Kerala High Court
Unnikrishnan vs Saraswathy on 2 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
R.F.A.No.235 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
RFA NO. 235 OF 2018
AGAINST THE JUDGMENT & DECREE DATED 31.03.2018 IN OS
NO.705 OF 2012 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/PLAINTIFFS:
1 UNNIKRISHNAN
AGED 45, S/O.MUTHU, SANKARANKANDATH VEEDU, MANALI,
KOPPAM P.O., MARUTHAROD VILLAGE, PALAKKAD TALUK &
DISTRICT, PIN-678001.
2 ANOOP SANKAR
AGED 41, S/O.BALARAM, FIELD VIEW ROAD, SAHYADRI
COLONY, CHANDRANAGAR, MARUTHAROAD VILLAGE, PALAKKAD
TALUK & DISTRICT, PIN-678001.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENTS/SUPPL.DEFENDANTS 2 TO 6:
1 SARASWATHY * (DIED LRs RECORDED)
W/O.BHAGAVATHY GOUNDER, ELIPPARA, VADAKARAPATHY
VILLAGE, CHITTUR TALUK, PALAKKAD DISRICT-678001.
2 DHANBHAGYAM
AGED 43, W/O.BALASUBRAMANIAN, ELIPPARA,
R.F.A.No.235 of 2018
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KOZHIPRA P.O., CHITTUR TALUK,
PALAKKAD DISTRICT-678001.
3 RENUKA
AGED 41, W/O.BALASUBRAMANIAN, KALLIYANKADU VEEDU,
WALAYAR DAM P.O., PUDUSSERY AMSOM, PALAKKAD TALUK &
DIST-678001.
4 MANIMEGHALA
AGED 39, W/O.ARUSWAMI, ALAMARATHOTTAM,
NAVAKKARAI P.O., COIMBATORE, TAMIL NADU,
PIN-641105.
5 SELVI
AGED 32, W/O.KUMARASWAMI, MARAPPALAM THOTTAM,
MAVUTHAMPATHY, NAVAKKARAI P.O., COIMBATORE,
TAMIL NADU-641105.
*IT IS RECORDED THAT THE FIRST RESPONDENT IS DEAD AND
RESPONDENTS 2 TO 5 ARE HER LEGAL HEIRS AS PER ORDER
DATED 02/06/2025 IN MEMO DATED 24.03.2025
BY ADVS.
SRI.K.RAVI (PARIYARATH)
SHRI.A.V.RAVI
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
02.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.F.A.No.235 of 2018
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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R.F.A.No.235 of 2018
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Dated this the 2nd day of June, 2025
JUDGMENT
P.Krishna Kumar, J.
The suit for declaration and specific performance of
a contract for sale of immovable property instituted by the
appellants was dismissed by the Sub Court, Palakkad, on
finding that the appellants were not ready and willing to
perform their part of the contract within the time
stipulated in the agreement. The above judgment is
challenged in this appeal.
2. There is no dispute that the appellants and the
original defendant entered into an agreement for the sale of
the plaint schedule property on 29.06.2011 for a sale
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consideration of Rs 18,250/- per cent. There is also no
dispute that the appellants paid Rs 22 lakhs to the original
defendant as advance sale consideration. According to the
appellants, the original defendant did not cooperate in
measuring out the property within the stipulated time, which
caused the delay in executing the sale deed. The appellants
further contended that though the property in question was
described as 660 cents in the title deed, when the
appellants got the property measured out with the assistance
of a private surveyor, it was found that the respondents
were in possession of only 582 cents of land. As the
original defendant claimed that he had rescinded the
contract, a relief for a declaration against the rescission
was sought, apart from the one for specific performance. The
suit was also instituted against the first respondent, the
wife of the original defendant, on the grounds that a
settlement deed pertaining to the plaint property was
executed by the original defendant in her favour, while the
agreement was in force and thus it is not binding on the
appellants, as it was made solely to defeat their rights
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under the contract.
3. Refuting the above contentions, the original
defendant pleaded that they were always ready and willing to
measure out the property, but the sale did not materialise
due to the laches on the part of the appellants. Despite
making several demands, the appellants failed to pay the
balance sale consideration, it was contended.
