IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 SA.No. 877 of 1998(D) --------------------- AS.191/1996 of SUB COURT, KASARAGOD OS.77/1995 of PRINCIPAL MUNSIFF COURT, KASARAGOD .................... APPELLANT(S): IST RESPONDENT IN AS-IST DEFENDANT IN OS. --------------------------------------------------------------------------------------------- K.RADHAKRISHNA BHAT, S/O. PADMANABHA BHAT, HINDU, CULTIVATOR, NOW AT HOTEL BRINDAVAN AT EDNEER IN PADI VILLAGE, KASARAGOD TALUK, P.O.EDANEER, BY ADVS. SRI.L.GOPALAKRISHNAN POTTI SRI.A.DINESH RAO RESPONDENT(S):APPELLANT IN A.S. - PLAINTIFF IN OS. --------------------------------------------------------------------------------- ABDUL KHADER, S/O.MOHAMMAD KUNHI, MUSLIM, BUSINESS MAN, RESIDING AT KONNATIKANA, IN ENMAKAJE VILLAGE, KASARAGOD TALUK, P.O. PERLA. R1 BY ADV. SRI.GRASHIOUS KURIAKOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 877 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of April, 2011. JUDGMENT A very short question arises for consideration in this Second Appeal by the defendant in O.S.77 of 1995 before the Munsiff's Court, Kasaragod. 2. The suit was one for specific performance of a contract. The extent of property involved was 33 cents. There were two agreements Exts.A1 and A2 dated 20.9.1989 and 9.2.1991 respectively. The sale consideration was Rs.7,500/-, out of which according to the plaintiff Rs.6,000/- has been paid. The period of execution of document was three years. Suffice it to say, the transaction did not take place and the sale deed was not executed. The plaintiff sued for specific performance. 3. The defendants resisted the suit by pointing out that it is a loan transaction and there was no S.A.877/1998. 2 agreement to that effect and the plaintiff was not entitled to specific performance. The second defendant filed a separate written statement almost taking similar contentions as that of the first defendant. They also made mention of another suit, O.S.599 of 1991 before the Munsiff's Court, Kasaragode regarding the transaction. He also disputed that the plaintiff is entitled to any relief in the suit. 4. On the basis of the above pleadings issues were raised by the trial court for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had Exts.B1 to B3 marked. The trial court on an evaluation of the evidence came to the conclusion that the plaintiff was not entitled to the relief of specific performance. Since there was no prayer for refund of the advance amount, no relief was granted in respect of the same. The trial court dismissed the suit. In appeal by the plaintiff, the lower appellate court concurred with the S.A.877/1998. 3 trial court as far as the finding that the plaintiff is not entitled to seek specific performance. However, the lower appellate court was generous enough to give a decree for Rs.6,000/- with 6% interest from the date of the suit. The aggrieved defendant has come up in appeal. 5. Notice is seen issued on the following questions of law: “A) Whether the decree for money can be granted in a suit for specific performance of an agreement without a claim for the same in view of Clause (2) of Section 22 of the Specific Relief Act. B) Whether the plaintiff can be given a decree for recovery of the amount paid towards consideration with interest without a direction to surrender the property which is held to be in the possession of the plaintiff.” 6. Learned counsel appearing for the appellant drew the attention of this court to Section 22 of the Specific Relief Act which says that unless there is a prayer for refund of the money, relief shall not be granted to that effect. S.A.877/1998. 4 Learned counsel also drew the attention of this court to the fact that both the courts below have found that the property is in the possession of the plaintiff and after granting a decree for return of advance amount, the property will be continue to be in the possession of the plaintiff by which he gains double advantage. Learned counsel pointed out that at any rate the money decree now granted by the lower appellate court is contrary to Section 22 of the Specific Relief Act. 7. There seems to be considerable force in the above submission. Section 22 of the Act reads as follows: “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- S.A.877/1998. 5 (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.” 8. The above section makes it very clear that unless a prayer is made for refund of the amount paid as advance, no relief shall be granted in that regard. The lower appellate court has chosen to grant a decree for Rs.6000/- S.A.877/1998. 6 with 6% interest from the date of suit. The lower appellate court forgot to note that the plaintiff is in possession of the suit property as found by the trial court and the result of money decree granted by the lower appellate court is that the plaintiff is also allowed to retain the property thereby giving him double advantage. There was no justification for the lower appellate court for granting a decree as there was no prayer to that effect. The only prayer was for specific performance. On that sole ground, the appeal will have to succeed. In the result the judgment and decree of the lower appellate court are set aside and that of the trial court are restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.