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2003 DIGILAW 1502 (PNJ)

Kamal Kant v. Rajinder Kumar

2003-11-03

V.M.JAIN

body2003
Judgment V.M.Jain, J. 1. This revision petition has been filed by the plaintiff challenging the order dated 8.10.2001, passed by the trial court, whereby the application under Order 6 Rule 7, CPC, for amendment of the plaint was rejected. 2. The facts, which are relevant for the decision of the present petition are that the plaintiff had filed a suit for possession by way of specific performance of the agreement to sell dated 17.3.1992. The suit was contested by the defendant by filing the written statement. The case was at the stage of recording of evidence when the plaintiff filed application under Order 6 Rule 17, CPC so as to plead that in the alternative the plaintiff was entitled to the refund of the earnest money of Rs. 75,000/- plus Rs. 18,000/- total Rs. 93,000/- plus interest @ 24% p.a. from 17.3.1993 onwards till realisation and in the prayer clause, to plead in the alternative that the above mentioned relief may be awarded to the plaintiff under Section 21(2) and 21(3) of the Specific Relief Act and Section 22 of the said Act. This application of the plaintiff was contested by the defendant by filing reply. After hearing both the sides and perusing the record, the trial court dismissed the aforesaid application of the plaintiff for amendment of the plaint, vide order dated 8.10.2001. Aggrieved against the same, the plaintiff filed the present revision petition in this Court. 3. Notice of motion was issued. 4. I have heard learned counsel for the parties and have gone through the record carefully. 5. Learned counsel for the petitioner has submitted that the petitioner wanted to amend the plaint only to claim the relief of recovery of the earnest money etc., by way of alternative relief as provided under Sections 21(2), 21(3) and 22 of the Specific Relief Act. It has further been submitted that the learned trial court erred in law in refusing to allow the plaintiff to amend the plaint in that regard. On the other hand the learned counsel appearing for the defendant respondent submitted before me that the plaintiff could not be allowed to amend the plaint so as to claim the aforesaid relief as an alternative relief since this prayer was not made by the plaintiff at the initial stage when the suit for specific performance of the agreement to sell was filed. Ft has further been submitted that the alternative prayer for recovery has become time barred. 6. After hearing the learned counsel for the parties and perusing the record, in my opinion, there is considerable force in the submission made before me by the learned counsel for the petitioner. I am further of the opinion that there is no force in the submission made before me by the learned counsel for the respondent. 7. Sections 21 and 22 of the Specific Relief Act, 1963 , read as under: - 21. Power to award compensation in certain cases.- (1) In a suit for specific performance of a contract the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of such performance. (2) If, in any such suit, the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (3) If, in any such suit, the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case and that some compensation for breach of the contract should also be made to the plaintiff it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under this section, the Court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872. (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation 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 compensation. Explanation:- The circumstances that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section. 22. Explanation:- The circumstances that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section. 22. Power to grant relief for possession, partition, refund of earnest money, etc.-(i) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 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. 8. From a perusal of the provisions of Section 21 of the Act, it would be clear that in a suit for specific performance of a contract the plaintiff is also competent to claim compensation for its breach either in addition to or in substitution of such performance. It is further provided therein that if in any such suit the court decides that specific performance ought not to be granted but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, the court shall award him such compensation accordingly. It is further provided therein that no compensation shall be awarded under Section 21 of the Act unless the plaintiff has claimed such compensation in his plaint. It is further provided therein that where the plaintiff has not claimed any such compensation in the plaint, the court shall at any stage of the proceeding may allow him to amend the plaint on such terms as may be just for including a claim for such compensation. 9. It is further provided therein that where the plaintiff has not claimed any such compensation in the plaint, the court shall at any stage of the proceeding may allow him to amend the plaint on such terms as may be just for including a claim for such compensation. 9. From a perusal of Section 22 of the Act, it would be clear that notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 any person suing for the specific performance of a contract for the transfer of immovable property may in an appropriate case ask for possession or partition and separate possession of the property in addition to such performance or may ask for any other relief to which he may be entitled including their refund of any earnest money etc. in case his claim for specific performance is refused. It is further provided that no such relief shall be granted by the court unless it has been specifically claimed. It has further been 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. 10. In my opinion, from the provisions of Section 21 of the Specific Relief Act, 1963 it would be clear that the court is competent to grant compensation to the plaintiff for the breach of the contract by the defendant where the court decides not to grant the relief for specific performance and that if no such claim has been made, the Court shall at any stage of the proceeding allow him to amend the plaint for including a claim for such compensation. In the present case the plaintiff had originally filed a suit for specific performance of the agreement to sell dated 17.3.1992. However, he failed to seek the alternative relief of payment of compensation in case the decree for specific performance was not passed in his favour. For this purpose the plaintiff filed an application seeking to amend the plaint and to claim the said relief as an alternative relief. In my opinion, this prayer made on behalf of the plaintiff was in consonance with the provisions of Section 21 of the Specific Relief Act. For this purpose the plaintiff filed an application seeking to amend the plaint and to claim the said relief as an alternative relief. In my opinion, this prayer made on behalf of the plaintiff was in consonance with the provisions of Section 21 of the Specific Relief Act. I am further of the opinion that the learned trial court was obliged to allow the plaintiff to amend the plaint so as to include the aforesaid relief of compensation as an alternative relief to the claim for specific performance of the agreement to sell. I am further of the opinion that in such circumstances there would be no question of such a claim being barred by time especially when Section 21 of the Specific Relief Act specifically empower the court to allow such amendment so as to claim such relief for compensation in a suit for specific performance. In this view of the matter, in my opinion, no case was made out for refusing the plaintiff to amend the plaint in this regard. I am further of the opinion that the learned trial court erred in law in refusing the plaintiff to amend the plaint so as to claim the relief of compensation as an alternative prayer. 11. Learned counsel appearing for the petitioner also submitted before me that evidence of both the parties has already been recorded and that the case is at the stage of rebuttal and arguments. It is further submitted that in case amendment is allowed the plaintiff would not produce any evidence to the amended plaint and the evidence already recorded could be considered in respect of amended plaint in view of the fact that the plaintiff is only claiming compensation as an alternative relief in the suit for specific performance. 12. In view of the detailed discussion above, order dated 8.10.2001 passed by the trial court is set aside and the plaintiff petitioner is allowed to amend the plaint so as to claim recovery of Rs. 75,000/- plus Rs. 18,000/- plus interest as compensation by way of alternative relief. However, this amendment shall be subject to payment of Rs. 10000/-as costs.