4. After considering the oral and documentary evidence,
the trial court concluded that the appellants failed to
prove their capacity to pay the balance sale consideration
and that the time was the essence of the contract, yet the
appellants failed to pay the balance amount within the time
stipulated in the agreement. Accordingly, the learned Sub
Judge dismissed the suit.
5. We have heard the learned counsel appearing on both
sides.
6. After perusing the records before us, we find
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sufficient justifications for declining the discretionary
remedy of specific performance. Though the appellants set up
a case that the extent of property in the possession of the
original defendant was less than what is shown in the title
deed, there is no evidence to prove that the appellants have
taken any effective steps from their part before the
expiration of the period prescribed in the contract for
sale. The period fixed in the agreement for the performance
of the contract was six months. It is in evidence that soon
after the said period, the respondents sent Ext.A3 lawyer's
notice to the appellants stating that they failed to perform
their duties.
7. It is true that there was a real dispute regarding
the exact extent of the property in the respondents'
possession. However, the balance sale consideration would
exceed Rs. 1 crore even if the extent of the land is
calculated based on the appellants' assessment. The
appellants did not produce any convincing evidence to show
that they were ready to pay or had the source to pay the
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said amount within the stipulated time.
8. In view of the above discussion, we find that the
trial court was right in having declined the discretionary
relief to the appellants. In that circumstance, the grant of
a declaration against rescission of the contract does not
arise at all.
9. However, the appellants did not seek any alternate
relief for the return of the advance sale consideration.
Significantly, while this appeal was pending, the appellants
moved an application under Order VI Rule 17 of the Code of
Civil Procedure, 1908, for amending the plaint to
incorporate an alternate relief of return of the advance
amount. According to the appellants, it was because of an
accidental slip, they omitted to make the above pleadings in
the plaint. Though the learned counsel appearing for the
respondents stoutly objected to the said application, in
view of the specific provision contained in Section 22 of
the Specific Relief Act, 1963, we are of the view that the
request made by the appellants can be considered favourably.
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10. The proviso to Section 22(2) of the said Act inter
alia provides that if the plaintiff has not claimed any
relief for refund of earnest money or deposit paid by him as
an alternate relief, 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. Since
the proviso to Section 22(2) of the said Act is a special
provision that enables the plaintiff to amend the plaint to
include a claim for such relief, the amendment can be
permitted even at the appellate stage. The phrase 'at any
stage of the proceeding' includes the appellate stage, as an
appeal is a continuation of the original suit.
11. At this juncture, the learned counsel appearing for
the respondents pointed out that they have filed a counter
to the application stating that they suffered damages
consequent on the breach. It was urged that if this court
allows the application made by the appellants for such
amendment, the respondents should also be permitted to amend
their pleadings or to file additional written statement to
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enable them to claim damages on account of the failure of
the appellants. The above submission seems to be fair and
reasonable, and we accept the same. In such circumstances,
it is necessary to remit the suit to the trial court for a
fresh disposal for the limited purpose.
12. Whether the transfer by the original defendant to
his wife during the subsistence of the agreement is valid
and how far it will affect the claims of the appellants are
all matters to be considered by the trial court while
considering the alternate relief of return of advance. It is
made clear that we have not expressed any opinion on such a
claim.
13. Resultantly, the appeal is allowed in part. While
affirming the finding of the trial court that the appellants
are not entitled to get the relief of specific performance
of the contract, the decree dismissing the suit will stand
set aside. The suit will stand restored to the file.
I.A.No.1/2025 seeking to amend the plaint will stand
allowed. The appellants shall carry out the amendment as
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sought in I.A.No.1/2025, within 15 days from the date fixed
for appearance before the trial court. The respondents shall
be allowed to file an additional written statement or to
amend the written statement to enable them to claim damages
as mentioned above. Both sides shall be permitted to adduce
evidence. The Trial Court will dispose of the suit insofar
as it relates to the alternate relief.
14. The parties shall appear before the trial court on
25.06.2025.
As the suit was instituted in the year 2012, we are
sure that the learned Sub Judge will make every endeavour to
dispose of the same at the earliest.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
sv JUDGE
