Ponni vs Jaya
2023 Latest Caselaw 12729 Mad

                                                                     C.R.P.No.4086 of 2015



                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                            Dated: 19.09.2023

                                                CORAM

                     THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN

                                       C.R.P.No.4086 of 2015
                                                and
                                          M.P.No.1 of 2015

           Ponni
                               ...Petitioner/Petitioner/Appellant.

                                                   Vs.


           1.Jaya
           2.Nirmala
           3.Malarkodi
           4.Chitra
           5.Kaliammal
           6.Ramesh (Died)
           7.Suresh
           8.Indhira
           9.Lakshmi
           10.Mahalakshmi
           11.Minor Sivasankari
           12.Minor Yuvanesh
           13.Minor Durkesh
                           ...Respondents/Respondents/Respondents.

           [RR11 to 13, Minor Rep.by R-10, Panruti Cuddalore District, Respondent 6
           died. Respondents 10 to 13 brought on record as Lrs of the deceased R6
           viz., Ramesh vide court order dated 13.09.2023 made in C.M.P.No.15008
           and 150121 of 2023 in C.R.P.No.4086 of 2015].

           Prayer: Civil Revision Petition filed under Article 227 of the Constitution

           of India against the order and decree dated 22.06.2015 made in

           I.A.No.10 of 2015 on A.S.No.73 of 2013, on the file of the Principal

               District Judge, Cuddalore.
https://www.mhc.tn.gov.in/judis
                                                                              C.R.P.No.4086 of 2015


                                     For Petitioner    :     Mr.V.Jayaprakash

                                     For Respondents :
                                     (RR7 to 13)     :       Mr.Sathyaraj
                                        (R1)         :       Died
                                     (RR2 and 5)     :       Not Ready in Notice
                                     (R3)            :       Refused

                                                      ORDER

This Civil Revision Petition arises against the dismissal of an

application filed for amendment of plaint. O.S.No.77 of 2005 on the file of

Sub-Court, Panruti is a suit for specific performance. The siad suit was

dismissed in and by way of a judgment dated 22.11.2013.

2.Aggrieved over the same, the petitioner preferred A.S.No.73 of

2010. At the time of moving the appeal it was noticed that alternative

relief of refund of advance amount has not been sought for. Therefore, an

application was moved to amend the plaint at the appellate stage seeking

to add the said relief.

3.The Learned Appellate Judge dismissed the application stating

that such an amendment would change the character of the suit.

Challenging the same, the present civil revision petitioner is filed.

4.Heard Mr.V.Jayaprakash, learned Counsel for the petitioner and

Mr.Sathyaraj, learned Counsel for respondent Nos.7 to 13.

5.In a suit for specific performance, the Court shall not grant refund

of advance amount until and unless it is specifically sought for. This is as

per Section 22 of the Specific Relief Act. There are two provisos appended

to Section 22. The second proviso appended to Section 22 makes it very https://www.mhc.tn.gov.in/judis C.R.P.No.4086 of 2015

clear that the plaintiff has a right to amend the plaint to claim refund of

advance amount at any stage of the proceedings. This power to be

exercised notwithstanding anything contained in CPC. I am unable to

agree with the reason given by the learned first Appellate Judge that by

seeking for refund of advance amount, the character of the suit will

change. The suit continues to be one for specific performance and the

relief sought for through the amendment is only an alternative relief. The

statute being clear, the Learned Lower Appellate Judge fell in error in

dismissing the application. Therefore, applying Section 22, I.A.No.10 of

2014 will stand allowed.

6.The plaintiff/appellant is permitted to amend the plaint. On such

amendment, the respondent will be entitled to file his additional written

statement confining his objection, with respect to the amended relief,

which is newly sought for.

7.This civil revision petition stands allowed. No costs. Connected

Miscellaneous Petition is closed.

                                                                                 19.09.2023

                nst
                Index               : Yes/No
                Speaking Order : Yes/No
                Neutral Citations : Yes/No
                To:
                The
                Principal District Judge,
                Cuddalore.

https://www.mhc.tn.gov.in/judis
                                           C.R.P.No.4086 of 2015




                                  V. LAKSHMINARAYANAN.J,

                                                           nst




                                     C.R.P.No.4086 of 2015
                                                       and
                                          M.P.No.1 of 2015




                                                19.09.2023


https://www.mhc.tn.gov.in/judis