Andhra Pradesh High Court - Amravati
A Sai Prasad Died vs Chitta Venkata Subba Reddy on 8 January, 2020
Author: M. Ganga Rao
Bench: M. Ganga Rao
HONOURABLE SRI JUSTICE M. GANGA RAO
Civil Revision Petition No.389 of 2019
ORDER:
The petitioners who are unsuccessful respondents/ defendants filed this Civil Revision Petition under Article 227 of the Constitution of India, assailing the order dated 20.12.2018 passed in I.A.No.1534 of 2018 in O.S.No.80 of 2013 whereby and whereunder the petition filed by the plaintiffs under Order VI Rule 17 and Section 151 of CPC, seeking to amend the plaint for the purpose of claiming alternative relief of refund of the advance amount along with interest, was allowed.
2. Heard Sri Y.N.Vivekananda, learned counsel for the petitioners and Sri V.R.Reddy Kovvuri, learned counsel for the respondents and perused the material on record.
3. The plaintiffs filed the suit for specific performance of sale agreement dated 28.05.2011. The defendants filed their written statement resisting the claim of the plaintiffs. At the stage of trial, during the course of cross-examination of P.W.1 on 31.03.2016, the existence of the litigation and a status-quo order have been reveled in O.S.No.501 of 2012 on the file of III Additional Junior Civil Judge, Kadapa, was filed in respect of the suit schedule property. The plaintiffs made several payments by way of advance and part payments. The plaintiffs filed I.A.No.1596 of 2016 for amendment and it was allowed. However, the defendants filed Civil Revision Petition against the order in I.A.No.1596 of 2016 before this the High Court. In the CRP the counsel for the plaintiffs, without knowledge of the 2 plaintiffs, not pressed the order in I.A.No.1596 of 2016 and based on the said submission, this Court set aside the order in I.A.No.1596 of 2016. Thereafter, the present I.A.No.1534 of 2018 is filed seeking amendment of the plaint for the purpose of claiming alternative relief for refund of the advance amount. The said petition was allowed on 30.12.2018. Being aggrieved by the said order, the respondents/defendants filed the present revision petition before this Court.
4. Sri Y.N.Vivekananda, learned counsel appearing for the petitioners would contend that the petition filed for amendment of plaint for adding alternative relief of refund of advance amount is not maintainable, as the suit is coming up for trial and the evidence of P.W.1 was over, and the relief of refund was barred by limitation as per Article 54 of Limitation Act.
5. Sri V.R.Reddy Kovvuri, learned counsel appearing for the respondents would contend that the respondents/plaintiffs filed suit for specific performance of agreement of sale dated 28.05.2011 and while the matter was at the stage of trial, during the cross-examination of P.W.1 on 31.03.2016, the respondents came to know about the existence of litigation and passing of status-quo order in O.S.No.501 of 2012 on the file of III Additional Junior Civil Judge, Kadapa with regard to the suit schedule property. As the plaintiffs made several payments by way of advance and part payments and the respondents are ever ready and willing to perform their part of contract in pursuance of agreement of sale dated 28.05.2011. At this stage, the respondents filed I.A.No.1596 of 2016 for amendment of the 3 plaint seeking alternative relief of refund of advance amount and part payments made by the respondents by way of amendment of the plaint. The said I.A. was allowed and the petitioners/defendants carried the matter in revision by way of Civil Revision Petition No.4454 of 2017. This Court, by order dated 13.08.2018, based on the submission made by the respondents stating that the respondents are not pressing the order in I.A.No.1596 of 2016. The CRP Revision petition was allowed setting aside the order dated 17.02.2017 passed in I.A.No.1596 of 2016 in O.S.No.80 of 2013 by the IV Additional District Judge, Kadapa. Thereafter, the respondents filed the present I.A.No.1534 of 2018 for amendment of the plaint seeking alternative relief of refund of the advance amount with interest, but the same was allowed by the order under revision dated 20.12.2018. He further contends that in view of Section 22 of the Specific Relief Act, if the plaintiffs are not asked for alternative relief of refund of the amount, the respondents/plaintiffs are not entitled for the refund of the said amount. As per the provisions of Section 22 of the Specific Relief Act, at any stage of the proceedings for amendment of the plaint for possession or partition or separate possession of the property in addition to the performance or including the refund of any earnest money or deposit paid by him in case his claim of specific performance is refused he is entitled for refund of the amounts paid as per the agreement. The respondents have statutorily entitled for such an amendment as the said amendment would not change the cause of action and the nature and character of the suit, more so, it is 4 not prejudicial to the interest of petitioners/defendants. Hence, res judicata does not operate against the rights accrued statutory relief by virtue of provisions of Section 22 of the Specific Relief Act. When the suit for specific performance is brought within the period of limitation, the question of limitation does not come in the way of filing petition for alternative relief of refund of the advance amount with interest is not hit by the provisions of Article 54 of the Limitation Act. Hence, the contentions of the learned counsel for the petitioners would not be countenanced and does not merit consideration and the Revision Petition is liable to be dismissed.
