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2002 DIGILAW 650 (ORI)

SANJUKTA MOHANTY v. MULLAH MAHAMMED RAHAUL AMIN

2002-10-09

B.P.DAS

body2002
B. P. DAS, J. ( 1 ) EVEN though notice was issued to the opposite party by registered post with A. D. . the same is returned back with an endorsement that the addressee refused to accept the same. The service of notice on the opposite party is treated as sufficient. ( 2 ) THIS revision application is directed against an order passed by the Civil Judge (S. D. ). Jajpur in Title Suit No. 212 of 1995 rejecting the petitioner's application under order 6, Rule 17, C. P. C. , wherein. ( 3 ) THE brief facts leading to this revision are as follows: the plaintiff, Sanjukta Mohanty (petitioner herein) filed a suit for a decree for specific performance of contract as against the present opposite party with the following relief:" (A) A decree for specific performance of the contract be passed, directing the defendant to transfer the ownership of the bus bearing registration no. OR-04-4989 in favour of the plaintiff as per M. V. Rules on receipts of the balance consideration of Rs. 1,00,000/-from the plaintiff, failing which the same be performed through Court; (b) cost of the suit be decreed in favour of the plaintiff, and (c) let such other reliefs be granted to the plaintif to which she is entitled to. " ( 4 ) ACCORDINGLY to the plaintiff-petitioner, the defendant-opposite party, who is owner of the bus bearing registration No. OR-04-4989 entered into an agreement with the plaintiff to sell the bus for a consideration of Rs. 4,00,000/- (Four lakhs) and as per the terms and conditions of the said agreement after initial payment of Rs. 1,00,000/-, the balance amount of Rs. 3,00,000/- shall be paid in different instalments. It was further stipulated in the agreement that on payment of Rs. 2,00,000/-, out of the balance amount of Rs. 3,00,000/-, the defendant-opposite party would bring the clearance certificate from the bank as the property was under hypothecation to the Bank, and thereafter on payment of the remaining one lakh, the defendant would transfer his ownership of the bus in favour of the plaintiff. These are the main terms inter alia, amongst the others. ( 5 ) ACCORDING to the plaintiff, though she has performed her part of contract, the defendant- opp. These are the main terms inter alia, amongst the others. ( 5 ) ACCORDING to the plaintiff, though she has performed her part of contract, the defendant- opp. party refused to obtain clearance certificate from the Bank and transfer the ownership of the bus, as per the terms and conditions stipulated in the agreement. This led the plaintiff to file the suit. After filing of the written statement by the defendant the suit was posted for hearing. According to the plaintiff although she has prayed for decree for specific performance of contract inadvertently she has omitted the prayer for an alternative relief regarding refund of money paid by her to the defendant, for which on 15-7-1999, she filed an application for amendment of the plaint with a prayer to incorporate the above mentioned alternative relief which was objected to by the defendant-opposite party on the ground of limitation. Upon hearing the parties, the trial Court rejected the aforesaid application on the observation that the alternative relief sought for by the plaintiff was available to be made intially when suit was filed which she failed to do, for which she is not entitled to pray for such relief at a belated stage as her claim is barred by limitation. ( 6 ) IN this regard it is profitable to quote the provisions of Section 22 of the Specific relief Act, 1963. "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 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. " ( 7 ) THE Court below in the impugned order relied upon the decision of the Ape- Court in Muni Lal vs. The Oriental Fire and General insurance Co. Ltd. and another where in the ape Court held as follows:"-- -- --the alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by the limitation during the pendency of the proceeding in the appellate court or the second appellate court. "but the case at hand stands on a different footing from the facts and circumstances of the case of Muni Lal (supra), wherein the amendment was sought for at the appellate stage. ( 8 ) IN the case of Jagadish Singh vs. Nathhu Singh, the Ape- Court in paragraph 10 of the judgment enunciated the following principles as regards Section 21 of the Act. "-- -- --so far as the proviso to Sub-section (5)of Section 21 is concerned, two positions must be kept clearly distinguished. If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the Court will allow the amendment at any stage of the proceeding. That is a claim for compensation falling under Section 21 of the Specific relief Act, 1963 and the amendment is one under the proviso to Subsection (5 ). But different and less liberal standards apply if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked. But different and less liberal standards apply if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked. This amendment is under the discipline of Rule 17, Order 6, C. P. C. The fact that Sub-section (4) in turn,, invoke Section 73 of the Contract Act for the principles of quantification and assessment of compensation does not obliterate this distinction. " ( 9 ) IN the present case, as it appears, the petitioner has not abandoned the claim for specific performance of contract, and asked for compensation in lieu of specific performance which was not specifically incorporated in the prayer for amendment for which the amendment was sought for. So the objection to the amendment on the ground of delay is devoid of merit. The proviso to Sub-section (2) of the Section 22 of the Specific Relief Act e-pressly empowers the Court to allow the plaintiff to amend his pleading to seek the relief for refund of money in case he has failed initially. That apart, Order 6 Rule 17, C. P. C. also provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and proper, but the said amendment should not change the nature and character of the suit. Here is a case where the plaintiff does not abandon her claim for the relief of specific performance but as an alternative remedy wants to amend the plaint and incorporate the relief for compensation and refund of money which cannot be said to be unjust and illegal. ( 10 ) ACCORDINGLY, the civil revision is allowed and the impugned order is set-aside. The amendment as sought for be carried out. Revision allowed.