THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO
SECOND APPEAL NO.244 OF 2011
29-08-2012
Padam Satyanarayana
Smt.Ravula Varalakshmi and others
Counsel for the Appellant : Sri K.Chidambaram
Counsel for the Respondents: Sri Nimmagadda Satyanarayana
<Gist :
>Head Note:
? Cases referred:
1. 1997-LAWS (PAT)-3-52
2. AIR 2009 SC (SUPP) 2897
3. 1984 (1) An.W.R.336
JUDGMENT:-
The defendant in O.S.No.14 of 1994 on the file of the court of Senior Civil
Judge, Kovvur is the appellant herein.
02. The suit was one filed for specific performance of contract of sale
contending inter alia that the defendant has entered into an agreement of sale
on 17-12-1993 and first plaintiff paid an advance of Rs.1,15,000/- and the
balance of Rs.10,000/- is agreed to be paid by 17-03-1994. In case of default,
interest shall be paid @ 18%. After the said transaction, as there was an offer
for higher price, the defendant has issued a notice on 18-12-1993 with false
allegations for which a proper reply was given. Consequently, the suit was filed
for specific performance.
03. The defendant has denied the sale transaction and claimed that the son-in-
law of the first plaintiff took the defendant to the house of the first
plaintiff on 17-12-1993 and asked the defendant to sign on blank stamped papers
and due to fear and threat, he signed on the said papers. During the pendency of
the suit, the relief of amendment for alterative relief of refund of money was
filed and defendant contended that the said claim is barred by time.
04. After appreciation of the evidence on record, the court below has accepted
the agreement of sale as true, but, however, granted a decree for refund of the
advance money of Rs.1,15,000/- with interest @ 6%. As against that the appeal
was preferred to the VII Additional District Judge, West Godavari, at Eluru who
has also confirmed the said judgment and decree. Aggrieved by the said judgment,
the present Second Appeal is sought to be filed. The Second Appeal is admitted
on the following substantial questions of law:-
(i) Whether the relief of refund of the consideration is barred by time;
and
(ii) Whether Section 22 of the Specific Relief Act is independent or
subject to the provisions of the Limitation Act?
05. The learned counsel for the appellant sought to contend that the courts
below have not properly appreciated the evidence with regard to execution of the
agreement and passing of the consideration. Evidently, it is a question of fact,
which has to be decided by the court below. Considering the evidence of PWs.1 to
5, both the courts have found that the agreement is true and on the next day of
the agreement, a notice is given by the defendant is no ground to accept his
contention. It is difficult to believe that the agreement was obtained by force
or coercion. The particulars of which are not properly pleaded. Therefore, the
appellant cannot be allowed to contend on the question of fact about the
truthfulness of the agreement and also the payment of the consideration.
06. The learned counsel for the appellant sought to contend that the
alternative relief claimed by the plaintiff is barred by limitation as it was
not pleaded at the time of filing of the suit. As matter stands, evidently, the
alternative relief was not claimed when the suit was filed. The agreement of
sale is dated 17-12-1993 and the suit was filed on 17-03-1994. There is no doubt
about the fact that the alternative plea of the refund of consideration was
taken by the plaintiffs 2 to 5 who are the legal representatives of the first
plaintiff, who came on record in the year 1999. Evidently it is beyond three (3)
years from the date of suit and also from the date of agreement. It is to be
noted that under Section 22(2) of the Specific Relief Act, 1963 the plaintiff
can be permitted to amend the relief for refund of earnest money at any stage.
Section.22(2) of the said Act reads as under:-
"Section.22. Power to grant relief for possession, partition, refund of earnest
money, etc.,
(1)..........................
(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 proceeding, allow him to amend the plaint
on such terms as may be just for including a claim for such relief."
07. The learned counsel for the appellant relied upon a decision reported in
Bhagwati Prasad Jalan Vs. Smt.Prem Lata Devi Kedia1 whereunder the contention of
the appellant herein is supported. He also relied upon another decision reported
in M/S.Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons and
Ors2 whereunder an amendment of the plaint introducing the new cause of action,
if it is barred by limitation, cannot be allowed.
08. However, it is to be noted that the provision under Section 22(2) of the
Act is a special provision and it gives the power of amendment at any stage of
the proceedings. On this aspect, a decision rendered by this court reported in
Donthi Padmavathamma and another Vs. Suguna Fertilizers, by its Managing Partner
Durgamma Temple Street, Dharmavaram3 will answer the contention raised by the
counsel for the appellant and it was held in the said decision as under:-
"The proviso to sub-clause (5) of section 21 is clear and unambiguous and
enables the plaintiff to seek the amendment of the plaint at any stage of the
proceeding. The object obviously is to avoid multiplicity of suits. The
expression "at any stage" in it means without limitation either in the frequency
or duration or length of time. The question of applying the provisions of the
Indian Limitation Act in a case where the amendment of the plaint is sought
either under sub-clause (5) of section 21 or sub-clause (2) of section 22 of the
Act does not arise. A specific relief is an equitable remedy and the Courts are
competent to grant the relief sought for or other specific remedies which are
incidental. It is a matter of common knowledge that in some cases the contract
becomes unenforceable and the party suffers some loss. In such a case, it is
open for the party to ask for damages in the alternative in the same suit and
Section21 of the Act provides for the same".
09. Therefore, in view of the above circumstances, there is no substantial
question of law involved in this Second Appeal and the same is liable to be
dismissed.,
Accordingly, the Second Appeal is dismissed. No costs.
_______________________
N.R.L. NAGESWARA RAO,J
29-08-2012
