Punjab-Haryana High Court
Radha Raman Sharma vs Raj Kumar on 18 September, 2024
Author: Archana Puri
Bench: Archana Puri
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-3522-2022 (O&M)
Date of Decision: September 18, 2024
Radha Raman Sharma
...Petitioner
Versus
Raj Kumar
...Respondent
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Shiv Kumar, Advocate
for the petitioner.
Mr.Kunal Dawar and Ms.Tanika Goyal, Advocates
for the respondent.
****
ARCHANA PURI, J.
Challenge in the present revision petition is to the order dated 19.07.2022 (Annexure P-7) passed by learned District Judge, whereby, an application filed by the respondent-plaintiff under Order 6 Rule 17 CPC, for amendment of the plaint, at the stage of first appeal, was allowed.
The facts germane, to be noticed, are as follows:-
That, Civil Suit bearing No.133 of 2018 was filed by the respondent (plaintiff before learned trial Court), for seeking possession by way of specific performance of the contract/agreement to sell dated 27.06.2017, with consequential relief of permanent injunction.
As per the version of the respondent-plaintiff, the petitioner- VINEET GULATI 2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -2- defendant, had entered into a registered agreement to sell dated 27.06.2018, with regard to the sale of suit property, for total consideration of Rs.19,30,000/-. Out of the said amount, respondent-plaintiff had paid an amount of Rs.6,00,000/- on 20.03.2015, Rs.8,00,000/- on 17.06.2016, Rs.2,30,000/- on 14.03.2017 in cash and Rs.2,00,000/- was paid through cheque No.000035 dated 27.06.2017, to the defendant.
The stipulated date for execution of the sale deed was fixed as 22.05.2018. On the said date, the respondent-plaintiff had visited the office of Sub Registrar, Ballabhgarh, for registration of the sale deed, in his favour, but however, the petitioner-defendant did not make appearance. Thereafter, from time to time, the respondent-plaintiff had requested the defendant to execute the sale deed, in his favour, but the defendant had only given false assurances to the plaintiff. The intention of the defendant was bad not to execute sale deed. Ultimately, two legal notices dated 29.05.2018 and 17.07.2018 were issued by the respondent-plaintiff, but the defendant failed to execute the sale deed, in favour of the plaintiff, whereupon, suit for seeking decree of possession, on the basis of the agreement in question, as well as consequential relief of permanent injunction was filed.
In pursuance of the notice issued, the petitioner-defendant made appearance and had filed written statement, copy whereof is Annexure P-2.
Considering the contentions raised by the respondent-plaintiff aforesaid and also considering the pleas of the petitioner-defendant, as projected it the written statement, while observing various aspects of the factual position, as enumerated in the judgment, learned trial Court, was not VINEET GULATI 2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -3- inclined to give relief of specific performance.
Besides the same, qua the refund of earnest money, which allegedly was received by the petitioner-defendant, learned trial Court made an observation, while not granting refund of earnest money, which in verbatim, is reproduced, as herein given:-
"27. So, plaintiff might have been entitled for refund of said money under section 22 of Specific Relief Act,1963 but clause (2) of Section 22 of Specific Relief Act, 1963 specifically put a bar upon this court from granting relief of refund of earnest money unless it has been specifically claimed. Plaintiff never made any such prayer for refund of earnest money. So this court cannot grant him any relief in that regard in view of bar created by clause (2) to Section 22 Specific Relief Act, 1963.
28. Thus, issue no. 1 is partly decided in favour of plaintiff to the fact that defendant received 18.30 lakh from plaintiff but partly said issue ₹ is decided in favour of defendant to the effect that agreement Ex. P1 was not executed with intention to sale out the property but it was a mere security for repayment of loan. Issues no. 2, 3 and 4 are also decided against the plaintiff as discussed herein above."
Ultimately, the suit was dismissed vide judgment dated 19.07.2019.
Being aggrieved by the judgment of dismissal of the suit, the respondent-plaintiff had filed the appeal. During the pendency of the appeal, amendment was sought by the respondent-plaintiff, to plead alternative relief of refund of earnest money. Reply to the said application was filed by the petitioner-defendant. After hearing the counsel for the parties, the application for amendment was allowed vide impugned order dated 19.07.2022.
