A suit for recovery of earnest money is maintainable even if the plaintiff has not averred and proved that he has performed or has always been ready and willing to perform the essential terms of the contract.

( 1 ) THIS Revision Petition is directed against an order of refusing to reject the plaint under Order 7 Rule 11, Civil Procedure Code on the ground that the plaint did not show any cause of action.

( 2 ) THE cause of action is mentioned in para 9 of the plaint. It reads as under: That the cause of action in favour of the plaintiff arose on 5 April, 1982 against the defendants, upon defendants receiving from plaintiff the said sum of Rs. 20,000. 00 for which receipt dated 5 April, 1982 was duly executed by defendants and delivered to plaintiff on 5 April, 1982. The cause of action thereafter arose in favour of the plaintiff on 7 April, 1982 by way of debit to the bank account of plaintiff; on 15 April 1982 when defendants failed to make availabale requisite documents to the plaintiff on June 5,1982 when defendants failed to execute and get registered the sale deed in favour of the plaintiff; on 5 July, 1982 when defendants failed to refund to plaintiff with interest the said sum of Rs. 20,000. 00 (Rupees twenty thousand) only; on 27 May, 1983 when the notice of demand dated 19 May, 1983 was served upon defendants, on 15 June, 1983 when the notice of demand dated 19 May, 1983 was served upon defendants, on 15 June, 1983 of the Counsel for the defendants was served upon Counsel for the plaintiff and on various other dates when the plaintiff called upon defendants to perform their part of the contract. The cause of action is continuing one and continues to subsist in favour of the plaintiff and against the defendants. "

( 3 ) THE plaintiff filed a suit for recovery of Rs. 26,120. 00. The amendment in the plaint had already been allowed in para 6 of the plaint to indicate that the plaintiffs were always ready and willing to perform the part of the contract. This amendment would obviously relate back to the date of institution of the suit.

( 4 ) ON an application for rejection of the plaint, the learned Additional District Judge rejected the contention of the learned Counsel for the revisioner by holding that AIR 1967 SC 868, Gomathinayagam Pillai v. Palaniswami Nadar, and AIR 1975 SC Delhi 137 Rai Rani Bhasin v. Kartar Singh, related to suit for specific performance and not a suit for recovery of the amount given as advance.

( 5 ) SECTION 22 of the Specific Relief Act permitted recovery of earnest money in alternative paid by any one of the parties in case his claim for specific performance was refused. Section 22 of the Specific Relief Act reads as under :

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 proceeding, 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. " (Emphasis supplied)

( 6 ) WHILE in a suit for specific performance, it is essential to make an averment that the plaintiff was and has always been ready and willing to perform part of the contract in terms of Section 16 (c) it does not appear to be so essential for seeking just recovery of earnest money that the plaint is bound to be rejected und