JUDGMENT : PARTH PRATEEM SAHU, J. 1. Appellant/plaintiff has filed this appeal questioning the legality and sustainability of the impugned judgment and decree dated 10.01.2012, passed in Civil Suit No.48-A/2011, whereby learned 2 nd Additional District Judge, Durg, District – Durg (C.G.) has partly allowed the suit filed by plaintiff/respondent No.1. 2. Facts relevant for disposal of this appeal are that plaintiff/respondent No.1 filed a civil suit for specific performance of contract with respect to the land bearing Kh.No.477/6 measuring area 0.072 hectares (18 dismil), situated at Village Kodiya, P.C. No.28, Rajendra Singh Mandal Village Anda, Tahsil and District Durg (C.G.) owned and possessed by deceased defendant No.1 Tulsiram pleading therein that on 14.06.2008, an oral agreement was entered into between the plaintiff and defendant No.1 for sale of the said land for a total consideration of Rs. 2,00,000/-. It is further pleaded in the plaint that part payments were made on different dates towards the agreed consideration, amounting to Rs. 1,96,500/-. On 27.10.2008, execution of the sale deed was objected by defendants No. 2 and 3, due to which the sale deed could not be executed. The plaintiff was advised to take appropriate legal steps in this regard. Despite having received Rs. 1,96,500/-, the defendants refused to execute the sale deed in favour of the plaintiff in respect of the land mentioned above. Consequently, the plaintiff has filed the present suit seeking specific performance of the contract. 3. Defendants filed their reply refuting the plaint allegation and it was pleaded that Tulsiram never entered into any oral or written contract with the plaintiff for sale of the suit land. Plaintiff has paid Rs.1,96,500/- through four cheques but it was not paid in respect of the disputed land. Defendant No.2 has no right to deal with the land owned and possessed by defendant No.1 or to receive any money in exchange for the transaction because he was not the owner of the suit land. It was specifically pleaded that Tulsiram had never made any deal with the plaintiff to sell the disputed land and prayed for dismissal of the suit. 4. Learned trial Court based on the pleadings made by respective parties formulated 6 issues for consideration. It was specifically pleaded that Tulsiram had never made any deal with the plaintiff to sell the disputed land and prayed for dismissal of the suit. 4. Learned trial Court based on the pleadings made by respective parties formulated 6 issues for consideration. Parties led their evidence and after conclusion of trial upon appreciation of the documentary and oral evidence brought on record, learned trial Court partly allowed the suit filed by the plaintiff directing defendant No.1 to refund an amount of Rs. 1,96,500/- to the plaintiff, however, the claim for specific performance of the contract was dismissed by the impugned judgment and decree. 5. Learned counsel for appellant/plaintiff would submit that learned trial Court erred in passing judgment and decree of refund of Rs.1,96,500/- with 6% interest even after recording a finding that plaintiff failed to prove pleadings of agreement to sale between the parties. In support of his contention he referred to the paragraph No.14 of the impugned judgment. He also contended that relief of refund of amount of Rs.1,96,500/- is granted by learned trial Court in favour of plaintiff is in contravention of provisions U/s. 22 (2) of the Specific Relief Act, 1963 (In short ‘the Act of 1963’). He would submit that in the plaint, plaintiff has only sought relief of declaration that defendants is bound to execute the sale deed of the land bearing Kh. No.477/6, 0.070 Hectare 18 dismil) and further relief that if the sale deed is not executed by defendants then sale deed be executed through Court. No other relief has been claimed. Referring to the provision under Sub-section 2 of Section 22 of the Act, 1963 he would submit that the Act of 1963 specifically provides that no relief as provided under Sub-section 1 (a) and (b) can be granted unless it has been specifically claimed by plaintiff. As no relief is claimed for refund of money, learned trial Court erred in issuing such direction. In support of his contention, he referred to the decision in case of Desh Raj & Ors. Vs. Rohtash Singh, (2023) 3 SCC 714 . 6. Learned counsel for respondents opposes the submission of learned counsel for appellant and would submit that trial Court had found proved the money paid to defendant No.2 of Rs.1,96,500/-. In support of his contention, he referred to the decision in case of Desh Raj & Ors. Vs. Rohtash Singh, (2023) 3 SCC 714 . 