IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 WP(C).No. 14494 of 2009(O) --------------------------------------- IA.644/2009 IN O.S.927 OF 2008 of I ADDL.SUB COURT,ERNAKULAM .................... PETITIONERS/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. SRI.RENU JOY MATHEWS, S/O.V.JOY MATHEWS, C-6 HIG APARTMENTS, GANDHI NAGAR, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, KADAVANTHARA, KOCHI-682 020, REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, THE 3RD PETITIONER. 2. SRI.REGGI MATHEW, S/O.V.JOY MATHEWS, C-6, HIG APARTMENTS, GANDHI NAGAR, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, KADAVANTHARA KOCHI-682 020. 3. V.JOY MATHEWS, C-6 HIG APARTMENTS, GANDHI NAGAR, ELAMKULAM VILLAGE, KANAYANNOOR TALUK KADAVANTHARA, KOCHI-682 020. BY ADV. MR.SREELAL N.WARRIER MR.B.RAGHUNANDANAN RESPONDENT/APPLICANT/PLAINTIFF: ------------------------------------------------------- R.SATHEESH, S/O.VASUDEVAN PILLAI, AGED 45 YEARS, RESIDING AT 168, JAWAHAR NAGAR, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, KADAVANTHARA, KOCHI-682 020. BY ADV. MR.K.S.SAJEEV KUMAR, MR.LAJI ZAM ZACHARIA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14494/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE INTERLOCUTORY APPLICATION I.A. NO.644 OF 2009 IN O.S. NO.927/2008. EXT.P2: COPY OF THE COUNTER AFFIDAVIT IN I.A. NO.644 OF 2009 IN O.S. NO.927 OF 2008. EXT.P3: COPY OF THE ORDER ISSUED BY SUB COURT-II, ERNAKULAM I.A. NO.644 OF 2009 IN O.S. NO.927 OF 2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 14494 OF 2009 O ```````````````````````````````````````````````````` Dated this the 9th day of July, 2009 J U D G M E N T The question posed for consideration in this writ petition is whether after claiming a relief for a decree of specific performance can the plaintiff confine the relief only for the refund of the amount advanced to the opposite party by seeking an amendment to the reliefs in the suit. 2. The defendant in OS.No.927/08 on the file of the Ist Additional Sub Court, Ernakulam has filed this petition impeaching the correctness and propriety of the order passed by the learned Sub Judge, allowing the amendment application moved by the plaintiff to give up the relief claimed for specific enforcement of the agreement limiting it to the alternate relief for refund of the money paid under the agreement. His application moved under Order VI Rule 17 CPC was allowed by the court holding that it will not change the character o the suit, but, expressing a view that such an amendment would amount to an abandonment of the claim for specific performance. Impeaching that order the defendant has WPC.14494/09 : 2 : filed this petition canvassing the proposition that the abandonment of the claim for specific performance amounted to an 'abandonment' of the relief in the suit under Order XXIII Rule 1 CPC. 3. Relief claimed in a suit for specific performance of a contract of sale is an equitable relief, and more than anything it depends upon the discretion of the court having regard to the totality of the facts presented in the case. A party to an agreement which is enforcible under the Specific Reliefs Act has got various remedies which are equitable in nature. He can seek for enforcement of the agreement or repudiate the contract and seek refund of the sum which had been advanced to the opposite party or claim damages. Section 22 of the Specific Reliefs Act provides that when a party seeks for enforcement of an agreement of sale, in the alternative, he can seek for refund of the amount advanced to the opposite party. If that is not sought for as an alternative relief, the Act stipulates the relief should not be granted. Judicial pronouncements have also made it clear that such an alternative relief can be claimed at any stage of the suit. After having filed a suit for enforcement of the agreement with an alternative relief for WPC.14494/09 : 3 : refund of the advance paid to the opposite party can the plaintiff give up the relief of specific performance and if an amendment to that effect is made whether it would amount an abandonment of the suit itself is raised for consideration. In a case where the contract is repudiated and damages claimed, a party thereto cannot seek enforcement of the contract by way of amendment as that would change the character of the suit. But that is not the case where specific performance is claimed and in the alternative the refund of the advance is sought for as an alternative relief. For so many reasons the performance of a contract after the institution of the suit would be found impracticable and that would not disentitle the plaintiff who had sought for specific performance in seeking an amendment for confining his relief for refund of the advance paid under the agreement of sale. It would not amount to an abandonment of the suit, and it cannot be equated as an abandonment as contemplated under Order XXIII Rule 1 CPC. Where the law provides a party to a contract to have one or more reliefs, both are legally enforcible, confining his claim to one relief does not in any amount to an 'abandonment' but non pursuing of the other relief for one reason or other. True, he will not be able to WPC.14494/09 : 4 : pursue the relief given up any more. But to term the giving up of that relief as an 'abandonment' is not correct. In contracts to constitute 'abandonment' by conduct, the act relied on must be positive, decisive, unequivocal, and more than anything else inconsistent with the existence of the contract. The opposite party cannot canvass that in view of the amendment sought for he is entitled to have unlawful enrichment of the fund already collected from the plaintiff on the basis of an agreement of sale. At the most he can claim damages to the extent he suffered injury provided he establishes that the contract fell through because of the default of the plaintiff. I do not find any impropriety or illegality in the order passed by the court below allowing the amendment, but, at the same time, I make it clear that the view expressed by the court below on 'abandonment' is not correct. Writ petition is dismissed. (S.S. SATHEESACHANDRAN, JUDGE) aks