This Civil Revision Petition is filed under Section 115 of the Civil Procedure Code against the Order dated 14.11.2006 made in I.A.No.182 of 2006 in A.S.No.17 of 2006, on the file of the learned Subordinate Judge, Padmanabhapuram, wherein the learned Subordinate Judge allowed the application seeking amendment, filed by the respondent herein.
2. The respondent herein filed the suit in O.S.No.215 of 2002 on the file of the Sub Court, Padmanabhapuram, against the petitioner/defendant and prayed for execution of the sale deed in favour of the plaintiff on the basis of an agreement of sale dated 27.09.2000. According to the plaintiff, a sum of Rs.40,000/- was received by the petitioner/defendant and a sale agreement was executed, which was not implemented by executing a sale deed. By a Judgment dated 23.03.2005, the said suit was dismissed by the learned Subordinate Judge, Padmanabhapuram.
3. Challenging the Judgment and Decree, the respondent filed appeal in A.S.No.17 of 2006. In the said appeal, the respondent filed I.A.No.182 of 2006 seeking amendment of the plaint, directing the defendant/petitioner herein to return back the earnest money of Rs.40,000/- with simple interest at the rate of 9% per annum from the date of execution of the sale agreement till date of appeal, and thereafter, at 6% per annum, till payment of the same.
4. The said application was resisted by the petitioner herein stating that the prayer sought for in the amendment application is frivolous and the demand of refund is barred by limitation. The learned Subordinate Judge, Padmanabhapuram, allowed the amendment application. The said Order is challenged in this Civil Revision Petition on the ground that the amendment order alters the subject matter and character of the suit and the exercise of discretion by the Court below under Order 6 Rule 17 CPC is erroneous and the point of limitation in getting refund of the said amount is also not considered by the Court below.
5. The learned counsel for the petitioner submitted that the amendment sought for is unnecessary, since the Appellate Court itself can order the refund of the amount, if the appeal is dismissed and without even necessary alternative prayer, the amount can be ordered to be returned, if the respondent establishes his right to get the amount. In support of the said contention, the learned counsel for the petitioner cited the Judgment of a Division Bench of this Court in Fathima Majeed v. Subhapratha Ravikumar reported in 2008 (4) CTC 494.
6. The learned counsel for the respondent submitted that even though without amendment the respondent is entitled to get the amount with interest on equitable ground, for abundant caution, the amendment was prayed for, which was rightly ordered by the Court below and no prejudice would be caused to the petitioner by ordering amendment. In support of his contention, the learned counsel for the respondent cited the Judgment of a Full Bench of this Court in Hi.Sheet Industries v. Litelon Limited reported in 2006 (5) CTC 609.
7. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent.
8. The point in issue is whether an alternative prayer can be made for specific performance of the agreement or in the alternate to refund the amount received if the agreement is unable to be implemented in a specific performance suit.
9. In Balasaheb Dayandeo Naik (Dead) through LRs & others v. Appasaheb Dattatraya Pawer reported in 2008 1 LW 801, the Hon'ble Supreme Court held that return of money can be ordered even if specific performance is not altered. In Paragraph 13, it is held as follows:-
"......... The High Court commented the conduct of the plaintiffs in praying for refund of the earnest money, namely Rs.20,000/- paid as advance. As rightly pointed out, the claim for refund of earnest money is only their alternative claim. It is not in dispute that in all suits for specific performance, the plaintiff is entitled to seek alternative relief in the event the decree for specific performance cannot be granted for any reason, hence there is no infirmity in the alternative plea of refund". In Fathima Majeed v. Subhapratha Ravikumar reported in 2008 (4) CTC 494, the Division Bench of this Court has held that even if alternative prayer is not made, Court can order return of the money on equity ground. In paragraph 11, the Division Bench of this Court has held as follows:-
"It is true, the plaintiff has not asked for any alternative relief of recovery of money. Though it was not asked for, since it is for the relief of specific performance, on the ground of equity, the Court can order so. Accordingly, the defendant is directed to make payment of Rs.7,02,876.25 (Rupees seven lakhs two thousand eight hundred and seventy six and twenty five paise only) to the plaintiff within a period of three months and those amount carries interest at the rate of 12% per annum from the respective dates of payments by the plaintiff to the defendant, till realisation. On payment of the entire amount, as stated above, the plaintiff is directed to hand over all the title deeds, which were originally handed over to her, to the defendant. The Judgment and decree made in C.S.No.733 of 1995 are set aside. Accordingly, this O.S.A is disposed of. No costs".
10. Here, in this case, even though no amendment is required to be made in the plaint, for the return of the money, as an alternative prayer, the plaintiff with an abundant caution, filed an application to amend the prayer in the suit, which was rightly ordered by the learned Subordinate Judge, Padmanabhapuram and by ordering such amendment, the nature of the suit is not altered in any manner, since even without the amended prayer, the Court is entitled to order refund of the amount on equitable grounds. The question of limitation also will not arise in this case, as even without the amendment, the Court is entitled to order refund of the amount with interest. The agreement is dated 27.09.2000 and the suit was filed in the year 2002. The said ground raised by the petitioner in this case also cannot be sustained.
11. The Full Bench of this Court in Hi.Sheet Industries v. Litelon Limited reported in 2006 (5) CTC 609, clearly laid down the guidelines as to how the amendment application should be considered, which reads as follows:- "(a). As to whether amendment should be allowed or not;
(b). when it does not affect cause of action.
(c). it does not introduce new cause of action.
(d). it would not cause serious prejudice to opposite party;
(e) when such amendment is required in the interest of justice".
12. Applying the said guidelines issued by the Full Bench in the above referred decision to the facts of the case, I am of the view that the amended prayer has not introduced any new cause of action and no prejudice is caused to the petitioner/defendant in the suit. Merely because the amendment is ordered, the right of the petitioner is not affected in any manner and consequently no prejudice is caused to the petitioner. Hence, no case is made out to interfere with the Order passed by the learned Subordinate Judge, Padmanabhapuram.
13. In the result, the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected MP is also dismissed.
NB To The Subordinate Judge, Padmanabhapuram.