Section 22 of the Specific Relief Act permits amendments to include claims for refund of earnest money at any stage, overriding limitations in the CPC.

JUDGMENT :

Archana Puri, J.

1. Challenge in the present revision petition is to the order dated 19.07.2022 (Annexure P-7) passed by learned District Judge, whereby, an application filed by the respondent-plaintiff under Order 6 Rule 17 CPC, for amendment of the plaint, at the stage of first appeal, was allowed.

2. The facts germane, to be noticed, are as follows:

That, Civil Suit bearing No. 133 of 2018 was filed by the respondent (plaintiff before learned trial Court), for seeking possession by way of specific performance of the contract/agreement to sell dated 27.06.2017, with consequential relief of permanent injunction.

3. As per the version of the respondent-plaintiff, the petitioner- defendant, had entered into a registered agreement to sell dated 27.06.2018, with regard to the sale of suit property, for total consideration of Rs.19,30,000/-. Out of the said amount, respondent-plaintiff had paid an amount of Rs.6,00,000/- on 20.03.2015, Rs.8,00,000/- on 17.06.2016, Rs.2,30,000/- on 14.03.2017 in cash and Rs.2,00,000/- was paid through cheque No. 000035 dated 27.06.2017, to the defendant.

4. The stipulated date for execution of the sale deed was fixed as 22.05.2018. On the said date, the respondent-plaintiff had visited the office of Sub Registrar, Ballabhgarh, for registration of the sale deed, in his favour, but however, the petitioner-defendant did not make appearance. Thereafter, from time to time, the respondent-plaintiff had requested the defendant to execute the sale deed, in his favour, but the defendant had only given false assurances to the plaintiff. The intention of the defendant was bad not to execute sale deed. Ultimately, two legal notices dated 29.05.2018 and 17.07.2018 were issued by the respondent-plaintiff, but the defendant failed to execute the sale deed, in favour of the plaintiff, whereupon, suit for seeking decree of possession, on the basis of the agreement in question, as well as consequential relief of permanent injunction was filed.

5. In pursuance of the notice issued, the petitioner-defendant made appearance and had filed written statement, copy whereof is Annexure P-2.

6. Considering the contentions raised by the respondent-plaintiff aforesaid and also considering the pleas of the petitioner-defendant, as projected it the written statement, while observing various aspects of the factual position, as enumerated in the judgment, learned trial Court, was not inclined to give relief of specific performance.

7. Besides the same, qua the refund of earnest money, which allegedly was received by the petitioner-defendant, learned trial Court made an observation, while not granting refund of earnest money, which in verbatim, is reproduced, as herein given:

“27. So, plaintiff might have been entitled for refund of said money under section 22 of Specific Relief Act, 1963 but clause (2) of Section 22 of Specific Relief Act, 1963 specifically put a bar upon this court from granting relief of refund of earnest money unless it has been specifically claimed. Plaintiff never made any such prayer for refund of earnest money. So this court cannot grant him any relief in that regard in view of bar created by clause (2) to Section 22 Specific Relief Act, 1963.

28. Thus, issue no. 1 is partly decided in favour of plaintiff to the fact that defendant received 18.30 lakh from plaintiff but partly said issue is decided in favour of defendant to the effect that agreement Ex. P1 was not executed with intention to sale out the property but it was a mere security for repayment of loan. Issues no. 2, 3 and 4 are also decided against the plaintiff as discussed herein above.”

8. Ultimately, the suit was dismissed vide judgment dated 19.07.2019.

9. Being aggrieved by the judgment of dismissal of the suit, the respondent-plaintiff had filed the appeal. During the pendency of the appeal, amendment was sought by the respondent-plaintiff, to plead alternative relief of refund of earnest money. Reply to the said application was filed by the p