M/S Dreamland Builders vs Dashrath Singh Solank
- Court
- Madhya Pradesh High Court
NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
1 FA-698-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
th
ON THE 30 OF JULY, 2026
FIRST APPEAL No. 698 of 2018
M/S DREAMLAND BUILDERS
Versus
DASHRATH SINGH SOLANK AND OTHERS
Appearance:
Shri Deepesh Joshi - Advocate for the Appellant through Video
Conferencing.
Shri Shiv Kumar Sharma - Advocate for the Respondent No.1.
Shri Sourabh Singh Sengar - Panel Lawyer for the Respondent
No.2/State.
ORDER
The present Appeal under Section 96 of Code of Civil Procedure has
been filed challenging the final judgment and decree dated 14.02.2018
passed by the Trial Court in RCSA No.104 of 2015 whereby the suit has
been decreed in a very peculiar manner.
2. I.A.No.22516 of 2025 has been filed by the respondent
No.1/defendant for final hearing of the appeal in motion stage. Learned
counsel for the Appellant is ready to argue the matter finally.
3. Looking to the consent of both the parties, the matter is heard finally
in motion stage itself.
4. A suit for specific performance was filed by the plaintiff against the
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
11:53:06 AM
NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
2 FA-698-2018
defendant on the assertion that there was an agreement in respect of land in
Survey No.402 area 1.142 hectare (2.821 acres) situated at Village Fanda
Kalan, Tehsil Huzur, District Bhopal and and an agreement to sale dated
20.02.2012 was executed between the parties for total consideration of
Rs.1,66,38,000/-, out of which except Rs.83.38 lakhs, the remainder
consideration of Rs.83.00 lakhs has been paid to the defendant and in this
manner, almost 50% of the agreed consideration has already been paid to the
defendant. The time stipulated for execution of agreement was 20.03.2013
but the defendant avoided to honor the agreement and therefore, the suit for
specific performance was filed by the plaintiff on these allegations in
January 2015.
5. The defendant filed his written statement and in the written
statement, it was pleaded that it is the plaintiff who has committed beach of
conditions of agreement and therefore, the suit be dismissed. It was further
contended that since the remainder consideration was not paid within the
stipulated period by the plaintiff and in the meantime, the valuation of the
land has increased manifold and at present, the valuation of the land is around
Rs.1.20 crores per acre. Therefore, at present it is not possible to honor the
agreement. On these assertions, the assertions in the plaint were countered.
However, the execution of agreement was agreed and receipt of
consideration amount of Rs.83.00 lakhs was also agreed.
6. The matter went to Trial and the Trial Court has framed a number of
issues. By the impugned judgment and decree dated 14.02.2018, the Trial
Court has answered most of the issues in favor of the plaintiff and has
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
11:53:06 AM
NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
3 FA-698-2018
decreed the suit but the decree has been issued in a very peculiar manner.
The Trial Court has held that the execution of agreement is proved, the
receipt of half of the sale consideration is proved, the readiness and
willingness of the plaintiff is proved and the suit being filed within limitation
is proved. The Trial Court further held that the plaintiff has duly proved that
he is entitled to get the specific performance of agreement carried out in his
favour.
