IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 26260 of 2009(O) -------------------------- OS.181/2007 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER: --------------- S.ABDUL HASSAN, S/O.SYED MOHMMED, T.C.38/783, SHA MANZIL, POWER HOUSE ROAD, THYCAUD, THIRUVANANTHAPURAM. BY ADV. SRI.B.SATHIQ SRI.C.ANIRUDHAN RESPONDENTS: --------------- 1. SUDHA KUMARI, W/O.LATE UNNIKRISHNAN NAIR SAIKRIPA, T.C.77/859, PETTAH, KADAKOMPALLY VILLAGE THIRUVANANTHAPURAM, NOW RESIDING AT B.S.N.L. QUARTERS, C-BLOCK 1ST FLOOR, PAROTTUKONAM, THIRUVANANTHAPURAM. 2. CHAITHRA LAKSHMI, D/O.LATE UNNIKRISHNAN NAIR, SAIKRIPA, T.C.77/859, PETTAH, KADAKOMPALLY VILLAGE, THIRUVANANTHAPURAM NOW RESIDING AT B.S.N.L. QURTARS, C-BLOCK 1ST FLOOR, PAROTTUKONAM, THIRUVANANTHAPURAM. 3. CHITRA LAKSHMI, D/O.LATE UNNIKRISHNAN NAIR (MINOR), AGED 17, SAIKRIPA, T.C.77/859, PETTAH, KADAKOMPALLY VILLAGE THIRUVANANTHAPURAM, NOW RESIDING AT B.S.N.L. QUARTERS, C-BLOCK 1ST FLOOR, PAROTTUKONAM, THIRUVANANTHAPURAM(R3 IS A MINOR REP.BY MOTHER R1) ADV. SRI.P.K.NIJOY FOR R1 TO 3 SMT.C.PRABITHA FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(W.P.C.26260/09) PETITIONER'S EXTS.: EXT.P1:TRUE COPY OF THE PLAINT IN OS NO.181 OF 2007 BEFORE THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM. EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT. EXT.P3: TRUE COPY OF THE AGREEMENT DATED 5.4.2006. EXT.P4: TRUE COPY OF THE ACCOUNT STATEMENT. EXT.P5: TRUE COPY OF THE I.A.NO.6447/09 IN O.S.NO.181 OF 2007 BEFORE THE PRINCIPAL SUB COURT, TRIVANDRUM. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 26260 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 6th October, 2009 JUDGMENT The Writ Petition is filed seeking the following relief: “To give appropriate direction to the Principal Sub Court, Thiruvananthapuram to consider and pass order under Exhibit P5 amendment petition before proceeding with the examination of the witness for the ends of justice.” 2. Petitioner is the plaintiff in O.S.No.181 of 2007 on the file of the Principal Sub Court, Trivandrum. Suit is one for specific performance of an agreement for sale, and the respondents are the defendants. The defendants are the legal heirs of the executants of P3 agreement. They filed a join written statement disputing the suit claim. At the stage when the suit came up for trial, the plaintiff moved an application for an alternative relief for refund of the amount paid under the agreement and the sums also alleged to have been paid subsequently by remittance to a bank to clear off the loan provided by security of the property covered by the agreement. P5 is copy of that application. The grievance canvassed by the petitioner is that the court below without considering P5 application is proceeding with the trial. W.P.C.No.26260/09 - 2 - 3. Notice given, the respondents have entered appearance. I heard the counsel on both sides. The application has been filed belatedly only after the case came up in the list for trial and the amount claimed by way of remittance is very much in excess of the suit claim is the submission of the learned counsel for the respondents to contend that the application is bereft of any merit. Whatever that be, under Section 22 of the Specific Relief Act in a suit for specific performance apart from seeking specific performance of the contract, the plaintiff is entitled to seek an alternative relief for refund of the amount paid to the other party in part performance of the contract. If such a relief is not canvassed, he will be precluded from getting any relief thereunder. So much so, P5 application filed before the court below should have been considered and disposed on merits. Proceeding with the trial without considering P5 application is not proper and correct. The court below is directed to consider P5 application with reference to the objections filed by the respondents and pass appropriate orders in accordance with law. I make it clear that further trial of the case shall proceed only after disposal of P5 application. Subject to the above direction, the Writ Petition is disposed. srd S.S. SATHEESACHANDRAN, JUDGE W.P.C.No.26260/09 - 3 -