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Civil Law

Section 22 of Specific Relief Act, 1963

 05-May-2025

KR Suresh v. R. Poornima & Ors.  

“The court cannot grant refund of advance money to the appellant because it wasn't specifically requested in their petition, and the general prayer for "such other relief as the Court deems fit" is insufficient to include such a specific alternative remedy.” 

Justice JB Pardiwala and Justice R Mahadevan 

Source: Supreme Court  

Why in News? 

A bench of Justice JB Pardiwala and Justice R Mahadevan held that the forfeiture of earnest money was justified and hence the Court was not inclined to grant the relief of refund of advance money to the appellant. 

  • The Supreme Court held this in the case of KR Suresh v. R. Poornima & Ors. (2025). 

What was the Background of KR Suresh v. R. Poornima & Ors. (2025) Case?   

  • The dispute concerns a claim for specific performance of an Agreement to Sell (ATS) dated 25th July 2007 related to property No.307 in Kengeri Satellite Town Layout, Bangalore. 
  • The defendant no. 1 acquired the property through an unregistered Will dated 12th November 2002 executed by her late mother. 
  • The plaintiff (appellant) entered into an ATS with defendants 1-4 for a total sale consideration of Rs.55,50,000. 
  • The plaintiff paid Rs.20,00,000 as advance payment through two cheques of Rs.10,00,000 each. 
  • The ATS stipulated that the remaining Rs.35,50,000 would be paid within four months, after which a sale deed would be executed. 
  • The plaintiff claims that upon approaching a bank for a loan on 20th September 2007, the bank's advocate instructed him to obtain original title documents and a probate certificate from defendant no. 1. 
  • The plaintiff alleges that despite promising to furnish the required documents, defendant no. 1 failed to do so. 
  • After the four-month period lapsed, the plaintiff issued a legal notice dated 18th February 2008 expressing his readiness to complete the transaction. 
  • The plaintiff discovered that defendant no. 1 had sold the property to defendants 5 and 6 via a sale deed dated 15th February 2008. 
  • Defendant no. 1 responded on 15th March 2008, stating that the advance amount stood forfeited due to the plaintiff's default in making the balance payment within the specified period. 
  • The judgment of the Trial Court: 
    • The Trial Court dismissed the suit on the ground that the plaintiff had not approached the Court with clean hands. 
    • The Court found that time was the essence of the contract as defendants 1-4 urgently needed the money for a One-Time Settlement (OTS) with Indian Overseas Bank. 
    • The Court upheld the forfeiture of advance money as the ATS contained explicit recitals regarding forfeiture in case of default. 
  • The judgment of the High Court: 
    • The High Court dismissed the appeal and affirmed the Trial Court's judgment. 
    • The Court held that there was no obligation in the ATS for defendant no. 1 to furnish a probate certificate before executing the sale deed. 
    • The High Court noted that the plaintiff failed to pay the balance consideration within the stipulated four-month period and only issued a legal notice three months after the period expired. 
    • The Court denied the refund of advance money as the plaintiff had not sought this as an alternative prayer in the suit as required under Section 22 of the Specific Relief Act, 1963 (SRA). 

What were the Court’s Observations? 