7. However, the ultimate relief that has been granted by the Trial Court
is very strange and peculiar in itself. The operative part of the decree reads as
under:-
"1- , -01
वाद ितवाद मांक को आज दनांक से एक माह के अ दर
83,38,000 /-
पये क रािश अदा करेगा और इसके त काल प "ात एक
-01
स #ाह के अ दर ितवाद मांक $ारा %ववादत भूिम का %वकय प (
का िन )पादन वाद के प * म + करायेगा और क ,जा स -पेगा ।
:-
%वक/प म +
2- -01 -
ितवाद मांक य द उपरो 1 भूिम के %वय प ( का िन )पादन
, -
नह ं कराना चाहता है तो %वय प ( म + दिश 4त क गई भूिम क आधी
-
भूिम का %वय प ( का िन )पादन आज से एक माह के अ दर वाद के
प * म + करायेगा और क ,जा स -पेगा ।
:-
%वक/प म +
3- -01 02 -1
य द उपरो 1 कं डका मांक व के अनु प ितवाद मांक
-
$ारा वाद के प * म + न तो पूर भूिम के %वय प ( का िन )पादन कया
-
जाता है और न ह आधी भूिम %वय प ( का िन )पादन कया जाता है तो
-01
एक माह के अंदर ितवाद मांक $ारा वाद को उससे ली गई रािश
83,00,000/-
पये क अदायगी क जायेगी और उ 1 रािश पर वाद
06
:तुती दनांक से संपूण 4 रािश वसूली दनांक तक ितशत वा %ष4क क
"
दर से ,याज देय होगा।
8. Though his suit has been decreed, but plaintiff is aggrieved by the
aforesaid relief granted to him because the first relief granted is to pay the
remainder sale consideration to the defendant and the defendant to execute
the sale deed. The first alternative relief is that if the defendant No.1 does not
wish to get the sale deed executed for entire land, then he should execute the
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
11:53:06 AM
NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
4 FA-698-2018
sale deed of half land and the second alternative relief is that the defendant
may refund the sale consideration already received from the plaintiff with
interest @ 6% per annum.
9. Learned counsel for the appellant had vehemently argued that this
type of decree in a suit is totally unknown to law because the Trial Court has
either to pass a decree of specific performance or to pass a decree of refund
of sale consideration. The Trial Court has passed a decree giving option to
the defendant either to execute the decree or to execute decree of half of the
land or to refund the sales consideration. In this manner, though the suit has
been decreed but in fact no relief has actually been granted to the plaintiff. If
the Trial Court was of the opinion that there is no readiness and willingness
of the plaintiff or that for any reason, the decree for specific performance is
not equitable, then the Trial Court could have passed decree for refund of
sale consideration but the Trial Court indeed found the readiness and
willingness of the plaintiff to be proved. It is argued that in such
circumstances, decree could have been passed giving option to the plaintiff
to either pay the remainder sale consideration within a stipulated period or
upon failure of payment of remainder sale consideration within a stipulated
period, then to accept the token amount already paid. However, this option
could not have been given to the defendant because in this manner, there is
no effective decree at all. The parties are not certain that what is the decree
that they have to comply with. It is leading to a number of disputes whereby
the appellant/plaintiff filed execution petition but the same had to be
withdrawn because the defendant appeared therein and stated that he only
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
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NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
5 FA-698-2018
wants to refund the already paid advance amount that was received as part of
sale consideration. It is argued that even today, the plaintiff is ready and
willing to pay the remainder sale consideration but due to the ambiguous
decree passed by the Trial Court, the entire litigation has gone to waste
without any fruitful result.
1 0 . Per contra, learned counsel for the respondent/defendant has
heavily defended the judgment and decree under challenge and has
contended that the Trial Court has rightly given option to the defendant
either to execute the sale deed or to refund the token amount and there is no
error in that. It is argued that the said option has been given in view of the
assertion of Counsel for the plaintiff in para 52 of the judgment under
challenge.
11. Upon considering this assertion, it is seen that in para 52 of the
judgment under challenge, Trial Court has noted the oral assertion of the
Counsel for the plaintiff that the decree of specific performance be granted
as the plaintiff is ready and willing to pay the balance consideration and if
that is not possible, then decree of specific performance for half length for
which consideration is already being paid be granted and if even that is not
possible, then at least a decree for refund of sale consideration be passed.
12. The relevant para 52 of the judgment is as under:-""
"52-
वाद के अिधव 1ा महोदय ने अंितम तक 4 के :तर पर यह =य1
-01 ,
कया है क ितवाद मांक को यह िनद >श दया जाये क वह वाद
83,38,000/- -
से पये क शेष रािश ा# करे और वाद के प * म + %वय
,
प ( का िन )पादन कराये। उ ह?ने यह भी =य1 कया है क य द ऐसा
-
संभव नह ं है तो कुल भूिम के आधे रकबे के संबंध म + ह ितवाद %वय
, -
प ( का िन )पादन कराये Bय?क कुल %वय मू /य क आधी रािश वाद
$ारा दान क जा चुक है। वाद अिधव 1ा महोदय इस बात के िलये भी
-
तैयार ह C क य द आधी भूिम का भी %वय प ( का िन )पादन नह ं कया
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
11:53:06 AM
NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
6 FA-698-2018
, -01
जाता है तो ितवाद मांक $ारा वाद से ा# क गई रािश
83,00,000/- "
पये मय ,याज के वाद को वापस करे
13. The aforesaid prayers made in para 52 of the judgment as recorded
by the Trial Court are alternative prayers made by the counsel for the
plaintiff at the time of final argument and it does not mean that the Trial
Court would grant the decree by giving all these three options to the
defendant. The Trial Court should have passed a specific decree by either
passing a decree of specific performance or refund of amount but it could not
have given the option to the defendant to act in the manner the defendant
wants. It is clear that the trial could by passing such an ambiguous decree has
abdicated the jurisdiction vested in the Trial Court to the defendant No.1,
and the defendant No.1 has been catapulted from status of litigant to the
status of the judge. The Trial Court has not properly applied its mind to the
fact that it is the Court which has to pass a decree and it is not the litigant
who has to decide that how the decree would be operated.
14. It is settled in law that in a suit for a specific performance for the
principles which are now well settled, the Court can either grant decree or
specific performance or can grant a decree for refund of token amount but
the Court has to pass a decree of either of the two. The Court cannot leave it
to the option of the defendant to either refund the token amount or to execute
sale deed. In certain cases, the Trial Court may while granting a decree of
specific performance may direct that upon failure of the plaintiff to pay
balance consideration within a stipulated period, the benefit of decree will go
away and only the token amount would be refunded by the defendant.
However, such optional decree at the option of the defendant could not have
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
11:53:06 AM
NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
7 FA-698-2018
been passed by the Trial Court, leving option to the defendant either to
execute sale deed, or to refund the advance money.
15. Even the order for refund of advance money is traceable to
Section 22 of the Specific Relief Act 1963 that requires a prayer to be made
in this behalf in the plaint, and that too, where specific performance is
refused. Section 22 reads as under :-
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; or
(b) any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or 1 [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.
(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.
16. It is seen that the Trial Court has given a categorical finding of fact
in response to issue No. 5 that there was readiness and willingness of the
plaintiff to perform his part of the agreement. The Trial Court has given
detailed findings of fact in paragraphs 20 to 43 of the judgment under
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
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NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
8 FA-698-2018
challenge. Once specifc performance was not being refused, there was no
question to grant relief of refund of advance money. This relief could not be
granted at all, once the Trial Court was proceeding to grant relief of specific
performance. It could be either of the two, but not both. In the plaint, there
was even no prayer made to order refund of avance amount in the
alternative. In absence of that, the Trial Court could not have granted that
relief at all.
17. Recently, it has been reiterated by the Hon'ble Supreme Court in
the case of K.R. Suresh Vs. R. Poornima, 2025 SCC Online SC 1014 , that in
absence of specific prayer for refund of advance money in the plaint, the
same cannot be granted. It was held as under :-
58. It is thus a settled position of law that the plaint may be amended at
any stage of the proceedings to enable the plaintiff to seek an
alternative relief, including that of refund of earnest money, and the
courts have been vested with wide judicial discretion to permit such
amendments. However, under Section 22 of the 1963 Act, the courts
cannot grant such relief suo moto, since the inclusion of the prayer
clause remains a sine qua non for the grant of such a relief. In other
words, when an “appropriate case” exists for seeking the said relief
under this provision, it must be specifically sought either in the
original plaint or by way of an amendment. This has been emphatically
held by this Court in Desh Raj v. Rohtash Singh, (2023) 3 SCC 714.