Being aggrieved, the petitioner-defendant has filed the revision petition in hand.
VINEET GULATI2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -4-
Learned counsel for the parties heard.
At the very outset, learned counsel for the petitioner-defendant submitted that relief of refund of earnest money was available with the respondent-plaintiff, on the date of institution of the suit, but no such relief was claimed. It was only during the pendency of the appeal, the application for amendment was filed, seeking alternative relief of refund of earnest money. Since, the relief for refund of earnest money had become barred by limitation by that time, therefore, it could not have been allowed by learned lower Appellate Court. By virtue of limitation having expired, right accrued to the petitioner-defendant and therefore, such claim, ought to have been denied to be inserted by way of amendment, at appellate stage.
On the other hand, learned counsel for the respondent-plaintiff had assiduously refuted the claim of the petitioner-defendant. He submits that provision of Order 6 Rule 17 CPC, does not govern the amendment sought, in view of the specific provision of Section 22 of the Specific Relief Act, which makes provision for amendment of the plaint to claim relief of possession, partition, refund of earnest money etc. Also, it is pointed out that proviso to Section 22(2) provides 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.
In the light of the aforesaid provision, learned counsel for the respondent-plaintiff also submitted that in fact, the proposed amendment did not relate to setting up of new case or new cause of action. In fact, it relates VINEET GULATI 2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -5- only to different or additional approach to the same facts, which would be allowed, even after the expiry of statutory period of limitation.
As such, it is submitted that learned lower Appellate Court has correctly allowed the application for amendment, which warrants no further interference by this Court.
Undoubtedly, the proviso to Rule 17 of Order 6 CPC, makes a provision for not allowing the application for amendment, after 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 the trial. But however, the said provision cannot be considered in isolation. The rule of pleading envisaged in a statute governing a particular jurisdiction, needs to be accorded due weight. Section 22 of the Specific Relief Act, 1963 enacts such a rule of pleading. Section 22 of the ibid Act, reads as under:
"S.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 [made by] him, in case his claim for specific performance is refused. (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 VINEET GULATI proceeding, allow him to amend the plaint on such terms as 2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -6- 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."
Evidently, the aforesaid section provides that plaintiff may claim decree for possession, partition and separate possession, in addition to specific performance and further provides that the plaintiff be allowed to claim such relief, 'at any stage of the proceedings'. It is imperative to note that Sub-section (1) of Section 22, gives an overriding effect to the said Section, by incorporating a non-obstante clause, as against the provisions contained in the Code. Moreover, the words, 'in an appropriate case' and 'at any stage of the proceeding' are of material significance and further expand the scope and ambit of the provisions contained in Section 22. The words, 'in an appropriate case' indicate that it is not obligatory for the plaintiff to seek such relief in every case. The relief envisaged by clauses (a) and (b) of Sub-section (1) can be sought and granted, where it is conducive to grant such a relief. However, the words, 'at any stage of the proceeding', do emphasize that the stage of the proceeding does not matter and if case is made out for seeking those reliefs, the stage of proceedings would not be a hindrance. The tone and tenor of this provision spells out that equitable relief of specific performance, ought to be complete and effective, to encompass in its fold, all that which a party had agreed to perform.
In this regard, beneficial reference is made to Lalchand Sheetalsing Pardeshi died through heirs and LRs vs. Ramkrishna VINEET GULATI 2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -7- Kashinath Jadhav & others, 2004(2) Bom. C.R. 757, wherein, the Hon'ble Court, while considering the provisions contained in Section 22 of the Specific Relief Act as well as Order 6 Rule 17 CPC, had made an observation, as herein given:-
"8. ......Section 22(1) has an overriding effect over the provisions contained in Civil Procedure Code. Section 22 is also a law dealing with pleadings, as is the case in relation to Order VI, Rule 17 of Civil Procedure Code. Section 22 deals with pleadings in regard to specific type of cases and, as such, the said statute viz. Specific Relief Act is a special statute, in contradistinction to the provisions in the Code of Civil Procedure which are general in nature. Provision in a special statute which has been given an overriding effect by introducing a non-obstante clause has to prevail over the provisions contained in the Code of Civil Procedure and, in this view of the matter, the submission canvassed on behalf of the petitioners, that Section 22 overrides the provisions contained in the proviso to Rule 17 of Order VI of Civil Procedure Code, has to be accepted.
