1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 202 of 2008 1 - Bhagwat Mishra, 55 Years S/o Sharda Prasad Mishra R/o Tikrapara, C.G. Nagar, Raipur By Attorney Omprakash Tiwari, 38 Yrs., S/o R.N. Tiwari, R/o Kachna Road Khamhardih, Raipur. ... Appellant versus 1 – Punarath, 57 years, S/o Dhaluram Sahu 2- Smt. Omkumari, 55 yearsm, D/o Dhaluram Sahu, 1 & 2 are R/o village Choraha, PO Kumhari, Teh. Ahivara, Durg. 3- Bhanubai, 47 years, D/o Dhaluram Sahu, R/o MIG 659, Deendayal Upadhyay Nagar, Daganiya, Raipur. 4- State of Chhattisgarh By Collector, Raipur. 5- Gurudip Singh, 46 years, S/o Gurucharan Singh, R/o Gurugovind Nagar, Raipur. ... Respondent(s) For Appellant : Shri Sourabh Sharma, Advocate. For State : Shri Kalpesh Ruparel, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 04.11. 202 5 1. The instant appeal has been filed by the appellant against the judgment and decree dated 06.05.2008 passed by the 9th Additional District Judge (FTC) Raipur in Civil Suit No.8-A/2005 whereby the Civil Suit filed by the appellant/plaintiff for specific performance of the contract dated 24.12.1998 has been dismissed. 2 2. For the sake of convenience, the status of the parties are being taken as per their status in the Civil Suit. 3. Brief facts of the case are that, the defendants No.1 to 4 were owned the land bearing Khasra No.167/5 and 167/6, total Area 1.169 Hect. situated at village Kachna, PH No.110, RI Circle Raipur, Tehsil and District Raipur. An agreement to sale was executed by them in favour of plaintiff on 24.12.1998 for a total consideration of Rs.91,000/- and obtained an amount of Rs.12,100/- as advance. Agreement was also executed on 24.12.1998 by the defendant No.1 for himself and as the power of attorney holder of defendants No.2 to 4. It was the condition of the agreement that plaintiff may execute the sale deed on his own name or in the name of any other person on his instance either as one time measure or in its pieces. It was also mentioned that possession of suit land was delivered to the plaintiff on the date of execution of the agreement. Even after repeated request made by the plaintiff, the defendants did not execute the sale deed and were evading for the same. Up till 03.11.2001 the defendants No.1 to 4 obtained Rs.42,000/- on various installments out of total sale consideration and when the plaintiff requested for registration of the sale deed, the defendant No.4 executed the sale deed of his 1/4th part of the suit land on the instance of the plaintiff in the name of Smt. Pratibha Tiwari on 14.12.2001. At the time or registration of sale deed on 14.12.2001, Rs.22,750/- was also taken by the defendant No.4 from the plaintiff and thus the defendants received total Rs.64,750/- out of total sale consideration of Rs.91,000/-. In between that period, the plaintiff came to know that the defendants are trying to alienate the suit land to any other person and then on 03.11.2001 he published a public notice in daily newspaper and on 3 03.11.2001 itself he issued a legal notice to the defendants through his counsel and requested to get the sale deed registered in his name, but the defendants have not executed the sale deed and then Civil Suit was filed for specific performance of the contract on 21.12.2001. After filing Civil Suit, the plaintiff came to know that on 23.06.2001 the defendants No.1 to 4 have executed 0.122 Hect. of suit land to other person and on 20.03.2003 one part of suit land was sold to defendant No.6-Gurdeep Singh, the plaintiff also claimed for declaring the said sale deed as null and void and not binding upon him. 4. The defendants No.1 to 4 field their written statement, denied the plaint averment and submitted that on 13.11.2001 they have denied execution of any agreement with the plaintiff and have published it in daily newspaper. Legal notice of plaintiff was also replied by them through their counsel. Out of total suit land, 0.10 Dismil land was sold on 28.05.2000 and 0.122 Hect. of land was sold on 23.06.2001 to Gurdeep Singh. On 01.01.2008 there was a settlement between the plaintiff and defendants No.1 to 4 and in pursuance thereof they sold 0.700 Hect. of land to Bali Ram Dharmani through registered sale deed dated 15.03.2008 and some of the land was sold to wife of power of attorney holder of the plaintiff namely Smt. Pratibha Tiwari. Therefore, the plaintiff is not entitled for any relief. 