1 2025:CGHC:44320-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. 225 of 2016 Ayodhya Prasad S/o Lochan Prasad Chaudhary, Aged About 46 Years Caste Aghariya, R/o Village Singhanpur, Tahsil Basana, Civil And Revenue District Mahasamund, Chhattisgarh … Appellant/Defendant versus Kamal Kumar S/o Jwala Prasad Mahant, Aged About 34 Years Caste Panika, R/o Village Sangitrai, Tahsil And District Raigarh, Chhattisgarh. … Respondent/Plaintiff For Appellant :Mr. Siddharth Pandey, Advocate For Respondent :Mr. Vineet Kumar Pandey, Advocate As Amicus Curiae :Mr. Manoj Paranjpe, Senior Advocate with Ms. Shivangi Agrawal, Advocate. DB- Hon'ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board 01.09 .2025 HARNEET KAUR Digitally signed by HARNEET KAUR Date: 2025.09.02 17:43:30 +0530 2 Sanjay K. Agrawal, J. 1. Appellant/Defendant has preferred this first appeal under Section 96 of the Code of Civil Procedure calling in question the legality, validity and correctness of impugned judgment and decree dated 11/05/2016 passed by learned Additional District Judge Saraipali, District Mahasamund in Civil Suit No. 03-A/2015 whereby plaintiff’s suit has been decreed to the extent of directing the appellant/defendant to refund the sale consideration amount of Rs. 16,20,000/- with interest to the respondent/plaintiff. (For the sake of convenience, the parties will hereinafter be referred to as per their status and ranking given in the plaint before the trial Court.) 2. An agreement to sale was executed between the plaintiff and defendant on 12/07/2011 for the sale of suit land shown in Schedule A annexed with the plaint situated at Village Singhanpur, Tahsil Basna, District Mahasamund, originally owned by the defendant to the plaintiff for a 3 sale consideration of Rs. 32,25,000/- out of which, Rs. 9,00,000/- was paid by the plaintiff to the defendant as interim amount and subject to demarcation, sale deed was to be executed. Thereafter, on 10/01/2012 and 15/02/2012, Rs. 2,20,000/- and Rs. 5,00,000/- were paid by the plaintiff to the defendant which totals to Rs. 16,20,000/-, however, the defendant remained unabiding towards the execution of the sale deed which led to the filing of the suit by the plaintiff for specific performance of contract, possession and for other consequential reliefs. 3. Defendant filed his written statement opposing the plaint averments stating inter alia that from 12/07/2011 to 27/08/2012, he had contacted the plaintiff several times and asked him to pay the remaining sale consideration and get the sale deed executed but the plaintiff refused after which defendant also served a notice to the plaintiff on 17/08/2012 but then again plaintiff failed to pay the remaining amount and get the sale deed executed. He has further stated that apart from the interim amount of Rs. 9,00,000/-, plaintiff has not paid any money 4 to the defendant and as such, plaintiff’s suit is liable to be dismissed. 4. Learned trial Court framed 6 issues and answered them as stated below :- वाद प्रश्न निष्कर्ष 1) क्या वादी, प्रतिवादी के साथ, वाद सम्पत्ति, जिसका उल्लेख वादपत्र के साथ संलग्न अुसूची "अ" में निकया गया है, उसके निवक्रय का करार निदांक 12/07/2011 को कु ल 32,25,000/- रूपये में निकया था ? और इस सम्बन्ध में दो गवाहों के समक्ष निवक्रय की संनिवदा/ करार निष्पानिद निकया गया था ? "हाँ" 2) क्या वादी े उपरोक्त निवक्रय के करार निदांक 12/07/2011 को निष्पानिद निकये ाे के निद ही प्रतिवादी को बौर अनि9म 9,00,000/- रूपये निदया था ? "हाँ" 3) क्या वादी, उपरोक्त निवक्रय के संनिवदा /करार निदांक 12/07/2011 के अपे भाग का पाल करे के त्तिलए सदैव त्पर रहा है ? ? " ” हाँ 4) क्या प्रतिवादी, उपरोक्त निवक्रय के संनिवदा/ करार निदांक 12/07/2011 के अपे भाग का पाल करे में उपेक्षा बर रहा है ? अथवा उसके पाल से इंकार कर रहा है ? " ” हाँ 5) क्या वादी, प्रतिवादी से उपरोक्त निवक्रय के संनिवदा/ करार का निवनिर्दिदष्ट अुपाल करा पाे का अतिधकारी है ? " ” हाँ 6) अन्य सहाया एवं व्यय ? " निर्णय की कं तिAका 19 के अुसार" 5 5. In sum and substance, the trial Court, though recorded findings and answered all the issues in favour of the plaintiff, but declined to grant decree for specific performance of contract and only granted decree for refund of sale consideration of Rs. 16,20,000/- with interest of 6% per annum to the plaintiff, however, the said relief was not sought by the plaintiff and during the pendency of this first appeal, plaintiff has filed an application under Order 6 Rule 17 of the CPC read with Section 22 of the Specific Relief Act, 1963 (hereinafter “the Act of 1963”) seeking amendment in the plaint. 