  • The Court divided the present case into two issues: 
    • Validity of the forfeiture of Advance money 
    • Law on the Alternate relief of refund of earnest money under Section 22 of the SRA. 
  • With Regard to Issue (i): 
    • The Court held that in the facts of the present case it can be concluded that the amount described as “advance money” in the ATS is essentially “earnest money”. 
    • The Court held that it can be said on the basis of authorities expounded that a clause for forfeiture of earnest money is not penal in ordinary sense and hence Section 74 of the Indian Contract Act, 1872 (ICA) is inapplicable.  
    • Further, the Court observed that the forfeiture clause in the facts of the present case was equitable and fair as it imposed liability on both the appellant purchaser and respondent seller. 
    • The Court further observed that if the principle under Section 74 of ICA is applied in line with the reasoning laid down in the case of Kailash Nath Associates v DDA (2015) forfeiture would still be justified as there were losses suffered which were explicitly pleaded and proved by evidence. 
  • With Respect to Issue (ii): 
    • The High Court in the facts of the present case had denied the relief of refund of advance money having regard to the fact that the appellant failed to sought an alternate prayer for refund of advance sale consideration. 
    • The Court further observed that the Section itself permits the amendment of plaint at any stage to enable the plaintiff to seek an alternative relief of refund of earnest money. 
    • However, it was observed by the Court that under Section 22 of SRA the courts cannot grant relief suo moto since the inclusion of prayer clause remains a sine qua non for the grant of such relief. 
  • The Court denied the appellant's request for refund of advance money because it wasn't specifically included in their prayer for relief, and despite the option to amend their plaint even at the appellate stage under Section 22(2) of the SRA Act they failed to do so, justifying the forfeiture of the advance money by the respondents. 

What is Section 22 of SRA? 

  • A person suing for specific performance of a contract for immovable property transfer may also ask for possession or partition of the property. 
  • The plaintiff may request other appropriate relief, including refund of earnest money or deposits, if the specific performance claim is refused. 
  • The court cannot grant relief for possession or refund of earnest money unless these remedies are specifically claimed in the lawsuit. 
  • If the plaintiff hasn't claimed such relief in the original plaint, the court has discretion to allow amendment of the plaint at any stage to include these claims. 
  • The court's power to grant refund of earnest money does not limit its authority to award compensation under section 21. 
  • In the case of Desh Raj v. Rohtash Singh (2023), the Court held that : 
    • The court has broad discretion to allow the plaintiff to amend their plaint even at later stages to seek refund of earnest money. 
    • The essential requirement is that a plaintiff must specifically request refund of earnest money, either in the original filing or through amendment. 
    • The prayer clause requesting refund of earnest money is an absolute requirement (sine qua non) for the court to grant such relief. 
    • In this case, the respondent neither included a request for refund of earnest money in their original plaint nor sought amendment at any stage. 
    • Courts cannot grant refund of earnest money on their own initiative (suo motu), regardless of whether Section 22(2) of the SRA Act is interpreted as directory or mandatory. 

Civil Law

Subsequent Purchaser Not Necessary Party

 05-May-2025

M/S J N Real Estate v. Shailendra Pradhan & Ors. 

“ The transaction between the late Mr. Sameer Ghosh and the original defendant no. 8 (the appellant) shall be examined during the trial, and we refrain from expressing any opinion on its merits at this stage. However, we find that the appellant's presence in the suit is necessary for the proper and effective adjudication of the dispute, particularly since the original plaintiff has not objected to the impleadment of original defendant no. 8 ” 

Justices JB Pardiwala and R Mahadevan 

Source: Supreme Court  

Why in News? 

Recently, the bench of Justices JB Pardiwala and R Mahadevan has held that a subsequent purchaser is not a necessary party in a specific performance suit but can be impleaded as a proper party if their rights may be affected by the adjudication. 

  • The Supreme Court held this in the matter of M/S J N Real Estate v. Shailendra Pradhan & Ors.(2025). 

What was the Background of M/S J N Real Estate v. Shailendra Pradhan & Ors. (2025) Case ? 

  • The appellant, Udit Narain Singh Malpaharia, filed a writ petition challenging the revenue proceedings. 
  • The case pertained to certain land revenue matters where the Board of Revenue, Bihar had passed an order affecting the rights of parties. 
  • The appellant had not impleaded certain parties whose interests were directly affected by the proceedings before the Board of Revenue. 
  • The question arose whether such parties were necessary to join in the writ proceedings for quashing the order passed by the tribunal. 
  • The matter involved determination of procedural requirements for writ petitions under Article 226 of the Constitution. 
  • The appellant contended that joinder of all affected parties was not mandatory for adjudication of the writ petition. 
  • The respondent, Additional Member, Board of Revenue, Bihar, maintained that parties whose rights would be directly affected were necessary parties. 
  • No alleged offence was involved in this matter as it was purely a civil proceeding concerning revenue matters. 
  • The case reached the Supreme Court on appeal from the High Court's order dismissing the writ petition on grounds of non-joinder of necessary parties.

