N. Balasubramanian vs N. Kavitha
2021 Latest Caselaw 2083 Mad

                                                                           CRP(MD).No.2531 of 2012

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 01.02.2021

                                                     CORAM :

                            THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                         CRP(MD).No.2531 of 2012 and
                                           M.P(MD).No. 1 of 2012


                   N. Balasubramanian                                .. Petitioner / plaintiff

                                                         Vs.

                   1.N. Kavitha
                   2.Executive Officer,
                   Arulmigu Veeramakaliamman Kovil,
                   Aranthangi,
                   Aranthangi Taluk,
                   Pudukkottai Disstrict.                         ... Respondents / Defendants



                   Prayer:      Civil Revision Petition filed under Article 227 of the
                   Constitution of India against the fair and decreetal order, dated 19.07.2002
                   made in I.A.No.142 of 2012 in O.S.No.125 of 2003 on the file of the Sub
                   Court, Pudukkottai.


                                For Petitioner           : Mr.P. Thiagarajan
                                For R1                   : Mr. Jameel Mohammed
                                                           for Mr.K. Balasundharam
                                For R2                   : Mr. G. Mathavan



                     1/6
http://www.judis.nic.in
                                                                            CRP(MD).No.2531 of 2012

                                                 ORDER

This revision is challenging the order of the Trial Court

dismissing the application in I.A.No.142 of 2012 in O.S.No.125 of 2003,

filed by the revision petitioner / plaintiff seeking leave to amend the plaint

to include the prayer for refund of advance in the suit for specific

performance.

2. The plaintiff filed a suit for specific performance of the

agreement, dated 04.10.2001. In the Written Statement the defendants have

set up title in a temple. The defendants filed an application seeking to

implead the temple to the suit. The said application was allowed by the

trial Court and the same was challenged by way of revision by the

petitioner / plaintiff, the said revision came to be dismissed on 22.02.2011.

After dismissal of the revision, the plaintiff came up with the instant

application seeking to introduce / include the prayer for refund of advance.

This was resisted on the ground that the application is barred by limitation.

The learned trial Judge relied upon the Judgment of this Court reported in

2013(6) CTC 801 (S.Manoharan Vs. Karunamurthy), dismissed the

application as the prayer for refund of advance is barred by limitation.

http://www.judis.nic.in CRP(MD).No.2531 of 2012

Aggrieved, the plaintiff has come up with the revision.

3. I have heard Mr.P. Thiagarajan, learned counsel appearing

for the petitioner and Mr. Jameel Mohammed learned counsel appearing

for the first respondent and Mr.G.Mathavan, learned counsel appearing for

second respondent.

4. Mr. Thiagarajan, learned counsel appearing for the

petitioner would contend that the Judgment reported in 2013(6) CTC 801

(S.Manoharan Vs. Karunamurthy), will not apply to the facts of case

since the relief of refund of advance was sought for in the said case after

dismissal of the suit, in the appellate stage. While dealing with such

application, this Court held that the limitation would be three years from

the date on which the suit was dismissed by the trial Court. In the case on

hand, the suit is still pending.

5. Section 22 of the Specific Relief Act, enables the plaintiff

to seek alternative relief of refund of advance at any any stage of the

proceeding, the Hon'ble Supreme Court in Babu Lal Vs. M/s. Hazari Lal

http://www.judis.nic.in CRP(MD).No.2531 of 2012

Kishori lal reported in AIR 1982 SC 818 has held that the relief of refund

of advance could be sought for even after the disposal of the suit at the

time of execution. Therefore, there is no question of relief being barred by

limitation during the pendency of the suit. Even otherwise since the

charge as created over the property for the value of the advance amount,

the period of limitation for seeking the refund of advance would be 12

years and not 3 years.

6. Mr. Thiagarajan, learned counsel appearing for the

petitioner relied up on the decision Division Bench of this Court, dated

19.12.1999 made in the case of Suryakala Vs. Prema Naidu, wherein, the

Division Bench has pointed out that the alternative relief of refund of

advance could be at any stage of the proceeding. If it is sought for before

the disposal of the suit, there is no question of the same being barred by

limitation.

7. In view of the above, the order of the trial Court is set aside

and I.A.No.142 of 2012 in O.S.No.125 of 2003 on the file of the Sub

Court, Pudukkottai, stands allowed.

http://www.judis.nic.in CRP(MD).No.2531 of 2012

8. Accordingly, this Civil Revision Petition is allowed. No

costs. Consequently, the connected Miscellaneous Petition is closed.

9. Now, it is informed that the suit has been transferred to the

Sub Court, Aranthangi, and re-numbered as O.S.No. 4 of 2017.

10. Considering the fact that the suit is of the year 2003 and

that the suit is one for specific performance, the Sub Court, Aranthangi is

directed to dispose of the suit within a period of six months from the date

of resumption of regular Courts for physical hearing.

01.02.2021 Index : yes/no Internet : yes/no trp

To

1. The Sub Court, Pudukkottai.

2. The Sub Court, Aranthangi

http://www.judis.nic.in CRP(MD).No.2531 of 2012

R.SUBRAMANIAN,J.,

trp

CRP(MD).No.2531 of 2012 and M.P(MD).No. 1 of 2012

01.02.2021

http://www.judis.nic.in