5. The defendant No.6 also filed his written statement separately and submitted that on 23.06.2001 he purchased 0.122 Hect. of land out of the suit land from defendants No.1 to 4. There was a settlement between the plaintiff and defendants No.1 to 4 on 01.01.2008 and in pursuance thereof 0.700 Hect. of land was sold to Bali Ram Dharmani. He denied about knowledge of any agreement between the plaintiff 4 and defendants No.1 to 4, however, he would submit that on 23.06.2001 he purchased the land and paid sale consideration to defendants No.1 to 4. Therefore, he being bonafide purchaser, his sale deed cannot be declared as null and void. 6. On the basis of pleadings made by the parties, the trial court framed the following issues : dzekad okn fo"k; fu"d"kZ 1 D;k fnukad 24-12-1998 dks oknh ds ikl oknxzLr Hkwfe dh fodz; djus gsrq izfroknhx.k us :-91000@&essa lkSnk iDdk dj :-12]100@&crkSj c;kuk izkIr fd;k FkkA gkW 2 D;k fnukad 24-12-1998 dks okn ds i{k esa izfroknhx.k us fcdzh bdjkjukek fu"ikfnr fd;k FkkA gkW 3 D;k oknh ls izfroknhx.k us fodz; izfrQy jkf’k esa ls :-64]750@&fofHkUUk frfFk;kW ij izkIr fd;kA 34]850@&:- izkIr fd;k tkuk izekf.kr 4 D;k oknh lafonk ds vuqikyu esa izfroknhx.k ls oknxzLr Hkwfe dk iath;u Lo;a ds i{k esa djkus dk vf/kdkjh gSaA Ukgh 5 D;k izfroknh dzekad&6 ln~Hkkoukiw.kZ dzsrk gSA gkW 6 D;k okn fodz; i= fnukad 23-06-2001 'kwU; ,oa voS/k ?kksf"kr djkus dk vf/kdkjh gSA Ukgh 7 Lkgk;rk ,oa O;; Okknh dk okn fujLr fd;k x;kA 7. After considering the evidence available on record, the trial court comes into conclusion that agreement dated 24.12.1998 was executed by the defendants No.1 to 4 in favour of the plaintiff for total sale consideration of Rs.91,000/-, out of which Rs.12,100/- was obtained by them as advance, however, the claim of plaintiff that defendants No.1 to 4 have obtained total Rs.64,750/- out of total sale consideration of Rs.91,000/- is not found proved and it is only found that the defendants No.1 to 4 have obtained only Rs.34,850/- from the plaintiff towards sale consideration. It has also been held by the trial court that 0.20 5 Hect. of suit land was already sold in favour of wife of power of attorney holder of plaintiff, 0.122 Hect. of land was sold to defendant No.6-Gurdeep Singh and under the settlement dated 01.01.2008 between the parties, 0.808 Hect. of land was sold to Bali Ram Dharmani, and thus, suit land was already sold to respective purchasers and no land was remaining for its alienation, the decree of specific performance of contract cannot be passed. 8. While deciding issues No.5&6 it has also been held that sale deed dated 23.06.2001 executed in favour of defendant No.6 is a valid sale deed and he is a bonafide purchaser. This judgment and decree is under challenge in the instant First Appeal. 9. Learned counsel for the appellant would submit that the trial court has erred in considering that defendants No.1 to 4 have not received total sale consideration of Rs.64,750/- by saying that no document has been filed by the plaintiff to that respect whereas, document Ex.P/6 is proved by the plaintiff which is an acknowledgment of the defendants No.1 to 4 that till 16.12.2001 total amount of Rs.42,100/- was received by them out of total sale consideration and Rs.22,750/- have also been received by the defendants No.1 to 4 at the time of registration of sale deed in the name of wife of the power of attorney holder of plaintiff. The document Ex.P/6 has not been taken into consideration by the trial court. He would further submit that the defendant No.6 was not the bonafide purchaser of the suit property as after execution of the agreement with the plaintiff they have sold the part of suit land to the defendant No.6. The agreement dated 24.12.1998 was found proved and therefore the trial court ought to have decided the issues No.5 & 6 in favour of the plaintiff holding the sale deed dated 23.06.2001 as not 6 bonafide transaction in favour of defendant No.6 and such sale deed is not binding upon the plaintiff. 10. The counsel for the appellant would further submit that even if trial court comes to conclusion that decree for specific performance of contract could not be passed in favour of the plaintiff, they should have passed refund of advance amount of the plaintiff. There should be no unjust enrichment in favour of the defendants No.1 to 4. The defendants No.1 to 4 are responsible for not registering the sale deed and they have failed to perform their part of contract in favour of plaintiff. Therefore, atleast refund of the advance amount should have been ordered by the trial court even if no claim for such refund was made in the plaint. It is also submitted by him that one of the ground for declaring the sale deed dated 23.06.2001 null and void and not binding upon him is the fact that the plaintiff has not properly valued the suit with respect to prayer made by him. Since the plaintiff was not party to sale deed dated 23.06.2001, he was not required to pay ad-valorem court fee for the relief claimed with respect to said sale deed and therefore the findings recorded by the trial court are perverse under the law as well as under the facts of the case and the impugned judgment and decree is liable to be set aside. 11. To prove the claim of plaintiff, he examined Om Prakash Tiwari, PW-1 who is the power of attorney holder of plaintiff Bhagwat Mishra and PW-2, Sanjay Sharma. The defendant No.1-Punarath Sahu though has filed his affidavit under Order 18 Rule 4 CPC as the examination in chief, however, later on he remained exparte and his cross examination could not be done. PW-6, Gurdeep Singh has been examined as DW-1. 7 12. In the case, the plaintiff is claiming that an agreement was executed between him and the defendants No.1 to 4 on 24.12.1998 for total sale consideration of Rs.91,000/-, out of which Rs.12,100/- was paid at the time of execution of agreement and subsequent to that on various installments they received total Rs.64,750/-, but they failed to execute the sale deed in favour of the plaintiff and ultimately he filed a Civil Suit on 21.12.2001 for specific performance of the contract dated 24.12.1998. The burden to proof the execution of the agreement as well as readiness and willingness, payment of sale consideration, payment of advance amount towards sale consideration is upon the plaintiff. The plaintiff himself neither executed the agreement nor examined himself as witness to the case if the power of attorney holder Om Prakash Tiwari has executed the agreement, received the amount and examined as PW-1 in the case. PW-1, Om Praksh Tiwari has filed his power of attorney Ex.P/1 in support of his claim that he is the power of attorney holder of Bhagwat Mishra and during his evidence he proved the same also. The power of attorney Ex.P/1 executed by Bhagwat Mishra in favour of Om Prkash Tiwari has not been challenged by the defendants No.1 to 4. Although at the time of recording evidence and exhibition of that document no objection was raised by the defendants. 13. PW-1, Om Prakash Tiwari have stated in his evidence that on 24.12.1998 the agreement was executed by defendants No.1 to 4 with Bhagwat Mishra and an amount of Rs.12,100/- was paid as advance amount out of total sale consideration. The defendant No.1 signed the agreement as and on behalf of defendants No.2 to 4 as their power of attorney holder. It was the condition in the agreement that on the 8 instance of the plaintiff the registration of sale deed may got executed in the name of any other person either in one time measure or in pieces. Though the agreement dated 24.12.1998 was exhibited as P/2, but an objection has been raised by the defendants. The objection was decided on 25.10.2007 and it was considered as an agreement and not the conveyance. It transpires from perusal of agreement that delivery of possession of the suit land was also embodied in the said agreement for that vide order dated 25.10.2007 the trial court has decided that it was an agreement and not the conveyance as provided under Article-23 of Schedule-I of The Indian Stamp Act, 1899. 14. It further transpires that there is no power of attorney filed either by the plaintiff or by the defendants No.1 to 4 that defendants No.2 to 4 have executed any power of attorney in favour of defendant No.1. The defendants No.1 to 4 in their written statement denied execution of any agreement in favour of plaintiff, however, the subsequent sale deed dated 23.06.2001 executed in favour of Gurdeep Singh, PW-6, has been executed by defendants No.1 to 4 through their power of attorney Punarath Lal, Defendant No.1. Further, this sale deed has been admitted by the defendants No.2 to 4 that defendant No.1 Punarath Lal was their power of attorney, and therefore the trial court found the issue No.1 proved that on 24.12.1998 the defendants had executed agreement to sale in favour of plaintiff on 24.12.1998 and obtained an advance amount of Rs.12,100/- out of total sale consideration of Rs.91,000/-. The defendants No.1 to 4 have not examined themselves to deny the fact that they have not executed any agreement through their power of attorney Punarath Sahu, defendant No.1. Even Punarath Sahu, Defendant No.1 has not been produced himself for his cross 9 examination and remained exparte after filing his affidavit under Order 18 Rule 4 CPC. 15. While Considering issue No.3, the trial court comes into conclusion that the defendants No.1 to 4 have obtained Rs.34,850/- towards total sale consideration. From the agreement executed between the plaintiff and defendants No.1 to 4 (Ex.P/2), Rs. 12,100/-was paid as advance amount and Rs.22,750/- was paid to defendants No.1 to 4 towards sale consideration of 0.202 Hect. of land to the wife of power of attorney holder of the plaintiff namely Smt. Pratibha Tiwari. Since Rs.22,750/- was paid as sale consideration of the part of suit land and appellant pleaded in his plaint also that the said amount was paid to the defendants No.1 to 4 towards sale consideration of the sale deed executed in favour of the Smt. Pratibha Tiwari on the instance of plaintiff and thus he cannot claim the said amount paid towards sale agreement to defendants No.1 to 4. 16. The claim of plaintiff is that he served legal notice to the defendants No.1 to 4 on 03.11.2001 and published a notice in the daily newspaper on 04.11.2001 but the defendants No.1 to 4 have not executed the sale deed pursuant to sale agreement and therefore a decree may be passed in their favour for specific performance of the contract. The plaintiff has produced a copy of notice dated 03.11.2001 as Ex.P/3. It transpires from the notice dated 03.11.2001 that the plaintiff has paid Rs.30,000/-more towards sale consideration up till the date when notice was served upon them and on 16.12.2001 the defendants have executed an acknowledgment in furtherance of the sale agreement dated 24.12.1998 which is marked as Ex.P/6. From perusal of Ex.P/6 it transpires that it was signed by the defendant No.1 for himself and as 10 the power of attorney holder of other defendants No.2 to 4. However, the fact remains that no power of attorney has been produced by the defendant No.1. Further, in the document Ex.P/6 which was allegedly executed on 16.12.2001 by the defendants No.1 to 4 it is acknowledged that due to personal difficulty of defendants No.1 to 4, the sale deed could not be executed and they are ready and willing to execute the sale deed in favour of plaintiff as per the whims and choice of the plaintiff. 17. It is notable here that up to 16.12.2001 a sale deed of 0.202 Hect. of land was already executed in the name of wife of power of attorney holder of plaintiff on 14.12.2001 but the said transaction have not been disclosed in the document Ex.P/6 which was executed after execution of the sale deed Ex.P/7. Another fact is notable here that on 16.12.2001 the defendants have allegedly executed the acknowledgment for registration of the sale deed in favour of the plaintiff on the whims of the plaintiff, however, within five days of the execution of said acknowledgment Ex.P/6, the suit for specific performance of the contract was filed on 21.12.2001. When the defendants No.1 to 4 were ready and willing to perform their part of contract as per the document Ex.P/6 then what was necessity to file a suit for specific performance of the contract within a short span of only five days which have not been explained by the plaintiff as to what transpires in between that period. 18. Another agreement Ex.D/1 is filed in the case which was also allegedly executed on 01.01.2008 by the defendants No.1 to 4 in favour of plaintiff. In this agreement it was admitted that on 24.12.1998 an agreement to sale was executed between them on 23.06.2001, 0.122 11 Hect. of land was sold to one Gurdeep Singh for which another Civil Suit No.8-A/2005 was filed by them, in between that period 0.10 Acre of land was sold to some other person and 0.202 Hect. of land was sold to Smt. Pratibha Tiwari and only 0.808 Hect. of land is remaining out of total suit land. One of the land owner Sevati Bai have already died and the plaintiff has relinquished his right over the suit property after obtaining rupees Eight Lakhs, out of which he received rupees Four Lakhs on 01.01.2008 and defendants No.1 to 3 will pay the remaining amount of rupees Four Lakhs up to 20.01.2008. Though the plaintiff has not been examined in the case, however, this agreement has been admitted by his witness Sanjay Sharma, PW2 that this agreement Ex.D/1 was executed by the power of attorney holder of the plaintiff. It is also one of the issue that whether the sale deed executed in favour of defendants No.6 on 23.06.2001 was a bonafide transaction or not?. While deciding the issue No.6, the trial court has considered the document Ex.D/1 which was executed on 01.01.2008 and admitted by the plaintiff himself through his witness PW-2. It has also been mentioned in the document Ex.D/1 that since the suit land have already been sold to various persons and the plaintiff was also agreed to waive his claim in view of agreement executed on 01.01.2008 Ex.D/1 as also the sale deed executed in favour of defendant No.6 was also acknowledged by the plaintiff, the sale deed of defendant No.6 cannot be held to be void transaction and found that it was a sale transaction executed in his favour legally and it was a bonafide transaction and defendant No.6 was the bonafide purchaser. 