Madras High Court
John Rajkumar vs Thanraj on 18 March, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.03.2025
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(PD)(MD)Nos.463 & 464 of 2024
and
C.M.P(MD)Nos.2330 & 2331 of 2024
C.R.P.(PD)(MD)No.463 of 2024
John Selvaraj (died)
John Jayakumar (died)
1.John Rajkumar
2.John Vethamuthu
3.Edison
4.Christober
5.Kirubakaran
...Petitioners/Respondents 3,4,6,11,12/
Defendants 3,4,6,11,12
Vs.
1.Thanraj ...Respondent/Petitioner/Plaintiff
2.Sankareswari
3.Esthar Thayammal
4.Victoriya
5.Lilli
6.Arulmani ...Respondents 2 to 6/Respondents 5,7 to 10/
Defendants 5,7 to 10
(Respondents 2 to 6 are ex-parte in main suit and not
necessary to issue notice to respondent 2 to 6)
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PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India, as against fair and decreetal order of the learned Additional District and
Sessions Judge, Srivilliputtur, dated 20-12-2023 in I.A.No.5 of 2023 in O.S.No.
139 of 2010.
For Petitioners : Mr.V.R.Shanmuganathan
For Respondents : M/s.S.Mamtha for R1
No appearance for R2 to R6
*****
C.R.P.(PD)(MD)No.464 of 2024
John Selvaraj (died)
John Jayakumar (died)
1.John Rajkumar
2.John Vethamuthu
3.Edison
4.Christober
5.Kirubakaran
...Petitioners/Respondents 3,4,6,11,12/
Defendants 3,4,6,11,12
Vs.
1.Thanraj ...Respondent/Petitioner/Plaintiff
2.Sankareswari
3.Esthar Thayammal
4.Victoriya
5.Lilli
6.Arulmani ...Respondents 2 to 6/Respondents 5,7 to 10/
Defendants 5,7 to 10
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PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India, as against fair and decreetal order of the learned Additional District and
Sessions Judge, Srivilliputtur, dated 12.04.2023 in I.A.No.3 of 2022 in O.S.No.
139 of 2010.
For Petitioners : Mr.V.R.Shanmuganathan
For Respondents : M/s.S.Mamtha for R1
No appearance for R2 to R6
*****
COMMON ORDER
The defendants in O.S.No.139 of 2010, on the file of the Additional
District and Sessions Court, Srivilliputhur, have filed the present revision
petitions, challenging the orders passed in I.A.No.5 of 2023 and I.A.No.3 of
2022.
2.A perusal of the records reveal that the respondents in the revision
petition had filed the above said suit for the relief of specific performance of the
sale agreement, dated 16.12.2009. The plaintiff had filed I.A.No.682 of 2012
under Order 6 Rule 17 of C.P.C. to incorporate the alternative relief of refund of
the advance amount of Rs.5,61,000/-.
3.The plaintiff had filed I.A.No.3 of 2022, to amend the plaint to enhance
the advance amount from Rs.5,00,000/- to Rs.18,00,000/- This application was
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filed when P.W.1 was being cross examined and also to amend the body of the
plaint to indicate that on various dates between 27.09.2010 and 20.06.2011, the
plaintiff has paid the advance amount to the defendants. This application was
resisted by the defendants on the ground that the enhancement of the refund of
advance amount introduced by way of amendment is barred by limitation. It was
further contended that the amendment application has been filed after the trial
has begun and hit by Proviso order 6 Rule 17 of C.P.C. It was further contended
by the defendants that these documents were available in the hands of the
plaintiff even before filing of the suit and therefore, no proper reason has been
assigned to incorporate this amendment at the present stage.
4.The trial Court after considering the submissions made on either side
has proceeded to allow this application. Challenging the same, C.R.P.(MD)No.
464 of 2024 has been filed.
5.The plaintiff has also filed I.A.No.5 of 2023, seeking permission of the
Court to receive the documents reflecting the payment of advance amount
between 27.09.2010 and 20.06.2011. This application has also been allowed by
the trial Court. According to the learned Counsel appearing for the revision
petitioners, unless the plaintiff has properly explained the reasons for not
enclosing these documents along with the plaint, the trial Court ought not to
have allowed the application. It was further contended that this reception of the
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document is based upon the amendment to the plaint prayer to enhance the
refund of advance amount of Rs.5,00,000/- to Rs.18,00,000/-. When the
amendment is barred by limitation, the documents cannot be received.
6.I have considered the submissions made on either side and perused the
materials available on record.
7.As far as the plea relating to limitation is concerned, as per Section
55(6)(b) of the Transfer of Property Act, whenever the advance amount is paid,
pursuant to the sale agreement, a statutory charge is created over the property.
In such circumstances, the limitation for seeking refund of the advance amount
is not governed by the Article 54 of the Limitation Act, but is it governed by the
Article 62 of the Limitation Act.
8.This Court in a judgment reported in 2016 (6) CTC 740, has
categorically held that the alternative relief for refund of advance amount in a
suit for specific performance is governed only Article by 62 of the Limitation
Act. In such circumstances, the trial Court has rightly allowed the application
seeking amendment of the plaint to enhance the refund of advance amount from
Rs.5,00,000/- to Rs.18,00,000/-. However, it is always open to the defendants to
raise the plea of limitation during trial.
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9.As far as plea relating to reception of the documents is concerned, the
present application has been filed only for reception of the documents. The
relevancy and admissibility of the documents can be objected to, by the
defendants when an attempt is being made to mark those documents.
10.In view of the above said deliberations, both the revision petitions
stand dismissed. No costs. Consequently, connected miscellaneous petitions are
also closed.
18.03.2025
Internet:Yes/No
Index:Yes/No
RJR
To
The learned Additional District and Sessions Judge, Srivilliputtur.
Copy to:-
The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
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R.VIJAYAKUMAR, J.
RJR
C.R.P.(PD)(MD)Nos.463 & 464 of 2024
18.03.2025
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