Research › Search › Judgment

Kerala High Court · body

2026 DAILYLAW 699 (KER)

K. v. Varkey S/o Varghese VS Biju S/o Joseph

2026-06-09

Mohammed Nias C P

body2026
JUDGMENT : MOHAMMED NIAS C.P., J. The plaintiff in a suit for specific performance of a contract is the appellant. 2. The plaintiff and the defendant entered into Ext.A1 agreement for sale dated 01.03.2007, regarding the property belonging to the defendant for a consideration of Rs. 21,000/- per cent, by paying an advance of Rs. 25,000/-. The plaintiff, alleging that the defendant, without complying with the terms of the agreement, was trying to sell away the plaint schedule property, filed O.S.No.286/2007 before the Munsiff's Court, Muvattupuzha, to injunct the defendant from alienating the plaint schedule property. In the said suit, an undertaking was given by the defendant on 11.07.2007 that the plaint schedule property will not be alienated till the disposal of the suit and the same was recorded. Though the defendant filed a written statement and issues were framed, since the plaintiff and his counsel were absent on 28.09.2007, the date fixed for trial, the said suit was dismissed. 3. Alleging that the defendant has not performed the agreement by executing the sale deed, the present suit, O.S.No.134/2007, was filed before the Sub Court, Muvattupuzha. The defendant denied the sale agreement and contended that the same is a forged document, as he never intended to sell his property. It is further stated that the defendant had borrowed Rs. 10,000/- from the plaintiff on 28.02.2007, agreeing to repay the amount with 36% interest within three months and a security for repayment, a photocopy of his title document, blank signed stamp paper worth Rs.50/- and blank signed white papers were taken by the plaintiff from the defendant. The defendant contended that he had paid Rs.5,000/- with interest, and that a balance of Rs. 5,000/- remained unpaid. It is misusing the blank and white papers on which the plaintiff concocted the sale agreement. 4. The trial court framed issues as to whether there was any sale agreement between the plaintiff and defendant, whether the so called sale agreement was a forged document and whether the plaintiff is entitled to specific performance of the contract. 5. PWs 1 to 3 were examined, and Ext.A1 was marked on the side of the plaintiff. DW1 was examined, and Exts.B1 to B7 were marked on the side of the defendant. 6. 5. PWs 1 to 3 were examined, and Ext.A1 was marked on the side of the plaintiff. DW1 was examined, and Exts.B1 to B7 were marked on the side of the defendant. 6. The trial court, based on the evidence of PWs 2 and 3, who were the witnesses in Ext.A1 sale agreement, found that the same was executed on 01.03.2007 and that it was not a forged document. However, on the question of grant of specific performance, the trial court found that the plaintiff took no steps to get the sale deed executed and had also filed a suit for injunction, which was subsequently dismissed for non-prosecution. The trial court also found that the defendant intended to construct a building on the plaint schedule property and had produced a building plan for the said purpose. 7. The plaintiff's case was that he wanted to purchase the property to construct a house for his son and the evidence showed that the plaintiff had two houses, while the defendant had a building plan ready to construct a house in the plaint schedule property and accordingly found that the grant of specific performance would result in hardship for the defendant and accordingly found that the plaintiff is not entitled to specific performance. As regards the return of the advance amount, the trial court found that no relief was sought for the return of the advance and therefore, in view of the bar imposed by Section 22 of the Specific Relief Act, the plaintiff was not entitled to a decree for refund of the advance amount and accordingly the suit was dismissed. It is against the said judgment and decree that the present appeal is filed. 8. The learned counsel for the appellant contends that, having found that Ext.A1 sale agreement was valid, and since the plaintiff had earlier filed a suit apprehending alienation by the defendant, itself shows the keen interest of the plaintiff in getting the property registered, and as such, readiness and willingness ought to have been inferred. It is also argued that, having found that the agreement is valid, a decree for return of the advance amount ought to have been granted, even if there was no express prayer for the same, as it was only a lesser relief. 9. It is also argued that, having found that the agreement is valid, a decree for return of the advance amount ought to have been granted, even if there was no express prayer for the same, as it was only a lesser relief. 9. The learned counsel for the respondent/defendant contended that the trial court, after considering the entire evidence on record, clearly found that the plaintiff was never ready and willing to perform the court and as a matter of fact, he contended that even the agreement entered into was forged. The finding on the execution of Ext.A1 agreement is wrong. It is further argued that, at any rate, as rightly found by the trial court, the plaintiff/PW1 had clearly admitted that he had no money with him to pay the balance consideration on the stipulated date for execution of the sale deed. It is further admitted by him that he intended to purchase the property for constructing a house for his son, and therefore, he expected his son to pay the balance consideration. However, there was nothing on record to show that either the plaintiff or his son had a sufficient amount to pay the balance sale consideration. In view of the above admission, the plaintiff was never entitled to a decree for specific performance. As regards the prayer for return of the advance amount, the same was rightly refused by the Trial Court, in the absence of a relief sought in that regard. 