The relevant observations are reproduced hereunder .................
xx xx xx
61. Applying these principles to the facts of the case at hand, we find
ourselves unable to accept the submissions of the appellant that, in the
absence of a specific prayer for the refund of advance money paid by
them, Prayer (c) of the plaint which specifies the grant of “such other
relief(s) as the Hon'ble Court deems fit in the facts and circumstances
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NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
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of the case in the interest of justice”, can be construed to include a
prayer for such an alternative relief.
62. The reasoning set forth in the case of Manickam (supra) as regards
the relief of possession under Section 22(1)(a) of the 1963 Act, can be
appropriately imported in the present case to say that the relief of
refund of earnest money under Section 22(1)(b) is not a relief that
automatically flows from a decree for specific performance of a sale
agreement and must, therefore, be explicitly sought.
63. In our considered opinion, the law contained under Section 22(2)
of the 1963 Act is adequately broad and flexible to allow the appellant
to seek an amendment of the plaint for the said relief, even at the
appellate stage. However, no such application for an amendment of the
plaint was moved either before the trial court or during the course of
the first appeal before the High Court. That is to say, the appellant
never prayed for the refund of the advance money. Here, it would be
redundant to state that the law aids the vigilant, not those who sleep
over their rights.
18. In para 43 of the impugned judgment, the Trial Court has recorded
the assertion of the defendant that the defendant is willing to execute the sale
deed even today provided that he should be given interest of the remainder
sale consideration. Therefore, it is clear that the defendant had resiled from
the agreement only because the land prices must have shot up in a short
period of time and he repented on his decision to sell the land on a particular
consideration to the plaintiff. This is not a valid reason to resile from the
agreement and a party was entering into agreement as to enter into agreement
with open eyes and subsequent appreciation of prices of property cannot be a
ground to deny execution of sale deed and resile from the agreement to sale.
19. Here, on the case on hand, not even a single circumstance could
be pointed out by the defendant to disentitle the plaintiff to get a decree for
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
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NEUTRAL CITATION NO. 2026:MPHC-JBP:58078
10 FA-698-2018
specific performance of contract to sell. The decree for specific performance
of contract to sell cannot be denied when execution of deed is proved, on
whims of a Court. On the facts of the case, there is no rational not to grant
unconditional decree for specific performance of contract to sell. Even in the
appellate proceedings, no circumstance has been mentioned which may tilt
the fulcrum of balance in favour of the defendant. On the contrary, if a party
has to be blamed, then it would be the defendant who has come with untrue
and wrong allegations. He has come forward with frivolous defence and.
20. No cross objections or cross appeal has been filed by the defendant
against the judgment and decree under challenge whereby the suit has been
decreed by recording readiness and willingness of the plaintiff. It is the
plaintiff who is before this Court in this appeal, despite the suit being
decreed.
21. Therefore, in view of the aforesaid discussion, it is an appropriate
case where the judgement and decree under challenge needs to be modified
appropriately to do justice between the parties.
22. Consequently, the appeal is allowed in the following terms:-
(a) the findings in the impugned judgement are confirmed.
(b) the decree is modified to the extent that the plaintiff shall
pay the balance sale consideration of Rs.83.38 lakhs within a
period of two months from today or shall deposit the same before
the Executing Court within in the same period.
(c) upon such deposit being made, the defendant shall be at
liberty to withdraw the said amount and shall execute a sale deed
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
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11 FA-698-2018
in favor of the plaintiff within further period of 15 days and upon
failure of the defendant to execute the sale deed, then the plaintiff
shall be at liberty to get the sale deed executed through the Court
and get the possession delivered.
23. In the above terms, the appeal stands stands allowed and disposed
off.
(VIVEK JAIN)
JUDGE
veni
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 8/3/2026
11:53:06 AM