M.N. Javaraiah vs K. Chikkanna

B.V. Nagarathna, J.—This second appeal is preferred by the defendant, being aggrieved by the judgment and decree passed in R.A. No. 1000/2010, dated 23.11.2011, by the Fast Track Court-IV at Mysuru, confirming the order dated 26.07.2006 passed on preliminary issue on I.A. No. 6, in O.S. No. 336/1997, by the II Addl. I Civil Judge (Jr. Dn.) Mysore.

For the sake of convenience, parties would be referred to, in terms of their status before the Trial Court.

The brief facts of the case are that the appellant herein had filed O.S. No. 336/1997, seeking specific performance of an agreement to sell dated 11.12.1983 made in favour of the plaintiff. It is averred that defendant had agreed to sell the property to him for a valuable consideration of Rs. 48,000/-. On the date of execution of the agreement to sell, an advance consideration of Rs. 13,500/- was paid and possession was also handed over to the plaintiff who agreed to pay the balance sale consideration within a period of six months, as stipulated in the agreement. A sum of Rs. 20,000/- had to be paid towards further consideration and Rs. 15,000/- had to be paid to the Karnataka Housing Board by the plaintiff at the time of registration of the sale deed by the defendant.

During the pendency of the suit, the defendant herein filed an application under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, (C.P.C.) seeking rejection of the plaint by contending that earlier he had filed O.S. No. 238/1996 on the file of I Addl. Civil Judge, (Jr.Dn.) Mysuru, seeking recovery of possession of the suit schedule property, by contending that the period stipulated for performance of the agreement had expired and plaintiff herein was not ready and willing to perform his part of contract. That suit was decreed in favour of the defendant herein. Being aggrieved by the said judgment and decree, plaintiff i.e., appellant herein had preferred R.A. No. 50/1997 before the II Additional Civil Judge (Sr. Dn.) at Mysuru who dismissed the same on 14.01.2000. Thereafter second appeal in R.S.A. No. 276/2000 was filed before this Court which was dismissed on 17.04.2004. The appellant herein had filed Special Leave Petition in S.L.P.(C) No. 13790/2004 before the Hon''ble Supreme Court which was also dismissed on 28.07.2004.

Therefore, defendant contented that in view of the findings given by the various Courts to the effect that if the plaintiff was not ready and willing to perform his part of contract, the relief of specific performance could not be granted to the plaintiff and hence sought for rejection of the plaint on the basis of principle of res judicata. The trial Court on considering the said application framed issue Nos. 2 to 4 as preliminary issues and the same is read as under:--

"Whether the suit is barred by principles of res- judicata?

Whether the suit is barred by principles of order-2, Rule-2 of CPC?

Whether the suit is barred by time?

What order?"

On hearing the parties, the trial Court answered Issues No. 2 to 4 in favour of the defendant and rejected the plaint on the basis of the Order VII Rule 11(d) of C.P.C.

Being aggrieved by that order, the plaintiff had preferred R.A. No. 1000/2010. The First Appellate Court framed the following points for its consideration and the same are as under:

"1) Whether the delay can be condoned as sought in I.A. filed under Section 5 of the Limitation Act?

2) Whether I.A. No. 3 under order 41 rule 27 of C.P.C. deserves to be allowed?

3) Whether the suit of the plaintiff is hit by principles of res judicata.

4) Whether the judgment and decree passed by the trial court is capricious, illegal and call for interference by the appellate court?

5) What order?"

The First Appellate Court answered point No1 in the Negative and dismissed the appeal as well as the suit of the plaintiff. Being aggrieved by the judgment of the First Appellate Court as well as the order passed by the trial Court, plaintiff has preferred this second appeal.

Learned counsel for the appellant, while drawing my attention to various findings given in the judgment and decree of the First Appellate Court and the order passed on preliminary issues by the Trial Court contended that the Courts below were not right in holding that the suit was hit by principle of res judicata and thereby rejecting the plaint under Order VII Rule 11(d) of C.P.C. He contented that, no doubt, defendant had filed O.S. No. 238/1996 before the Trial Court seeking recovery of possession of the suit schedule property and that suit was decreed and the decree was confirmed by the Hon''ble Supreme Court. In the R.S.A. No. 276/2000 filed by the defendant herein this Court had observed that in the suit for specific performance of the contract pending before the Trial Court, the plaintiff herein could seek the relief for damages or return of the amount that had been paid by him to the defendant. That the Trial Court as well as the First Appellate Court had ignored the observations made by this Court in R.S.A. No. 276/2000, which judgment has been upheld by the Hon''ble Supreme Court and have erroneously allowed the application filed by the defendant herein. He further contended that in view of the observation of this court in R.S.A. No. 276/2000, the Trial Court had to try the suit filed by the appellant herein and pass the decree for refund of the amount. Therefore he submitted that substantial questions of law arise in the appeal and in order to consider those substantial questions of law on merits, appeal has to be admitted for a detailed hearing.

