MANORAMA KAMBLI Vs. SHAKUNTALA BAI

JUDGEMENT

(1.) THIS revision is directed against the judgment and decree dated 13.7.2006, passed in Civil Appeal No.1-B/2005 by the First Addl. District Judge Waraseoni, District Balaghat, by which the suit filed by the petitioner has been dismissed, by allowing the appeal filed by the respondent against the judgment and decree dated 4.7.2005, passed in Civil Suit No. 18-B/2004 by the II Civil Judge, Class-I, Waraseoni.

(2.) FACTS giving rise to filing of this revision are that the petitioner/plaintiff filed a suit for recovery of Rs.10,101/- as earnest money given to the respondent at the time of execution of an agreement for sale of the suit property. It was contended that there was an agreement to sell the suit property for an amount of Rs.94,000/- executed on 3.2.2001 and at that time the earnest money of Rs.10,101/- was paid by the petitioner to the respondent in front of the witnesses. However, there was a condition that a way would be made available to approach the suit property before the execution of the registered sale deed and since this condition was not fulfilled by the respondent, the sale deed could not be executed. The petitioner was, thus, entitled to refund of the amount of earnest money.

(3.) AFTER hearing learned counsel for the petitioner at length and after examining the record,s this Court is of the considered opinion that the lower appellate Court had not committed any error of jurisdiction. Fact remains that the suit could have been filed under Section 22 of the Specific Reliefs Act only if there was a condition mentioned in the agreement for refund of the earnest money so deposited for the purposes of sale of the suit property. A decree of specific performance could have asked for by the petitioner under the provisions of the Specific Reliefs Act and in case it was found by the trial Court that respondent was not in a position to perform her part of agreement, the Court could have directed refund of the earnest money as compensation to the petitioner. In absence of any specific relief claimed as per the provisions of Section 12 of the Specific Relief Act, 1963, the suit filed by the petitioner was not to be entertained at all. This being so, the lower appellate Court committed no error of law in passing the impugned judgment and decree.