6. Mr. Siddharth Pandey, learned counsel appearing for the appellant/defendant, would submit that in absence of relief of refund of sale consideration sought by the plaintiff, the trial Court is absolutely unjustified in granting decree of refund of sale consideration of Rs. 16,20,000/- in favour of the plaintiff and at this stage, the application filed by the plaintiff for amendment in the plaint cannot be considered and is liable to be dismissed, as such, the impugned judgment and decree passed by the trial Court are liable to be set aside. 6 7. Mr. Vineet Kumar Pandey, learned counsel appearing for the respondent/plaintiff, would support the impugned judgment and decree passed by the trial Court and submit that the application for amendment in the plaint can very well be considered at the appellate stage, as such, the said application be allowed and the decree passed by the trial Court be affirmed. 8. Mr. Manoj Paranjpe, learned Senior Advocate appearing as Amicus Curiae, has brought to our notice the legal position on the issue involved in this appeal and also submitted his written note. He has relied upon the decision rendered by the Supreme Court in the matter of K.R. Suresh v. R. Poornima1 with regard to Section 22(2) of the Act of 1963 and submit that proviso to Section 22(2) of the Act of 1963 imposes a mandate upon the court to allow the amendment of plaint, as sought by the party, at any stage. He would also rely upon the decision rendered by the Supreme Court in the matter of Sampath Kumar v. Ayyakannu2 and submit that an amendment once incorporated relates back to the date of the 1 2025 SCC Online SC 1014 2 (2002) 7 SCC 559 7 suit and further submits that Section 22 of the Act of 1963 has an overriding effect over the provisions contained in Order 6 Rule 17 of CPC. 9. We have heard learned counsel for the parties and learned Amicus Curiae on the application under Order 6 Rule 17 of CPC read with Section 21 of the Act of 1963 seeking amendment in the plaint as well as on the merits of the matter, and went through the record with utmost circumspection. 10. The two points for determination that are involved in the present appeal are as follows :- (i) Whether the application for amendment in the plaint filed by the respondent/plaintiff can be considered and allowed at the appellate stage ? (ii) Whether the trial Court is justified in granting decree for refund of sale consideration in favour of the respondent/plaintiff ? We will first consider question No. 1 as this relates to amendment in plaint seeking relied of refund of amount of sale consideration. 8 Discussion and analysis on Point No. (i) :- 11. By way of this application, the respondent/plaintiff has sought the following amendment in the relief clause of the plaint :- “अथवा निवकल्प में यनिद न्यायालय इस निष्कर्ष पर पहुँची है की संनिवदा के निवशिEष्ट अुपाल की तिAक्री वादी के पक्ष में प्रदा हीं निकया ा सका ो वादी को प्रतिवादी से उसके द्वारा निदए गए अनि9म राशिE मय ब्या के एवं क्षतिपूर्ति प्रदा निकया ावे। ” 12. At this stage, it would be appropriate to notice the provision contained under Section 22 of the Act of 1963, which provides as under :- “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, 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 (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed : Provided 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 9 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.” 13. A careful perusal of Section 22(1) of the Act of 1963 would show that it has an overriding effect over the provisions contained in CPC. It is also a law dealing with pleadings, as is the case in relation to Order 6 Rule 17 of CPC. Section 22 deals with pleadings in regard to specific type of cases and, as such, the said statute viz. the Act of 1963 is a special statute, in contradistinction to the provisions in the CPC which are general in nature. As such, provision contained in Section 22 of the Act of 1963, which has been given an overriding effect by introducing a non-obstante clause, has to prevail over the provisions contained in the CPC. The proviso to sub-section (1) of Section 22 of the Act of 1963 enables the plaintiff who has not claimed the relief of possession in the plaint, to seek an amendment and claim the same at any stage of the proceedings and the said 10 right of the plaintiff casts an obligation on the Court to allow the said amendment. 