I have considered the submissions of the learned counsel for the appellant in light of the material on record and the law applicable to the case.

It is no doubt true that even prior to the suit for specific performance filed by the plaintiff in this matter O.S. No. 238/96 was filed by the defendant in this matter seeking relief of recovery of the possession with respect to agreement of sale dated 11.12.1983. That suit was decreed. Aggrieved by the decree passed in O.S. No. 238/1996, the appellant herein had filed R.A. No. 50/97 which was dismissed and R.S.A. No. 276/2000 which was also dismissed. That judgment and decree was upheld by the Hon''ble Supreme Court by dismissing S.L.P. No. 13790/2004. No doubt, it is only after the dismissal of the S.L.P., the application under order VII Rule 11(d) of C.P.C was filed by the defendant. Keeping in mind the aforesaid judgments and decrees of the hierarchy of courts, the trial court has held in this matter that the suit was barred on the principles of res judicata. On a perusal of judgment & decree in O.S. No. 238/1996, it is clear that a finding of fact has been given to the effect that the appellant herein was not ready and willing to perform his part of contract. That has made the trial court to opine that no further purpose would be served in trying the suit and therefore has allowed the application filed for rejection of plaint under Order VII Rule 11(d) of C.P.C. which order, has been confirmed by the First Appellate Court.

Learned counsel for the appellant drew my attention to paragraph Nos. 29 to 31 of judgment in R.S.A. No. 276/2000 and contended that this court had kept open for the plaintiff to seek relief of specific performance of the agreement to sell and in case, that relief was not granted, at least a direction for refund of the amount would have been made by the trial Court. But the trial court rejected the plaint under Order VII Rule 11(d) of C.P.C. While considering this contention reliance could be placed on Section 22 of the Specific Relief Act, 1963 (hereinafter, referred to as the "Act") which reads as under:--

"Section 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."

Under Section 22 of the Act, a person seeking specific performance of a contract for the transfer of immovable property may, in addition to the aforesaid reliefs, seek inter alia refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. But this is subject to the condition that a specific claim must be made in that regard. The proviso states that, in case the plaintiff has not claimed such a relief of refund, the Court shall at any stage of the proceeding allow the amendment of the plaint on such terms as may be just for including a claim for such relief. Also, the power to grant the relief of refund of any earnest money or deposit is without prejudice to the power of the Court to award compensation under Section 21 of the Act.

No doubt, there was a possibility of considering the alternative relief of refund of payment of advance sale consideration to the appellant herein as the relief for specific performance could not have been granted to him, on account of applicability of the principle of res judicata, but sub-section (2) of section 22 of the Act is significant as it categorically states that alternative relief cannot be granted unless it has been specifically claimed.

I have perused the copy of the plaint filed in O.S. No. 336/1997, out of which this appeal arises.

Learned counsel for the appellant during the course of his arguments candidly states that in the plaint, there was no specific relief claimed with regard to the refund of the advance amount made by the plaintiff. Even if that was so, under provisions of Section 22 of the Act, there is a provision for amendment of the plaint for seeking any other alternative relief. Unfortunately, in this case, plaintiff did not amend his plaint seeking such a relief. This court in R.S.A. No. 276/2000 has observed that the reliefs could have been sought by the plaintiff in an independent suit. But in the absence of any kind of prayer made in the plaint for by way of amendment to the plaint, in this matter, I am of the view that the trial court was right in rejecting the plaint and the first appellate court confirming that order.

The fact remains that the plaintiff did not seek for clubbing of his suit with O.S. No. 238/1996 which was pending as on the date his suit was filed. Neither plaintiff amended his plaint nor sought alternative relief for refund of the earnest money. In the absence of such steps being taken by the plaintiff, courts below were right in rejecting the plaint, I do not think there is a need to interfere in the judgment and decree of the First appellate court or the order of the trial court. No substantial question of law arises in this appeal.

Appeal is dismissed.