10. Heard Sri. Manoj P. Kunjachan, the learned counsel appearing for the appellant and Sri. Deepu Lal Mohan, the learned counsel for the respondent, perused the records. 11. The only point that arises for consideration in this appeal is whether the judgment and decree call for any interference. Though the defendant had disputed the existence of the sale agreement, the trial court found, based on the evidence of PW2 and PW3, who are the witnesses to Ext.A1 sale deed, that the same was executed, and it was not forged. I do not find any material on record to dislodge the said finding, as the same was arrived at after properly appreciating the pleadings and evidence. Thus, the said finding that Ext.A1 was duly executed is only to be affirmed, and I do so. 12. I do not find any material on record to dislodge the said finding, as the same was arrived at after properly appreciating the pleadings and evidence. Thus, the said finding that Ext.A1 was duly executed is only to be affirmed, and I do so. 12. As regards the question as to whether the plaintiff is entitled to specific performance, the plaintiff, as PW1 deposed, that he did not have the money to pay the balance consideration on the date stipulated for execution of the sale and that he expected his son, who was not a contracting party, to pay the balance consideration as the construction of the house was for him. In short, there was nothing on record to show that either the plaintiff or his son had money to pay the balance sale consideration. Under such circumstances, there is a clear embargo under Section 16 of the specific relief to grant a decree for specific performance, as the plaintiff is required at all material times to be ready and willing to perform the contract. 13. Apart from that, the trial court had also taken note of the contention of the defendant that he had obtained a building plan for constructing a house in the plaint schedule property, while the plaintiff already had two houses, and therefore, granting a specific performance in favour of the plaintiff would cause hardship to the defendant. Thus, the finding that the plaintiff is not entitled to specific performance is clearly in tune with the evidence on record, and the same is hereby affirmed. 14. As regards the contention raised by the learned counsel for the appellant that the agreement being valid, the payment of Rs.25,000/- must also be held as proved, and therefore there should have been a decree for refund of the same, as the same is only a lesser relief. This contention cannot be accepted, in view of the clear stipulation in Section 22 (2) of the Specific Relief Act, as no decree for refund of the advance amount can be granted without a specific prayer for the same. There is no attempt made to amend the pleadings, either when the suit was pending or in this appeal. 15. The non-obstante clause in Section 22 (1) of the Specific Relief Act grants it an overriding effect, thereby excluding the operation of the Code of Civil Procedure, 1908 . There is no attempt made to amend the pleadings, either when the suit was pending or in this appeal. 15. The non-obstante clause in Section 22 (1) of the Specific Relief Act grants it an overriding effect, thereby excluding the operation of the Code of Civil Procedure, 1908 . This necessarily means that the contention of the learned counsel for the plaintiff that the relief of advance in such circumstances is only a lesser relief and can be granted under the provisions of the Code of Civil Procedure cannot be accepted. 16. As regards whether the courts can grant such reliefs suo motu, the same cannot be granted, as accepting the same would lead to the grant of a relief violating the express provisions of the statute. The learned counsel also argued that there is a prayer in the plaint for the grant of “such other relief(s) as the Honourable Court deems fit in the facts and circumstances of the case in the interest of justice”, and therefore the same can be construed to include a prayer for such an alternative relief. This argument is also liable to be rejected in view of Section 22 (2) of the Specific Relief Act, which has given enough flexibility to a plaintiff to amend the pleadings at any stage. 17. The use of the word “shall” in the proviso to Section 22 (2) imposes a mandate upon the court to allow the amendment of the plaint, as sought by the party, at any stage. The plaintiff, not having taken advantage of the same, cannot be allowed to seek a refund in the absence of a relief sought in that regard. The plaintiff, who never took advantage of the same, cannot be allowed to plead that he is entitled to a refund of the advance amount. This position is settled by a recent judgment of the Honourable Supreme Court Suresh K.R. v. R. Poornima reported in [2025 KHC Online 6429 (SC)]. 18. Given the above, the request for return of the advance amount also cannot be granted. Resultantly, the judgment and decree in the instant case call for no interference. Accordingly, the appeal will stand dismissed.