19. Since the plaintiff has failed to prove readiness and willingness to perform his part of the contract, he executed the agreement on 12 01.01.2008 with respect to waiving of his claim over the suit property after obtaining certain amount from the defendants No.1 to 4, some part of the land was already sold to the wife of power of attorney holder of plaintiff and some of the land was sold to other persons which has been recognized by the plaintiff, the decree for specific performance could not be passed in favour of the plaintiff, which the trial court has rightly considered in its judgment and abstained themselves from exercising the jurisdiction to pass a decree for specific performance of the contract, in which, this court does not find any illegality. 20. The next submission made by the counsel for the appellant is that there should be no unjust enrichment and the amount paid by the plaintiff towards advance amount shall be returned to him along with proper interest. 21. The unjust enrichment has been discussed by the Supreme Court in the matter of Indian Council for Enviro-Legal Action Vs. Union of India & Others, 2011(8)SCC 161, paragraph 152 to 156 of which reads as under: “152.`Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA) 154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus : "... .(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or 13 some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution." 155. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:- "…..It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires." 156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment.” 22. When the facts of present case is examined in view of law laid down by the Supreme Court in the aforesaid case, this court finds that through the agreement dated 01.01.2008 Ex.D/1 the plaintiff have waived his right over the suit property after obtaining certain amount from defendants No.1 to 3 and it is nowhere mentioned in the said deed Ex.D/1 that plaintiff would also entitle for refund of his advance amount which was allegedly paid towards sale agreement dated 24.12.1998 or acknowledgment of the agreement allegedly executed on 16.12.2001 Ex.P/6. Further, there is no prayer made by the plaintiff in his plaint with respect to refund of advance amount paid to defendants No.1 to 4 pursuant to sale agreement. 23. Section 22 (2) of the Specific Relief Act, 1963 provides that no relief under Clause-a or Clause-b of Sub-section (1) shall be granted by the court unless it has been specifically claimed. Although, the proviso has also been appended that at any stage the plaintiff who has not claimed any such relief for refund of advance amount in the plaint, he may 14 amend his his plaint for the claim of refund of his advance amount. However, no such application has been made in the present case for amending the plaint for refund of his advance amount. 24. In the matter of K.R. Suresh Vs. R. Poornima, 2025 SCC OnLine SC 1014, the Supreme Court has held that if there is no relief claimed by the plaintiff in his plaint for refund of advance amount, no relief can be granted to the plaintiff for refund of the advance amount if he fails to prove his case for specific performance of the contract. In paragraph 53 to 64 it was held as under: 53 . The High Court denied the relief of refund of advance money to the Appellant herein, having regard of the fact that the Appellant had not sought for an alternative prayer for refund of the advance sale consideration in the suit as mandated by Section 22(2) of the 1963 Act. 54. Before we proceed to answer the question formulated by us in para 27, we deem it necessary to examine Section 22 of the 1963 Act. It reads thus: 22. Power to grant relief for possession, partition, refund of earnest money, etc.- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-(a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or [made by] him, in case his claim for specific performance is refused. (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: Provident 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) The power of the court to grant relief under Clause (b) of Sub- section (1) shall be without prejudice to its powers to award compensation Under Section 21. 