entrustment of a blank stamp paper and a blank signed paper and creation of Ext.A1 agreement in the said papers as contended by the defendant is more probable. In this matter, the case advanced by the defendant as deposed by DW1 that the defendant admitted to receive Rs.1,60,000/- on 14.06.2000 in connection with the marriage of her daughter which was solemnised on 14.08.2000, as evident from Ext.B1. Though in the written statement, the defendant placed plea of discharge of the said sum by paying Rs.1,50,000/- at the rate of Rs.10,000/- per month for 15 months, during cross examination, DW1 given evidence that the said amount was not repaid. 15. The learned counsel for the plaintiff had given much emphasis on this evidence while seeking amendment of the plaint to get back Rs.1,60,000/- admittedly received and not repaid by the defendant. 16. In the instant case, the specific case of the plaintiff rests on Ext.A1, the agreement for sale. 15. The learned counsel for the plaintiff had given much emphasis on this evidence while seeking amendment of the plaint to get back Rs.1,60,000/- admittedly received and not repaid by the defendant. 16. In the instant case, the specific case of the plaintiff rests on Ext.A1, the agreement for sale. However, going by the evidence of PW1 and PW2, the execution of Ext.A1 in a stamp paper purchased on 07.06.2000 and the execution of the same on 03.02.2007; and the non disclosure of the name of the person who typed or written the second page coupled with the circumstances regarding borrowing of Rs.1,60,000/- by the defendant in connection with the marriage of the daughter of the defendant as evident from Ext.B1 would show that the evidence of PW1 supported by PW2 is quite insufficient to prove the execution of Ext.A1, as found by the trial court. 17. Point No.1:- In the affidavit in support of I.A.No.2/2024, it has been contended that due to an inadvertent omission, the alternative prayer for the return of advance amount with interest was not incorporated in the plaint and therefore, by amending the plaint, the said prayer also to be allowed to be incorporated. Respondent filed counter affidavit and opposed the prayer in I.A.No.2/2024 and the relief sought for therein. The specific objection raised is that the amendment is sought for after thirteen years from the institution of suit and the proposed amendment would change the nature and character of the suit. Further, the same would affect the right of the defendant. It is also pointed out that no amendment of pleadings shall be allowed after the suit has entered the stage of trial, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. It is contended that no valid reasons otherwise stated in the affidavit to justify the amendment sought for. 18. It is contended that no valid reasons otherwise stated in the affidavit to justify the amendment sought for. 18. While substantiating the amendment sought for in I.A.No.2/2024, the learned counsel for the plaintiff has given much reliance on proviso to Section 22(b) of the Specific Relief Act, 1963 and also a decision of this Court reported in Manganalli Santhosh v. M.K. Narayani [ 2021 (6) KHC 363 ] , where this Court held as under; The proviso attached to sub-section (2) of Section 22 of the Act is obligatory that the court shall allow amendment of the plaint on such terms as may be just for including a claim of return of earnest money, partition, possession etc. arising out of the contract so as to give a complete decree. The proviso attached to Section 22(2) of the Specific Relief Act hence will have overriding effect over the provision dealing with amendment of plaint enumerated in the Code of Civil Procedure i.e. Order VI Rule 17. The reason behind it is that an incorporation of any of the relief mentioned in clause (a) or (b) of Section 22(1) of the Act will not change the nature and character of the suit and will not cause any prejudice to the parties or change in the evidence to be tendered, even after the incorporation of alternative relief of return of advance amount or the relief annexed with the performance of contract in full and complete. This might be the reason why the legislature has incorporated the proviso to Section 22(2) of the Act with the word “shall” so as to make it mandatory on the court to allow amendment when it is brought under that proviso. Hence, the question of delay in amending the plaint would not arise and it can be done even at the first appellate stage or at the second appellate stage as there is no restriction or time limit imposed anywhere under Section 22 of the Act. Hence,it is obligatory on the court to allow amendment in accordance with the mandate under Section 22(2) of the Specific Relief Act, wherein there is no scope for applying the mandate under Order VI Rule 17 C.P.C. 19. Hence,it is obligatory on the court to allow amendment in accordance with the mandate under Section 22(2) of the Specific Relief Act, wherein there is no scope for applying the mandate under Order VI Rule 17 C.P.C. 19. It is true that as per order VI Rule 17 of C.P.C., no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. At the same time, in cases seeking relief of specific performance on the strength of sale agreement, covered by Section 22 of the Specific Relief Act. Section 22 (b) provides that any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. Proviso to Section 22 stipulates 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. Reading Order VI Rule 17 of C.P.C. in juxtaposition, with proviso to Section 22(b), it is emphatically clear that proviso to Section 22(b) carves out an exception to the general principles regarding amendment of pleadings dealt under Order VI Rule 17 C.P.C. and thereby in cases where Section 22 of Specific Relief Act would apply, where the plaintiff has not claimed the reliefs, viz., possession or partition and separate possession or other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him in the plaint, the court shall, at any stage of the proceeding, allow the plaintiff to amend the plaint on such terms as may be just for including a claim for such relief. In such cases, proviso to Section 22(b) overrides the mandate of Order VI Rule 17 of C.P.C. No doubt, incorporation of any of the relief mentioned in clause (a) or (b) of Section 22(1) of the Act will not change the nature and character of the suit and will not cause any prejudice to the parties or change regarding the evidence, even after the incorporation of alternative relief of return of advance amount. The legal question is answered thus. 20. In view of the finding on point Nos.2 and 3, even though I.A.No.2/2024 filed to incorporate the relief to get back the advance sale consideration is legally maintainable and there is no legal bar in allowing the same, in the facts of the case, there is no reason to allow the petition since the same would not serve any purpose; therefore, the said petition is only to be dismissed. 21. Overall evaluation of the evidence discussed, the conclusion is that the plaintiff miserably failed to prove Ext.A1 agreement and consequently, the plaintiff is not entitled to get any amount on the strength of Ext.A1 and the suit is not for getting back the amount paid on 04.06.2000 as contended by the defendant. Even otherwise the said plea is barred by limitation. 22. Holding so, this appeal fails and is dismissed. Consequently, the decree and judgment of the trial court are upheld. 23. I.A.No.2/2024 stands dismissed. Considering the particular nature of this case, parties are directed to suffer their respective costs.