Madras High Court
P. Kathavan Servai And Ors. vs Rahima Beevi And Ors. on 27 February, 1989
Equivalent citations: (1989)1MLJ278
JUDGMENT Nainar Sundaram, J.
1. The question that presented difficulty to the learned Judges of this Court and which obliged them to refer the same to a Full Bench concerns the legal propriety of the plaintiff, who used for specific performance of a contract of a sale and who also, in the same suit, asked, in the alternative, for the relief of refund of earnest money or advance money, paid under the contract of sale preferring an appeal against the judgment and decree of the first Court, which granted him only the relief of return of the earnest money or advance money, or denying him the relief of specific performance. There are two pronouncement, both the Division Bench of this Court, one in Sakku Bai Ammal v. R. Babu Reddiar and Ors. (1977)1 M.L.J. 311 and the other in Senniappa Gounder v. V.K. Venkataraman and Ors. (1981) 94 L.W. 591. The earlier Bench expressed the view that when the plaintiff asked for reliefs in the alternative, he places such relief on per with each other and he makes an election even at the threshold, leaving entirely the grant of the one or the other of the reliefs to the court and after the grant of one such alternative relief, he is not an aggrieved person, who could carry the matter to the higher Court for the grant of that relief, which was not given by the first Court. The latter Division Bench, however, opined that the proper test to be applied is whether there is any inconsistent intention or conduct on the part of the appellant to approbate the judgment, appealed against, by taking a benefit therefrom and to reprobate the judgment by appealing against it. There are two pronouncements of the Supreme Court; one in Bhau Ram v. Baij Nath Singh and Ors. and the other Ramesh Chandra Chandick and Anr. v. Chuni Lal Subbarwal by his Legal Representatives and Ors. . We will presently advert to these pronouncements. There seems to be an opinion and understanding about these pronouncements that they do not lend support to each other.
2. The law relating to specific performance of contracts stands codified. Chapter II of the Specific Relief Act 47 of 1963, hereinafter referred to as the Act, sets down the provisions governing specific performance of contracts. For our purpose, Section 22 of the Act is relevant and it stands extracted as follows:
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 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 order deposit paid or (made by) him, in case his claim for specific performance is refused. (2) No relief under Clause (a) or (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 proceedings, 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.
We are not concerned with Clause (a) of Sub-section (1) thereof. The reliefs thereunder are in addition to specific performance. We are concerned with Clause (b) of Sub-section (1), which speaks about the alternative reliefs the plaintiff could ask for. The alternative reliefs would include the refund of any earnest money or deposit paid or made by the plaintiff. The grant of the alternative relief would arise only in case the plaintiff's claim for specific performance is refused. When the plaintiff asks for the alternative relief, there is no legal presumption or assumption that he gives up the main or primary relief of specific performance of the contract. The plaintiff primarily wants the relief of specific performance of contract pleads that in case that primary relief is to be refused he should be granted the alternative relief. It does not mean that when the primary relief is denied to the plaintiff, he could not be stated to be aggrieved person in respect of the decree of the first Court, denying him that relief on the reasoning that he has obtained the alternative relief. The remedy of an appeal is of course open only to a person aggrieved by an order or decree of the first Court. As to when a person could be stated to be an aggrieved person, so as to clothe himself with the right of appeal, the right conferred have got to be understood only in the context of the statute, which confers them. The decision of the first Court, in so far as it negatives the primary relief of specific performance, is materially adverse to the plaintiff. In other words, he has been denied or deprived of something to which, according to the plaintiff, he is entitled to. Viewed in the above light, certainly, an appeal, by a plaintiff obtaining only the alternative relief of refund of the earnest money or advance money, and who has been denied the relief of specific performance, is a competent appeal. In so far as the first Court denied him the relief of specific performance, the plaintiff must be held to be an aggrieved person. There could be an exception and that is where the plaintiff has acted or conducted himself in such a manner as to approbrate the judgment and decree given to him, such as taking the benefit thereunder and in such a case, he cannot be permitted to reprobate the judgment by appealing against it. This principle has been taken note of by the latter Division Bench in Senniappa Gounder v. V.K. Venkataraman and Ors. (1981) 94 L.W. 591. We find that in the earlier Division Bench, though there are categoric expressions indicating a contrary position, yet the discussion of the facts does indicate that the plaintiff was desirous of taking the benefit under the decree and tried, if possible to challenge the other portion of the judgment, which is prejudicial to him.
3. Coming to the pronouncements of the Supreme Court, after going through them, we find practically there is no conflict between the two. In Bhau Ram v. Baij Nath Singh and Ors. A.I.R. 1961 S.C. 1327, it was case of a suit, instituted by the plaintiff for the enforcement of the right of preemption and the Trial Court dismissed the suit. But, on appeal, it was decreed. There was an appeal to the Supreme Court by the defendant and there was a preliminary objection raised by the plaintiff, that the defendant was precluded from proceeding with the appeal on the ground that by withdrawing the pre-emption price he must be deemed to have accepted the decree and that he could not be heard to say that the decree was erroneous. In that context, it was observed that unless the party has so conducted himself as to make restitution impossible or inequitable, the principle of approbrate and reprobate would not apply. In Ramesh Chandra Chadiok and Anr. v. Chuni Lal Subharwal by his Local Representatives and Ors. , the same principle found expression in a slightly different language and it was observed that the appellant could not accept satisfaction of the decree of the Trail Court and yet prefer an appeal against that decree.
4. Hence, we answer the question, referred to us, as we have done above. Any observation found in Sakkur Bai Ammal v. R. Babu Reddiar and Ors. (1977)1 M.L.J. 311, running contrary to what we have expressed above, stands overruled. The references are answered accordingly. The appeals will have to go before the learned Judge or Judges, who should hear it or them on merits. We make no order as to costs.