14. The Supreme Court in the matter of K.R. Suresh (supra) has considered Section 22(1) and (2) of the Act of 1963 and held that the law contained under Section 22(2) is adequately broad and flexible to allow the appellant to seek an amendment of the plaint even at the appellate stage. It has been observed in paragraphs 56, 58, 62 and 63 as under :- “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 Civil Procedure Code, 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 Muhammad3; Tarit Bhowmik v. Mukul Day4] 58. It is thus a settled position of law that the plaint may be amended at any stage of the proceedings to enable the 3 1982 SCC OnLine Cal 59 4 2014 SCC OnLine Cal 5361 11 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 Singh5. 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 5 (2023) 3 SCC 714 12 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) 62. The reasoning set forth in the case of Manickam v. Vasantha6 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.” 15. Similarly, in the matter of Sampath Kumar (supra), their Lordships of the Supreme Court have held that an amendment once incorporated 6 2022 SCC Online SC 2096 13 relates back to the date of the suit and observed as under :- “An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date of which the application seeking the amendment was filed. (Emphasis supplied)” 16. (Emphasis supplied)” 16. The decision of Sampath Kumar (supra) has been followed with approval in the matter of Mallavva and Another v. Kalsammanavara Kalamma (Since Dead) by Legal Heirs and Others7 wherein their Lordships of the Supreme Court have held that a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. 17. Coming to the facts of the present case in light of the aforesaid judgments of the Supreme Court (supra), it is quite vivid that Section 22(1) of the Act of 1963 has an overriding effect over 7 2024 SCC Online SC 3846 14 the provisions of CPC and by virtue of proviso to Section 22(2) of the Act of 1963, amendment can be allowed at any stage including the appellate stage. The respondent/plaintiff has filed application under Order 6 Rule 17 of the CPC read with Section 22 of the Act of 1963 for amendment in the plaint during the pendency of this first appeal, which in our considered opinion, is covered by the provision contained under Section 22(2) of the Act of 1963 and as such, we find it appropriate to allow the application for amendment. 18. In view of the aforesaid reasons, I.A. No. 3/2022 is allowed. With the permission of the Court, let the amendment be carried out forthwith. Discussion and analysis on point No. (ii) :- 19. Now that we have considered and allowed the application for amendment and necessary amendment has been incorporated in the plaint, we shall consider the merits of the matter. 20. Plaintiff filed a suit for specific performance of contract, possession and other consequential reliefs and though the trial Court recorded all 15 the findings in favour of the plaintiff, but the relief of specific performance of contract being discretionary, the trial Court declined to grant the said relief in favour of plaintiff and proceeded to grant the relief of refund of sale consideration of Rs. 16,20,000/- along with interest in favour of the plaintiff, which was earlier not claimed, but now the plaint stands amended by order of this Court and this relief has been sought by the plaintiff. 21. Learned trial Court has specifically recorded a finding in paragraph 15 of the impugned judgment that till date, an amount of Rs. 16,20,000/- has been paid by the plaintiff to the defendant as sale consideration which has been proved by the plaintiff (P.W.-1) and his witness Bharat Patel (P.W.-2) and the defendant has not even entered into the witness box before the trial Court to assail or refute the said fact of payment of consideration amount by the plaintiff to him. In that view of the matter, we find that the trial Court is absolutely justified in granting decree for refund of sale consideration of Rs. 16,20,000/- along with interest of 6% per annum in favour of the plaintiff. We do not find good 16 ground warranting interference in the impugned judgment. 22. Accordingly, this first appeal, being devoid of merits, is liable to be and is hereby dismissed leaving the parties to bear their own cost(s). 23. A decree be drawn up accordingly. 24. This Court appreciates the valuable assistance rendered by Mr. Manoj Paranjpe, learned Senior Advocate, who is short notice submitted written synopsis along with citations relevant for the purpose of resolving the controversy. We place his assistance on record. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Harneet