55 . Sir Frederick Pollock, 3rd Baronet, in Pollock & Mulla: The Indian Contract and Specific Relief Acts, 16th Edn., has discussed the object and scope of Section 22 of the 1963 Act and the alternative relief of refund of earnest money deposit, as follows: [s 22.6.2] Refund of Earnest Money or Deposit [...] The relief of refunding of earnest money or deposit cannot be granted unless specifically claimed. Further such a plea cannot be considered in a second appeal, particularly when the issue of execution of the agreement has been held as not having been proved. Refund of amounts paid may also be ordered when specific performance has been refused on the ground of unexplained delay by the Plaintiff in approaching the Court. It is also open to a Plaintiff to give up his prayer for specific performance at the hearing, or before 15 the hearing, and ask for return of the earnest money or deposit. Where a Clause entitling forfeiture of earnest money is contained in the agreement, it would not be refundable to the Plaintiff who has failed to perform his part of the contract. Forfeiture of earnest money should not be allowed where the vendor has not suffered any loss, but has actually gained, viz., on account of frustration of contract. Where the value of land had considerably increased after the sale agreement, the Court, while refusing a decree for specific performance, ordered a refund of the earnest amount on the ground that the Plaintiff did not suffer any loss, but had gained due to the default of the Plaintiff. xx xx xx [s 22.7] Pleadings and Amendment to Pleadings Section 22 enacts a Rule of pleading. It enables the Plaintiff to ask for possession in the suit for specific performance and empowers the Court to provide, in the decree itself, that upon payment by the Plaintiff of the consideration money within the given time, the Defendant should execute the deed and put the Plaintiff in possession. If the said relief is not claimed in the plaint, the Court shall permit the Plaintiff at any stage of the proceedings, including execution proceedings, to amend the plaint on such terms as it deems proper. The purpose is to avoid multiplicity of suits. This provision overrides the provisions of Order VI, Rule 17 of Code of Civil Procedure, 1908. Omission to seek alternative relief is not a ground to reject the plaint. A Plaintiff may amend the plaint to include a claim for refund to advance money paid to the Defendant. The amendment may be made at any stage of the proceeding, including the appellate stage. The option vests with the Plaintiff to claim alternative relief, and unless he claims such a relief, the Court is not empowered to grant it. (Emphasis supplied) 56. The expression "at any stage of the proceeding" has been judicially interpreted to include the appellate stage as well, as affirmed by a catena of High Court decisions. This interpretation entails that that an amendment of the plaint to incorporate a prayer for the alternative relief of refund of earnest money may be sought even during the first appeal from the original decree passed in a suit for specific performance. The non obstante Clause attached to Section 22(1) of the 1963 Act grants it an overriding effect, thereby excluding the operation of the Code of Civil Procedure, 1908. Further, the use of the word "shall" in the proviso to Section 22(2) imposes a mandate upon the court to allow the amendment of plaint, as sought by the party, at any stage. [See: Sahida Bibi v. Sk. Golam Muhammad, MANU/WB/0046/1983; Tarit Bhowmik v. Mukul Day, MANU/SCOR/38495/2014 : 2014 SCC Cal 5361] 5 7 . In Manickam v. Vasantha, reported in MANU/SC/0789/2022, this Court was dealing with the question of whether the executing court could deliver possession in execution of a decree where no specific prayer for possession had been made in a suit for specific performance. It held that the proviso appended to Sub-section (2) of Section 22 of the 1963, which mandates the Court to allow an amendment of the plaint at any stage of the proceeding to include a claim for such relief under Clause (a) or (b) of Section 22(1), renders the provision directory in nature. The Court opined that Section 22(2) is qualified by the phrase "in an appropriate case", referring to situations where such relief does not necessarily flow from a decree for specific performance of a sale agreement. Accordingly, if such relief under Clause (a) or (b) of Section 22(1) appears as a necessary implication of the decree for specific performance, a specific prayer for claiming such relief would not be required. In light of these principles, 16 this Court held that the relief of possession was inherently included in a decree for specific performance and need not be specifically pleaded. Furthermore, it reiterated that the words "at any stage of the proceeding" have a wide amplitude, encompassing both the appellate stage and execution proceedings. The relevant observations are reproduced hereinbelow: 22. The Bombay High Court in a judgment reported as Lotu Bandu Sonavane v. Pundalik Nimba Koli held that relief of possession