6. Learned counsel for respondents opposes the submission of learned counsel for appellant and would submit that trial Court had found proved the money paid to defendant No.2 of Rs.1,96,500/-. Referring to the same provision under Section 22 of the Act of 1963, he would submit that it is discretion upon the Court to grant either relief of specific performance of contract or can direct for refund of amount. Case of the plaintiff was that he paid money to defendant No.2 with an understanding that the said amount is being paid in lieu of oral agreement of sale for executing the sale deed for the land, subject matter of the suit for consideration of Rs.2.00 Lakhs. Out of agreed consideration, Rs.1,96,500/- has already been paid. There is no error in the impugned judgment and decree passed by learned trial Court. 7. Learned counsel for respondent No.3 would submit that lis is between plaintiff and private respondents, therefore, he is not making any submission on merits of the case. 8. I have heard learned counsel for parties and perused record of trial Court. 9. Perusal of the plaint would show that it is filed under heading of suit for specific performance of contract valued at Rs.2,00,000/-. It is pleaded that on 14.06.2008 there was oral agreement to sale the land bearing Kh. No.477/06 measuring 0.072 hectares (18 dismil) for total consideration of Rs.2,00,000/- and further in the body of the plaint it is mentioned about the payment made in lieu of it in part on different dates totaling into Rs.1,96,500/-. It is also pleaded that on 27.10.2008, execution of sale deed was objected by defendant No.2 and 3 therefore, it could not be executed and have also advised to take necessary steps in accordance with law. 10. To prove the pleadings in plaint, plaintiff submitted seven documents in its support including the registered legal notice issued on behalf of plaintiff by his advocate to defendant No.2 (Ex.P-1). In the body of the notice there is mention of amount paid on different dates of total sum of Rs.1,96,500/- and in concluding para it is mentioned that loan amount be refunded within one week or else he will take shelter of Court. In the body of the notice there is mention of amount paid on different dates of total sum of Rs.1,96,500/- and in concluding para it is mentioned that loan amount be refunded within one week or else he will take shelter of Court. From the contents of the notice it is apparent that amount, which is stated to be paid and is forming part of the pleading in plaint is not against the agreement to sale but as a hand loan. Ex.P-4 is a report lodged to Superintendent of Police and vide Ex.P-5, the proceedings have been drawn U/s. 155 of Cr.P.C.. Plaintiff also placed entries made in the passbook to show that payment has been made to the defendant No.1 through his account in her account. Plaintiff is examined as (P.W.-1). In examination-in-chief he stated as per the pleadings made in the plaint, however, in cross-examination in para -8 he admitted that he has not given any notice to the defendants to get the sale deed executed of land, subject matter of the suit. He also admitted that notice Ex.P-1 is of demand of money back which he gave as loan and there is no mention of oral agreement to sell land bearing Kh. No. 477/6 measuring 0.07 hectare. He also admitted that there is no document placed before the Court that defendant No.1 gave consent to sell his land against the amount given to defendant No.2. 11. Shivkumar Sahu is examined as (P.W.-2). In cross-examination, he admitted that he has not mentioned in his affidavit filed under Order 18 Rule 4 of C.P.C. about the purpose for which the plaintiff gave money to defendant No.2. Similar is evidence of Udey Ram (P.W.-3). 12. Learned trial Court upon appreciating the documentary and oral evidence brought on record has categorically recorded that plaintiff failed to prove the oral agreement of sale entered into between the plaintiff and defendant No.1 to 3. It is also recorded that though the amount of Rs.1,96,500/- paid by plaintiff but he failed to prove that the said amount was given against the specific performance of contract of the suit land. The said finding of the learned trial Court is not put to challenge by the respondent/plaintiff. It is also recorded that though the amount of Rs.1,96,500/- paid by plaintiff but he failed to prove that the said amount was given against the specific performance of contract of the suit land. The said finding of the learned trial Court is not put to challenge by the respondent/plaintiff. Learned trial Court even after recoding a finding that plaintiff failed to prove that any amount is paid in lieu of agreement to sale (oral agreement), however, had passed the judgment and decree directing defendant No.2 to pay sum of Rs.1,96,500/-. 13. Admittedly in the plaint, plaintiff has not prayed for refund of money paid by him nor it is a suit for recovery of money. Order 7 Rule 7 of C.P.C. specifically provides that relief to be pleaded specifically. It reads as under:- “7. Relief to be specifically stated .—Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.” 14. The provision under Section 22 of the Act of 1963, which is relevant for disposal of this appeal is extracted below for ready reference :- “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; (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.” 15. Under Sub-section (1) (b) of the Section 22 of the Act, 1963 provides that 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 is envisaged and Sub-section 2 of Section 22 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. 16. Both the provisions as extracted above i.e. the provisions of Civil Procedure Code and under the Act of 1963, it is apparent that relief which can be granted as mentioned under Section 22 (1) (b) is not a general or other relief which may also be given as the Court may think just to the same extent. But in view of the language of Sub-section (2) of Section 22 of the Act of 1963 it mentions that the said relief cannot be granted unless it is specifically claimed. The said provisions of the Act of 1963 escaped consideration by learned trial Court and have arrived at erroneous conclusion that the plaintiff is entitled for amount of Rs.1,96,500/- as paid by him. 17. Perusal of provision U/s. 22 (1) (b) of the Act of 1963 would show that alternate relief of refund of earnest money or deposit can be ordered only when the Court refuses to grant decree of specific performance of contract. In the case at hand, learned trial Court has not found proved that there was contract/agreement to sale between plaintiff and defendants. 18. Hon’ble Supreme Court in case of Deshraj and Others (supra) has observed thus: [para 32 to 35] “C.3. Whether the respondent was entitled to recovery of earnest money? 32. In the case at hand, learned trial Court has not found proved that there was contract/agreement to sale between plaintiff and defendants. 18. Hon’ble Supreme Court in case of Deshraj and Others (supra) has observed thus: [para 32 to 35] “C.3. Whether the respondent was entitled to recovery of earnest money? 32. The final aspect of this dispute is with respect to the relief granted by the courts below to the respondent in the form of recovery of earnest money with requisite interest. However, before inquesting into this issue we must take note of the following relevant clauses of the sale agreements— “1. That it has been decided that date of execution of this agreement to sell is 16-8-2004 [Sixteen August Two Thousand Four]. *** 4. That if the second party is not able to execute the sale deed on the prescribed date then the First Party will be entitled to confiscate the earnest money.” (Emphasis supplied) 33. Firstly, we may refer to Section 22 of the Specific Relief Act of 1963 (hereinafter “the SRA Act”) which provides that any person suing for the specific performance of the contract for the transfer of property may ask for — (a) possession or partition and separate possession of the property in addition of such performance OR (b) such person may seek any other relief to which he is entitled to “including the refund of any earnest money or deposit paid or made by him” in case his claim for specific performance is refused. However, sub-section (2) thereof puts a caveat that the abovementioned reliefs shall not be granted by the court unless “it has been specifically claimed”. The proviso to sub-section (2) further says that even if such relief was not specifically claimed in the plaint, it is the discretion of the court to permit the plaintiff to amend the plaint “at any stage of the proceedings” and allow him to include the claim for refund of the earnest money or deposit paid. 34. The relevant part of the provision of the SRA Act reads as follows— “ 22. 34. The relevant part of the provision of the SRA Act reads as follows— “ 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; (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: 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 on such terms as may be just for including a claim for such relief.” (Emphasis supplied) 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.” 19. 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.” 19. Considering the facts of the case at hand, the provisions as extracted above and the decision of Hon’ble Supreme Court in the opinion of this Court learned trial Court erred in allowing the suit in part and directing defendants No.2 to pay a sum of Rs.1,96,500/- which in the eyes of law is not sustainable and accordingly the judgment and decree passed by learned trial Court to that extent is not sustainable and it is hereby set-aside. 20. Accordingly, the appeal is allowed. 21. The Decree be drawn accordingly.