S. BALARADHAKRISHNAN Vs. D. AYYAVU

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S. No. 275 of 2008 on the file of the Additional Sub Court, Karur, which is a suit for specific performance of contract against the defendants. The suit was dismissed by the trial Court. Thereafter, he preferred an appeal before the learned District Judge, Karur in A.S. No. 25 of 2011. Pending hearing of the appeal, he filed an application under Order VI, Rule 17 r/w. Section 151 CPC for amending the plaint for incorporating the prayer, in the plaint of alternative relief for refund of advance amount with interest. The learned District Judge has returned the application stating that the appeal is in part heard stage and hence how this application is maintainable at this stage to be stated. Hence, the petitioner is before this Court for necessary directions. Mr. M. Karthikeya Venkitachalapathy, learned Counsel appearing for the petitioner would submit that inasmuch as Section 22(2) of the Specific Relief Act, 1963, enables the petitioner to file an application for alternative relief of refund of advance amount, he is not precluded from filing this application and that it is well settled proposition that such application for refund of advance amount can be filed in any stage of the proceedings, in case the relief was omitted to be mentioned in the plaint.

(2.) It is useful to extract Section 22(2) of the Specific Relief Act, 1963, which reads thus:

(3.) In support of his contention, the learned Counsel for the petitioner placed reliance upon a decision of this Court Viswanathan v. Ramakrishna Chettiar ,, 2002 1 LW 415 wherein this Court has held that this Court has ample power to permit the party to amend the plaint as to the relief of refund of the amount, following a decision of the Hon'ble Supreme Court. The relevant portion with propositions laid down by the Supreme Court is as follows: