Chattisgarh High Court
Rajesh Sahu vs Leel Kumar Daharia on 28 February, 2025
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Digitally signed
by AVANISH HIGH COURT OF CHHATTISGARH AT BILASPUR
KUMAR PATHAK
Date: 2025.03.03
14:10:28 +0530 FA No. 113 of 2020
RAJESH SAHU versus LEEL KUMAR DAHARIA
Order Sheet
28/02/2025 Mr. Shashi Bhushan, Adv. for the appellant.
Mr. Vineet Kumar Pandey, Adv. for respondent no. 1.
Ms. Mukta Tripathi, PL for the respondent No. 2.
Heard on I.A. No. 1/2020, application under Order 6
Rule 17 read with Section 151 of the Civil Procedure Code,
for amendment in the plaint.
Learned counsel for the appellant/plaintiff would
submit that, in the impugned judgment and decree, learned
trial Court has held proved that agreement to sell was
executed between the parties, and respondent No. 1/
defendant No. 1 has also obtained advance amount to the
tune of Rs. 5,00,000/- from the appellant/plaintiff. Though,
civil suit for specific performance of contract has been
dismissed by learned trial Court, but it has not passed order
for refund of the advance amount Rs. 5,00,000/-, hence,
appellant/plaintiff has filed instant appeal seeking aforesaid
relief. He would also submit that, plaintiff was expecting that
refund of aforesaid amount, as alternative relief, may be
granted to him, as such, he had not sought specific relief in
this regard, but such relief can be sought at any stage as
per Section 22(2) of the Specific Relief Act. Hence, it is
prayed that, aforesaid application may be allowed and the
plaintiff may be permitted to amend the relief clause of the
plaint.
Per contra, learned counsel for the respondent No.
1/defendant No. 1 would submit that, since no relief was
sought for by the plaintiff for refund of advance amount,
therefore, after such a long delay, the plaintiff cannot be
permitted to amend the pleading seeking refund of advance
amount.
As per impugned judgment and decree, learned trial
Court has held that agreement to sell was executed
between the parties and defendant No. 1 has also obtained
Rs. 5,00,000/- from plaintiff as advance amount against
said agreement. Though, the trial Court has declined to
grant decree in favour of plaintiff so far as it relates to
execution of specific performance of contract, but plaintiff
can claim refund of advance amount, if sale deed in
furtherance of execution of sell has not been executed and
he had not specifically sought relief in this regard.
"Section 22(2) of the Specific Relief Act reads thus :-
"22. Power to grant relief for
possession, partition, refund of earnest
money, etc.--
(1) xxx xxx xxx.
(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) xxx xxx xxx."
Having considered aforesaid provision and facts of
the case, I feel inclined to allow I.A. No. 1/2020, application
for amendment.
In view of above, I.A. No. 1/2020 is allowed. The
appellant/plaintiff is permitted to incorporate amendment in
the relief clause of the plaint within 3 working days.
List the case for final hearing on 5-3-2025.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
Pathak