is to be claimed "in an appropriate case". It means a case in which the relief does not necessarily flow from the decree for specific performance of the agreement of sale. If such a relief is ancillary to and necessarily flows from a decree for specific performance, then it is not necessary to specifically seek such a relief and the bar of Section 22(2) would not be attracted. If the Defendant is in possession of the property agreed to be sold and the decree directs a specific performance of the agreement of sale, the Defendant is bound to execute the sale deed as per the decree and to put the Plaintiff in possession of the property as contemplated by Section 55(1)(f) of the Transfer of Property Act. In such a case it is not necessary to specifically claim the relief of possession in the suit. xx xx xx 9. The term "proceeding" is a very wide and comprehensive term and it includes execution proceeding also. The expression "at any stage of the proceeding" gives widest permission to the Court to allow amendment at any stage of the proceeding including execution of the decree. The amendment can be allowed even in an appeal arising out of the order passed by the executing Court rejecting the prayer for permission. The proviso recognises the well settled position that the Court passing a decree for specific performance retains control over the subject matter as long as anything remains to be done in the case. xx xx xx 26. The matter can be examined from another angle as well. Section 22(2) of the Act, though is worded in negative language, "no relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the court unless it has been specifically claimed", but the proviso takes out the mandatory nature from the substantive provision of Sub- section (2) when the Plaintiff is allowed to amend the plaint on such terms as may be just for including the plaint for such relief "at any stage of the proceeding". "At any stage of the proceeding" would include the proceeding in suit or in appeal and also in execution. The proviso to Sub-section (2) of Section 22 of the Act contemplates that the Court shall, at any stage of the proceedings, allow the Plaintiff to amend the plaint on such terms as may be just for including a claim for such relief. The said proviso makes the provision directory as no penal consequences follow Under Sub-section (2) of Section 22. [...] xx xx xx 29. To examine whether a provision is directory or mandatory, one of the tests is that the court is required to ascertain the real intention of the legislature by carefully attending to the whole scheme of the statute. Keeping in view the scheme of the statute, we find that Section 22(2) of the Act is only directory and thus, the decree-holder cannot be non-suited for the reason that such relief was not granted in the decree for specific relief. 30. The Defendant in terms of the agreement is bound to handover possession of the land agreed to be sold. The expression "at any stage of proceeding" is wide enough to allow the Plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. This Court in Babu Lal has 17 explained the circumstances where relief of possession may be necessary such as in a suit for partition or in a case of separate possession where the property conveyed is a joint property. In the suit for specific performance, the possession is inherent in such suit, therefore, we find that the decree-holders are in fact entitled to possession in pursuance of the sale deed executed in their favor. (Emphasis supplied) 58. It is thus a settled position of law that the plaint may be amended at any stage of the proceedings to enable the Plaintiff to seek an alternative relief, including that of refund of earnest money, and the courts have been vested with wide judicial discretion to permit such amendments. However, Under Section 22 of the 1963 Act, the courts cannot grant such relief suo moto, since the inclusion of the prayer Clause remains a sine qua non for the grant of such a relief. In other words, when an "appropriate case" exists for seeking the said relief under this provision, it must be specifically sought either in the original plaint or by way of an amendment. This has been emphatically held by this Court in Desh Raj v. Rohtash Singh, reported in MANU/SC/1615/2022 : 2022:INSC:1279 : (2023) 3 SCC 714. The relevant observations are reproduced hereunder: 35. On a plain reading of the above-reproduced provision, we have no reason to doubt that the Plaintiff in his suit for specific performance of a contact is not only entitled to seek specific performance of the contract for the transfer of immovable property but he can also seek alternative relief(s) including the refund of any earnest money, provided that such a relief has been specifically incorporated in the plaint. The court, however, has been vested with wide judicial discretion to permit the Plaintiff to amend the plaint even at a later stage of the proceedings and seek the alternative relief of refund of the earnest money. The litmus test appears to be that unless a Plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. The prayer Clause is a sine qua non for grant of decree of refund of earnest money. 