6. In the facts and circumstances of the case and the submissions of the learned counsel for the parties and on perusal of the record, this Court found that the order under revision does not suffer from any illegality, irregularity, arbitrariness and violation of any provisions of law. The respondents filed suit for specific performance of agreement of sale dated 28.05.2011 and the respondents are ready and wiling to perform their part of contract as per the agreement of sale. When the respondents failed to execute the sale deed, the suit was filed. At the stage of trial and after completion of the evidence of P.W.1, the respondents came to know that in respect of the very same schedule property, the litigation is existed and status-quo order was passed in O.S.No.501 of 2012 by the III Additional Junior Civil Judge, Kadapa. In those circumstances, when the petitioners/defendants are not able to come forward to execute the sale deed in pursuance of the agreement of sale, continuing 5 the relief of specific performance of agreement of sale could not be legally permissible for the respondents/plaintiffs to pursue the same. In those circumstances, the respondents are entitled to refund of the advance amount with interest, but the same could not be granted without asking for the said relief as an alternative relief in the suit. In view of the provisions of Section 22 of the Specific Relief Act, they are not entitled for the relief of specific performance of agreement of sale. However, they are entitled for the relief of refund of the advance amount along with interest by way of amendment of the plaint in the suit filed for specific performance of agreement of sale. The respondents are entitled for amendment of the plaint for refund of amount by virtue of the provisions of Section 22 of the Specific Relief Act.
22. Power to grant relief for possession, partition, refund of earnest money, etc.-
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause(a) of 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.
(3) The power of the court to grant relief under clause(b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21. 6
7. The said provision states that notwithstanding anything contained in the Code, in a suit for specific performance, the plaintiff is entitled for appropriate relief or for amendment of the plaint for refund of the advance amount along with interest at any stage of the proceedings. In view of the provisions of Section 22 of the Specific Relief Act, the provisions of Order VI Rule 17 of the Code is no bar for permitting the proposed amendment of the plaint as sought for by the plaintiffs. The Hon'ble Supreme Court in the case of Babulal v. M/s.Hazari Lal Kishori Lal1 it was held as follows:
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. 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 1 AIR 1982 SC 818 7 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.
8. In view of the above stated reasons and legal position, the contentions of the petitioners/defendants that the earlier petition filed for the very same relief in I.A.No.1596 of 2016 which was dismissed by this Court as not pressed, would operate as res judicata. Hence, the present I.A.No.1534 of 2018 is not maintainable and is liable to be dismissed. In the interest of justice, the petitioners/defendants could not be allowed to appropriate the amounts paid by the respondents, in the circumstances of the case, it would amount to unjust of the petitioners.
9. In view of the above discussion and for the reasons stated supra, this Court find that the revision is devoid of merit and the same is liable to be dismissed.
10. Accordingly, the Civil Revision Petition is dismissed. No costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
___________________ M. GANGA RAO, J Date:08.01.2020 sdp 8 THE HON'BLE SRI JUSTICE M.GANGA RAO CIVIL REVISION PETITION No.389 OF 2019 08.01.2020 sdp