9. Once it is held that Section 22 of the Specific Relief Act has an overriding effect over the provisions contained in Order VI, Rule 17, then it is amply clear that the plaintiff has a right to seek amendment claiming possession, in a suit for specific performance of contract, for the transfer of immovable property and the Court has no option and/or choice but to allow the said amendment. The proviso to Sub- section (1) of Section 22 of the Specific Relief Act enables the plaintiff who has not claimed the relief of possession in the plaint, to seek an amendment and claim the same at any stage of the proceedings and the said right of the plaintiff cast an obligation on the Court to allow the said amendment. The relevant words used in the proviso "the Court shall", clinches the issue. The word "shall" used in the proviso is mandatory."
It is not disputed that on the date, when the application for amendment of the plaint was made, during the pendency of the appeal, the claim for refund of earnest money, would have been barred by limitation. Also, it is settled position that amendment of plaint, when introducing a new VINEET GULATI 2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -8- claim, which would be barred by limitation, cannot be allowed. However, in this context, considering the proposed amendment of the case in hand, profitable reference is made to A.K.Gupta & Sons Ltd. vs. Damodar Valley Corporation, AIR 1967 Supreme Court 96, wherein, the Hon'ble Supreme Court has laid down as a general rule, that a party is not allowed by amendment to set up a new case or new cause of action, particularly, when the suit on the new cause of action is barred. However, at the same time, the Hon'ble Supreme Court had further held that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment would be allowed, even after expiry of the statutory period of limitation.
While relying upon Gupta's case (supra), in a decision rendered in Manohar s/o Dhundiraj Joshi vs. Jhunnulal s/o Hariram Yadao, 1983(85) BomLR 87, it was held that even though, qua the entitlement of the plaintiff for amendment, considering at least for the relief of compensation, could not be allowed, but however, the same could not be said with regard to the refund of earnest money, as this relief was being sought to be introduced in the plaint, only as an alternative relief, to the relief for specific performance for which the suit had been filed. It was also observed therein, that normally the plaintiff, in a suit for specific performance, would be entitled to refund of earnest money, if the relief for specific performance is refused, since this is just and equitable. Thus, applying the principles of Gupta's case (supra), it was held that it would not VINEET GULATI 2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -9- be possible to say that the amendment, with regard to the inclusion of relief for refund of earnest money, could have been refused, solely on the ground that the said relief was barred by limitation, on the day when the amendment was sought. Precisely, on this account, the order of denial of amendment, as passed by the Court below, was set aside.
Considering the provisions of Section 22 of the ibid Act, to be a rule of pleading, by virtue of proviso to sub-section (2), the Court, ought to permit the plaintiff, at any stage of proceedings, to include one or more of the reliefs, mentioned in clause (a) and (b) of sub-section (1) of Section 22 of the ibid Act, by means of amendment of the plaint, on such terms, as it may deem proper.
In this backdrop, adverting to the case in hand, it is pertinent to mention that the suit was filed for seeking possession, by way of specific performance of the agreement to sell dated 27.06.2017, with consequential relief of permanent injunction. On the basis of the pleadings, with regard to the manner of having entered into an agreement to sell dated 27.06.2017 and the payment of the earnest money and the stipulated date fixed for the execution of the sale deed, which was not complied with, along with the suit for specific performance of contract, the respondent-plaintiff had pleaded in the proposed amendment for inclusion of alternative relief of refund of earnest/advance money of Rs.18,30,000/-, together with the interest. This is an alternative relief sought and therefore, it does not amount to introduction of new cause of action and precisely, on this account, learned Appellate Court, had correctly allowed the application for amendment. VINEET GULATI 2024.09.18 10:13 I attest to the accuracy and authenticity of this document Chandigarh CR-3522-2022 -10-
As such, the impugned order, warrants no interference by this Court, in exercise of the revisional powers. Hence, the revision petition sans merit and the same is hereby dismissed.
September 18, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
VINEET GULATI
2024.09.18 10:13
I attest to the accuracy and
authenticity of this document
Chandigarh