36. Applying these principles to the facts of the case in hand, we find that the Respondent has neither prayed for the relief of refund of earnest money in the original plaint nor he sought any amendment at a subsequent stage. In the absence of such a prayer, it is difficult to accept that the courts would suo motu grant the refund of earnest money irrespective of the fact as to whether Section 22(2) of the SRA Act is to be construed directory or mandatory in nature. (Emphasis supplied) 59. The judgment in Desh Raj (supra) has been relied upon by the learned Counsel appearing for the Appellant herein. However, it is difficult to understand how this judgment furthers their case. On the contrary, this judgment clearly contradicts their position, stating in unequivocal terms that, in the absence of a prayer for the relief of refund of earnest money, such relief cannot be granted by this Court. 60 . Another judgment which has been relied upon by the learned Counsel for the Appellant in reference to the issue of refund of earnest money, is the case of Kamal Kumar v. Premlata Joshi, reported in MANU/SC/0012/2019 : 2019:INSC:16 : (2019) 3 SCC 704. Notably, the ruling in this case also stands contrary to the arguments advanced by the Appellant on account of the fact that the relief of refund of earnest money was denied therein. The relevant observations are extracted hereunder: 9. In the case at hand, we find that the two courts below have gone into these questions in the light of pleadings and evidence and 18 recorded a categorical finding against the Plaintiff holding that the Plaintiff was neither ready nor willing to perform his part of the contract and, therefore, he was not entitled to claim the relief of specific performance of the contract against the Defendants in relation to the suit land. It was also held that the Plaintiff was not entitled to claim any relief of refund of earnest money because it was liable to be adjusted as agreed between them. (Emphasis supplied) 61. Applying these principles to the facts of the case at hand, we find ourselves unable to accept the submissions of the Appellant that, in the absence of a specific prayer for the refund of advance money paid by them, Prayer (c) of the plaint which specifies the grant of "such other relief(s) as the Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice", can be construed to include a prayer for such an alternative relief. 62. The reasoning set forth in the case of Manickam (supra) as regards the relief of possession Under Section 22(1)(a) of the 1963 Act, can be appropriately imported in the present case to say that the relief of refund of earnest money Under Section 22(1) (b) is not a relief that automatically flows from a decree for specific performance of a sale agreement and must, therefore, be explicitly sought. 63. In our considered opinion, the law contained Under Section 22(2) of the 1963 Act is adequately broad and flexible to allow the Appellant to seek an amendment of the plaint for the said relief, even at the appellate stage. However, no such application for an amendment of the plaint was moved either before the trial court or during the course of the first appeal before the High Court. That is to say, the Appellant never prayed for the refund of the advance money. Here, it would be redundant to state that the law aids the vigilant, not those who sleep over their rights. 64. For all the foregoing reasons, we have reached the conclusion that the forfeiture of advance money by the Respondent Nos. 1-4 was justified. In such circumstances, we are not inclined to grant the relief of refund of advance money to the Appellant.” 25. Further, in view of the evidence laid by the parties as well as document Ex.D/1 admittedly executed by the plaintiff as well as defendants No.1 to 3, the plaintiff is not entitled for refund of his advance amount and it will not come under the definition of unjust enrichment. 26. Accordingly, this court does not find any scope for interference in the First Appeal filed by the plaintiff. The appeal is liable to be and is hereby dismissed. Parties shall bear their own costs. 27. Decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge inder