V. Chitambaresh, J.

1. The suit in O.S. No. 74/2012 on the file of the Court of the Subordinate Judge of Ottappalam is one for specific performance of Ext. A1 agreement for sale of the property. It is the case of the plaintiff that a sum of Rs. 1,00,000/- was paid as advance out of the total sale consideration of Rs. 14,00,000/- to the defendant on the date of the agreement. The suit is essentially for specific performance to have the sale deed executed even though there is an alternative prayer for return of the amount paid as advance. The court below has dismissed the suit on the ground of limitation and also for the reason that the plaintiff was not ready and willing to perform his part of the contract.

2. The court fee was computed on the amount of the sale consideration as is warranted under Section 42(a) of the Kerala Court Fees and Suits Valuation Act, 1959 (the 'Act' for short). The court fee payable in the Regular First Appeal at the instance of the plaintiff shall be the same as that shown in the suit on the subject matter as per Section 52 of the Act. One-third of the court fee payable to the tune of Rs. 43,467/- was remitted at the time of admission of the Regular First Appear and the case stood posted for payment of the balance court fee. The plaintiff/appellant has now filed I.A. No. 2071/2016 seeking a declaration that the balance two-third of the court fee is not payable. The reason put forth is that the appellant is relinquishing his claim for specific performance and limiting his relief for the recovery of the amount paid as advance with interest. The appellant adopts the stand that one-third of the court fee already paid would suffice for the claim for return of the amount paid as advance with interest.

3. Explanation (4) to Section 52 of the Act is relied on to contend that the appellant need pay court fee only on the relief refused by the trial court which reads as follows:

"Explanation (4).-- where the relief prayed for in the appeal is different from the relief prayed for or refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal."

(emphasis supplied)

It is imperative that the relief should not only be prayed for or refused in the trial court but also that the relief prayed for in the appeal should be different from that earlier projected. It has been so held in P.V.K. Menon v. Excelads (P) Ltd. (2005 (1) KLT 995) while answering a reference in view of the difference of opinion between two learned Judges of this Court. The claim for recovery of the amount paid as advance was already made in the trial court and no different relief has been prayed for in the Regular First Appeal in order to attract Explanation (4) (supra).

4. It is also the contention that the appeal is a continuation of the suit and a part of the claim can be abandoned at any time under Order XXIII Rule 1 of the Code of Civil Procedure, 1908. The plea is that the appellant is free to abandon his claim for specific performance and confine his relief to the claim for recovery of the amount paid as advance. It should be borne in mind that the suit is one for specific performance with an alternative prayer for return of the amount paid as advance. The probable defence in a suit for specific performance is that it is the appellant who committed the breach and that the respondent has suffered damages on that count. The entitlement to receive compensation by the party who suffered damages due to breach is recognised under Section 73 of the Indian Contract Act, 1872. The recompense can be by appropriation of the whole or part of the amount received as advance and that portion is not liable to be refunded. Thus the performance of the contract in entirety is under scrutiny in the Regular First Appeal wherein the liability has to be fixed and the quantum of damages assessed. This is precisely why the court fee is payable on the to