What were the Court’s Observations?

  • The Court observed that the law on necessary or proper parties is well-settled jurisprudence. 
  • The Court held that a necessary party is one without whom no effective order can be made. 
  • The Court determined that a proper party is one whose presence, though not essential for an effective order, is necessary for complete adjudication. 
  • The Court observed that a tribunal exercising judicial or quasi-judicial functions cannot decide against the rights of any party without providing them with a hearing. 
  • The Court noted that principles of natural justice demand affected parties be heard even if particular statutes or rules do not explicitly provide for it. 
  • The Court observed that any order made without hearing affected parties would be void ab initio. 
  • The Court determined that in a writ of certiorari, the High Court cannot vacate an order without the successful party being before it. 
  • The Court observed that orders issued behind the back of necessary parties can be ignored by said parties, rendering the proceedings ineffective. 
  • The Court concluded that parties whose interests are directly affected are necessary parties to a writ petition. 
  • The Court held that impleading proper parties is subject to judicial discretion of the High Court based on circumstances of each case. 
  • The Court observed that no offence was established as the matter concerned procedural requirements rather than criminal proceedings. 

What is Necessary Party ? 

  • A necessary party is one whose presence is essential for the adjudication of the suit as contemplated under Order I Rule 10(2) of the Code of Civil Procedure, 1908. 
  • A necessary party is one without whom no effective order or decree can be passed by the Court. 
  • The rights and interests of necessary parties are directly and substantially affected by the outcome of the proceedings. 
  • The Court cannot proceed to adjudicate upon matters affecting the rights of necessary parties in their absence. 
  • Any order or decree passed in the absence of a necessary party is void ab initio and unenforceable against such party. 
  • The Court is empowered under Order I Rule 10(2) to add any person as a party at any stage of the proceedings whose presence is necessary to effectually and completely adjudicate upon all questions involved in the suit. 
  • The joinder of necessary parties is not merely procedural but goes to the root of the Court's jurisdiction to pass an effective decree. 
  • The determination of whether a party is necessary depends on whether that party's legal presence is indispensable for the grant of relief sought. 
  • The principle of audi alteram partem mandates that no person's rights shall be adversely affected without affording them an opportunity to be heard. 
  • The Court is duty-bound to ensure that all necessary parties are before it before proceeding with the adjudication of the matter. 
  • A necessary party, if not impleaded, may render the entire proceedings infructuous or lead to multiplicity of litigation. 
  • The test for determining a necessary party is whether the right to relief is directly and substantially affected by the presence or absence of such a party. 

Family Law

Desertion Requires Intent

 05-May-2025

Arun Kumar v. Raj Soni Devi 

“Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'.”  

Justice Sujit Narayan Prasad and Justice Rajesh Kumar 

Source:  High Court of Jharkhand 

Why in News? 

Recently, the bench of Justice Sujit Narayan Prasad and Justice Rajesh Kumar held that desertion cannot be established solely by physical separation unless accompanied by a permanent intention to sever the marital relationship. 

  • The Supreme Court held this in the matter of Arun Kumar v. Raj Soni Devi (2025). 

What was the Background of Arun Kumar v. Raj Soni Devi (2025) Case? 

  • The case involves Arun Kumar (appellant/petitioner) and Raj Soni Devi (respondent), who were married on February 26, 1996, according to Hindu rites and customs. 
  • The couple has three children from their marriage: a daughter aged about 26 years, a son aged about 22 years, and another daughter aged about 20 years. 
  • Arun Kumar is employed as an Assistant Sub-Inspector in the Jharkhand Police. 
  • In 2019, Arun Kumar filed a petition seeking divorce under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, on grounds of cruelty and desertion. 
  • The petitioner alleged that his wife did not wish to live in a joint family, frequently quarreled with his relatives, and failed to respect or care for his parents. 
  • He further claimed that the respondent had subjected him to mental cruelty, threatened to have him killed, and had allegedly conspired with others to harm him. 
  • The petitioner contended that his wife had deserted him since November 15, 2016, and had not resumed conjugal relations since then. 
  • He also accused her of maintaining an illicit relationship with a man named Ranjit Kumar. 
  • The respondent denied all allegations and stated that she was still living at the husband's parental home in Patna with their children. 
  • She claimed that the petitioner had stopped communicating with her in 2016 and had allegedly moved in with another woman named Pooja Devi, with whom he purportedly had three children. 
  • The respondent maintained that she was willing to continue living with her husband and had no independent means of support. 
  • She stated that the husband had filed for divorce only after she had filed a petition for maintenance in 2019, which resulted in an order directing him to pay her Rs. 10,000 per month from 2021 onwards. 
  • The Principal Judge of the Family Court, Bokaro, dismissed the divorce petition, holding that neither ground of cruelty nor desertion was proven. 
  • Aggrieved by this decision, Arun Kumar filed an appeal under Section 19(1) of the Family Court Act, 1984, in the Jharkhand High Court. 

What were the Court’s Observations? 

  • The High Court held that desertion as a ground for divorce cannot be established merely through physical separation unless it is proven that the separating spouse intended to permanently sever the marital relationship. 
  • The Court emphasized that desertion requires both the factum of separation and the intention to end cohabitation permanently and found that the husband failed to discharge this legal burden. 
  • The Division Bench comprising Justice Sujit Narayan Prasad and Justice Rajesh Kumar noted that desertion is not merely withdrawal from a place but from a state of things, as the law seeks to enforce the recognition and discharge of common obligations of the married state. 
  • The Court observed that the offence of desertion is a continuing course of conduct which exists independently of its duration, but as a ground for divorce, it must exist for at least two years immediately preceding the presentation of the petition. 
  • The Court clarified that not every instance of separation amounts to desertion, with a critical component being the permanence of the intent behind the separation. 
  • The Court noted that for the offence of desertion, two essential conditions must be present for the deserting spouse: the factum of separation and the intention to bring cohabitation permanently to an end. 
  • Similarly, two elements are essential regarding the deserted spouse: absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home. 
  • The Court found that the petitioner failed to produce evidence showing that the respondent-wife had left the matrimonial house of her own volition. 
  • Regarding the allegation of cruelty based on not caring for in-laws, the Court observed that this ground was insufficient as the father-in-law had died 6-7 months after the marriage and the mother-in-law had died in 2016, while the divorce petition was filed in 2019. 
  • The Court concluded that the appellant failed to establish any perversity in the impugned judgment of the Family Court, defined as finding "no evidence or erroneous consideration of the evidence." 

What is Desertion?  

  • Desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955, constitutes the intentional permanent abandonment of one spouse by the other without consent and without reasonable cause, requiring both factum of separation and animus deserendi (intention to desert). 
  • The offence of desertion is not merely withdrawal from a place but from the state of matrimonial affairs, requiring a continuous period of not less than two years immediately preceding the filing of the divorce petition. 
  • The burden of proving desertion with requisite animus deserendi rests on the petitioner, and if established, the burden shifts to the respondent to prove reasonable cause for withdrawal from cohabitation. 
  • Constructive desertion occurs when the conduct of one spouse compels the other to leave the matrimonial home, making the former the deserting spouse despite not physically leaving themselves. 
  • Temporary separation resulting from anger or disagreement, without the intention to permanently terminate cohabitation, does not constitute desertion, as the quality of permanence in intention is essential to establish this matrimonial offence. 
  • Desertion comes to an end upon genuine resumption of cohabitation with animus reconciliandi (intention to reconcile), or upon a bona fide offer to return to the matrimonial home without unreasonable conditions.