BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:21/01/2009 Coram THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR C.R.P.(PD)(MD)No.781 of 2007 and M.P.No.1 of 2007 N.Chellan ... Petitioner vs. S.Nagaraja Perumal ... Respondent PRAYER Petition filed under Section 115 of the Civil Procedure Code against the Fair and Decretal order in I.A.No.182 of 2006 in A.S.No.17 of 2006, dated 14.11.2006 passed by the learned Subordinate Judge, Padmanabhapuram allowing the application seeking for an amendment filed by the respondent/petitioner/appellant under Order 6 Rule 17 of the Civil Procedure Code. !For Petitioner ... Mr.T.Arul ^For Respondent ... Mr.C.Godwin :ORDER
This Civil Revision Petition is filed under Section 115 of the Civil
Procedure Code against the Order dated 14.11.2006 made in I.A.No.182 of 2006 in
A.S.No.17 of 2006, on the file of the learned Subordinate Judge,
Padmanabhapuram, wherein the learned Subordinate Judge allowed the application
seeking amendment, filed by the respondent herein.
2. The respondent herein filed the suit in O.S.No.215 of 2002 on the file
of the Sub Court, Padmanabhapuram, against the petitioner/defendant and prayed
for execution of the sale deed in favour of the plaintiff on the basis of an
agreement of sale dated 27.09.2000. According to the plaintiff, a sum of
Rs.40,000/- was received by the petitioner/defendant and a sale agreement was
executed, which was not implemented by executing a sale deed. By a Judgment
dated 23.03.2005, the said suit was dismissed by the learned Subordinate Judge,
Padmanabhapuram.
3. Challenging the Judgment and Decree, the respondent filed appeal in
A.S.No.17 of 2006. In the said appeal, the respondent filed I.A.No.182 of 2006
seeking amendment of the plaint, directing the defendant/petitioner herein to
return back the earnest money of Rs.40,000/- with simple interest at the rate of
9% per annum from the date of execution of the sale agreement till date of
appeal, and thereafter, at 6% per annum, till payment of the same.
4. The said application was resisted by the petitioner herein stating that
the prayer sought for in the amendment application is frivolous and the demand
of refund is barred by limitation. The learned Subordinate Judge,
Padmanabhapuram, allowed the amendment application. The said Order is challenged
in this Civil Revision Petition on the ground that the amendment order alters
the subject matter and character of the suit and the exercise of discretion by
the Court below under Order 6 Rule 17 CPC is erroneous and the point of
limitation in getting refund of the said amount is also not considered by the
Court below.
5. The learned counsel for the petitioner submitted that the amendment
sought for is unnecessary, since the Appellate Court itself can order the refund
of the amount, if the appeal is dismissed and without even necessary alternative
prayer, the amount can be ordered to be returned, if the respondent establishes
his right to get the amount. In support of the said contention, the learned
counsel for the petitioner cited the Judgment of a Division Bench of this Court
in Fathima Majeed v. Subhapratha Ravikumar reported in 2008 (4) CTC 494.
6. The learned counsel for the respondent submitted that even though
without amendment the respondent is entitled to get the amount with interest on
equitable ground, for abundant caution, the amendment was prayed for, which was
rightly ordered by the Court below and no prejudice would be caused to the
petitioner by ordering amendment. In support of his contention, the learned
counsel for the respondent cited the Judgment of a Full Bench of this Court in
Hi.Sheet Industries v. Litelon Limited reported in 2006 (5) CTC 609.
7. I have considered the rival submissions made by the learned counsel
appearing for the petitioner as well as the learned counsel appearing for the
respondent.
8. The point in issue is whether an alternative prayer can be made for
specific performance of the agreement or in the alternate to refund the amount
received if the agreement is unable to be implemented in a specific performance
suit.
9. In Balasaheb Dayandeo Naik (Dead) through LRs & others v. Appasaheb
Dattatraya Pawer reported in 2008 1 LW 801, the Hon’ble Supreme Court held that
return of money can be ordered even if specific performance is not altered. In
Paragraph 13, it is held as follows:-
“……… The High Court commented the conduct of the plaintiffs in
praying for refund of the earnest money, namely Rs.20,000/- paid as advance. As
rightly pointed out, the claim for refund of earnest money is only their
alternative claim. It is not in dispute that in all suits for specific
performance, the plaintiff is entitled to seek alternative relief in the event
the decree for specific performance cannot be granted for any reason, hence
there is no infirmity in the alternative plea of refund”.
In Fathima Majeed v. Subhapratha Ravikumar reported in 2008 (4) CTC 494, the
Division Bench of this Court has held that even if alternative prayer is not
made, Court can order return of the money on equity ground. In paragraph 11, the
Division Bench of this Court has held as follows:-
“It is true, the plaintiff has not asked for any alternative relief of
recovery of money. Though it was not asked for, since it is for the relief of
specific performance, on the ground of equity, the Court can order so.
Accordingly, the defendant is directed to make payment of Rs.7,02,876.25 (Rupees
seven lakhs two thousand eight hundred and seventy six and twenty five paise
only) to the plaintiff within a period of three months and those amount carries
interest at the rate of 12% per annum from the respective dates of payments by
the plaintiff to the defendant, till realisation. On payment of the entire
amount, as stated above, the plaintiff is directed to hand over all the title
deeds, which were originally handed over to her, to the defendant. The Judgment
and decree made in C.S.No.733 of 1995 are set aside. Accordingly, this O.S.A is
disposed of. No costs”.
10. Here, in this case, even though no amendment is required to be made in
the plaint, for the return of the money, as an alternative prayer, the plaintiff
with an abundant caution, filed an application to amend the prayer in the suit,
which was rightly ordered by the learned Subordinate Judge, Padmanabhapuram and
by ordering such amendment, the nature of the suit is not altered in any manner,
since even without the amended prayer, the Court is entitled to order refund of
the amount on equitable grounds. The question of limitation also will not arise
in this case, as even without the amendment, the Court is entitled to order
refund of the amount with interest. The agreement is dated 27.09.2000 and the
suit was filed in the year 2002. The said ground raised by the petitioner in
this case also cannot be sustained.
11. The Full Bench of this Court in Hi.Sheet Industries v. Litelon Limited
reported in 2006 (5) CTC 609, clearly laid down the guidelines as to how the
amendment application should be considered, which reads as follows:-
“(a). As to whether amendment should be allowed or not;
(b). when it does not affect cause of action.
(c). it does not introduce new cause of action.
(d). it would not cause serious prejudice to opposite party;
(e) when such amendment is required in the interest of justice”.
12. Applying the said guidelines issued by the Full Bench in the above
referred decision to the facts of the case, I am of the view that the amended
prayer has not introduced any new cause of action and no prejudice is caused to
the petitioner/defendant in the suit. Merely because the amendment is ordered,
the right of the petitioner is not affected in any manner and consequently no
prejudice is caused to the petitioner. Hence, no case is made out to interfere
with the Order passed by the learned Subordinate Judge, Padmanabhapuram.
13. In the result, the Civil Revision Petition fails and the same is
dismissed. No costs. Consequently, connected MP is also dismissed.
NB
To
The Subordinate Judge,
Padmanabhapuram.