IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26260 of 2009(O)
1. S.ABDUL HASSAN, S/O.SYED MOHMMED,
... Petitioner
Vs
1. SUDHA KUMARI, W/O.LATE UNNIKRISHNAN NAIR
... Respondent
2. CHAITHRA LAKSHMI,
3. CHITRA LAKSHMI,
For Petitioner :SRI.B.SATHIQ
For Respondent :SRI.P.K.NIJOY
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :06/10/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 26260 of 2009
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Dated: 6th October, 2009
JUDGMENT
The Writ Petition is filed seeking the following relief:
“To give appropriate direction to the Principal Sub Court,
Thiruvananthapuram to consider and pass order under Exhibit P5
amendment petition before proceeding with the examination of the
witness for the ends of justice.”
2. Petitioner is the plaintiff in O.S.No.181 of 2007 on the file of
the Principal Sub Court, Trivandrum. Suit is one for specific
performance of an agreement for sale, and the respondents are the
defendants. The defendants are the legal heirs of the executants of
P3 agreement. They filed a join written statement disputing the suit
claim. At the stage when the suit came up for trial, the plaintiff
moved an application for an alternative relief for refund of the
amount paid under the agreement and the sums also alleged to have
been paid subsequently by remittance to a bank to clear off the loan
provided by security of the property covered by the agreement. P5 is
copy of that application. The grievance canvassed by the petitioner is
that the court below without considering P5 application is proceeding
with the trial.
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3. Notice given, the respondents have entered appearance. I
heard the counsel on both sides. The application has been filed belatedly
only after the case came up in the list for trial and the amount claimed
by way of remittance is very much in excess of the suit claim is the
submission of the learned counsel for the respondents to contend that
the application is bereft of any merit. Whatever that be, under Section
22 of the Specific Relief Act in a suit for specific performance apart from
seeking specific performance of the contract, the plaintiff is entitled to
seek an alternative relief for refund of the amount paid to the other
party in part performance of the contract. If such a relief is not
canvassed, he will be precluded from getting any relief thereunder. So
much so, P5 application filed before the court below should have been
considered and disposed on merits. Proceeding with the trial without
considering P5 application is not proper and correct. The court below is
directed to consider P5 application with reference to the objections filed
by the respondents and pass appropriate orders in accordance with law.
I make it clear that further trial of the case shall proceed only after
disposal of P5 application. Subject to the above direction, the Writ
Petition is disposed.
srd S.S. SATHEESACHANDRAN, JUDGE
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