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1999 Supreme(Mad) 2790
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. JAYASIMHA BABU & THE HONOURABLE MR.
JUSTICE P. SATHASIVAM
Dr.Suryakala represented by Power of Attorney Agent, Dr.C.Sreekumar
Versus
Prema Naidu
O.S.A.No.186 of 1999 and C.M.P.No.16976 of 1999
Decided On : 16-12-1999
T.V.Ramanujam, Senior Counsel, for T.V.Krishnamachari, for Appellant.
R.Thiagarajan, for Respondent.
A person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for 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.
Headnote:
AMENDMENT OF PLAINT - SPECIFIC PERFORMANCE OF CONTRACT - SEC.22 OF THE SPECIFIC RELIEF ACT, 1963 - COURT'S POWER TO GRANT RELIEF FOR POSSESSION, PARTITION, REFUND OR EARNEST MONEY, ETC. - PLAINTIFF ENTITLED TO AMEND PLAINT TO INCLUDE WORDS "HER NOMINEE OR NOMINEES" IN PRAYER FOR RELIEF - NO NEW CASE INTRODUCED - NO LACUNA FILLED UP - NO HARDSHIP TO DEFENDANT - AMENDMENT ALLOWED SUBJECT TO PAYMENT OF COSTS.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement of sale dated 12.1995, wherein the defendant agreed to sell the schedule mentioned property in favor of the plaintiff or her nominee or nominees. Plaintiff sought to amend the plaint to include the words "her nominee or nominees" in the prayer for relief. The trial court dismissed the application for amendment.
Finding of the Court:
The court held that the plaintiff was entitled to amend the plaint as claimed, in order to enable the court to decide all the points in controversy. The court relied on Sec.22 of the Specific Relief Act, 1963, which empowers the court to grant relief for possession, partition, refund or earnest money, etc., in a suit for specific performance of a contract for the transfer of immovable property. The court also noted that the agreement of sale enabled the plaintiff to ask the defendant to execute a sale-deed in her favor or in favor of her nominee or nominees.
Issues: Whether the plaintiff was entitled to amend the plaint to include the words "her nominee or nominees" in the prayer for relief.
Ratio Decidendi: The court held that the plaintiff was entitled to amend the plaint as claimed, in order to enable the court to decide all the points in controversy. The court relied on Sec.22 of the Specific Relief Act, 1963, which empowers the court to grant relief for possession, partition, refund or earnest money, etc., in a suit for specific performance of a contract for the transfer of immovable property. The court also noted that the agreement of sale enabled the plaintiff to ask the defendant to execute a sale-deed in her favor or in favor of her nominee or nominees.
Final Decision: The court allowed the appeal and set aside the order of the trial court dismissing the application for amendment. The court allowed the application for amendment as prayed for subject to payment of costs of Rs.5,000 to the respondent defendant.
P.Sathasivam, J.
Aggrieved by the order of the learned trial judge in Application No.2593 of 1999 filed by the plaintiff in C.S.No.30 of 1998 for amendment to her plaint in para 15-A she filed the above appeal.
2. The appellant/plaintiff has filed Civil Suit No.30 of 1998 before the original side of this Court for specific performance of an agreement dated 12. 1995. Pending the suit, the plaintiff has filed Application No.2593 of 1999 in the said suit seeking permission to amend para 15-A of the plaint for inclusion of the words “her nominee or nominees”. The said application was contested by the respondent herein and by order dated 29. 1999, learned trial Judge, after holding that what is sought for is not a casual omission, but a wanton omission and the proposed amendment would cause much hardship to the defendant than the plaintiff dismissed the said application, against which the present original side appeal is filed by the plaintiff.
3. Heard the learned Senior counsel for the appellant as well as learned counsel for the respondent.
4. Theplaintiff and the defendant entered into an agreement of sale dated 12. 1995 whereby the defendant agreed to sell schedule mentioned property in favour of the plaintiff or her nominee or nominees on certain terms as mutually agreed. Since the defendant failed to perform her part, the plaintiff laid the present suit for specific performance of the agreement of sale dated 12. 1995 or in the alternate to refund the advance amount with interest at 12 per cent paid by her at the time of the agreement. For the present, it is unnecessary to go into the further details regarding the suit claim. However, she has prayed for decree directing the defendant to perform the agreement dated 12. 1995 and convey the schedule mentioned property in favour of the plaintiff free from all encumbrances and put the plaintiff in vacant possession of the said property. The respondent here has filed a written statement disputing various averments made by the petitioner. Thereafter, the plaintiff has sought for an amendment to the plaint, particularly para 15-A for inclusion of the words “her nominee or nominees”. Mr.T.V.Ramanujam, learned Senior counsel, by drawing our attention to certain clauses in the agreement of sale, contended that the plaintiff is entitled to amend her plaint as claimed, more particularly in the light of Sec.22 of the Specific Relief Act, 1963, Clause 4 of the agreement runs as follows:
“The sale shall be to the party of the second part or to her nominee or nominees.”
Again in clause 6, it is stated as follows:
“The party of the 1st part agrees that the sale of the Schedule mentioned property shall be subject to the following conditions:
(a) The party of the Ist part shall obtain, the” no objection certificate “ from the I.T. Appropriate Authority for the sale, to the party of the second part of her nominee, or nominees of the schedule mentioned property and produce the same to the party of the second party and for that purpose, shall apply to the authorities concerned as per law.”
Accordingly, it is contended that by virtue of the above clauses, the plaintiff in the present suit for specific performance is entitled to obtain a decree directing the defendant to convey the schedule mentioned property in favour of her or her nominee or nominees. It is further stated that as per the terms, the talks took place on 111. 1997 and on the proposal of the plaintiff to the defendant, she agreed to execute and register the sale deed by executing a irrevocable power of attorney in her favour to enable her to develop the properly and to be sold to the nominees. Since there was no response to this proposal, the plaintiff is constrained to file the said suit for enforcing the agreement. The prayer in the plaint does not contain the words, “sale to nominee or nominees of the party of the second part“. In such circumstances, in order to include the words” or her nominee or nominees“, after the
