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2003 DIGILAW 359 (HP)

RANJIT SINGH v. NIRMALA DEVI

2003-12-03

R.L.KHURANA

body2003
JUDGMENT R.L. Khurana, J. (Oral) - The petitioner is the defendent. He is aggrieved by the order dated 28.11.2002 whereby the plaintiff-respondent was permitted under 6 rule 17, Code of Civil Procedure, to amend his plaint for impleading the alternative relief. 2. Briefly, stated the facts of the case out of which the present revision has arisen are these. The parties are alleged to have entered into an agreement to sell on 23.10.1998 whereby the plaintiff respondent had agreed to sell the land measuring 0-03-23 Hects mts, out of khasra No.1058/753 in Mohal and Mauza Dhaleta, Tehsil Nurpur, District kangra for a consideration of Rs. 53,750/-. A sum of Rs. 20,000/- was paid as earnest money at the time of the agreement. According to the plaintiff - respondent the agreement was to be performed by 12.2.1999. According to the terms of the agreement, the defendant - petitioner had agreed to provide a 4 feet wide path to the plaintiff for approaching the land agreed to be sold. The land agreed to be sold was mortgaged with Kangra Co-operative and Primary Bank Limited, Nurpur which mortgage the defendant petitioner had agreed to redeem before affecting the sale in favour of the plaintiff - respondent. As per the plaintiff respondent subsequently she came to know that there was no other land of the defendant petitioner from where the path could be provided to the plaintiff respondent for reaching the land agreed to be sold. In fact, there was no possibility of providing any path. Pleading that the defendant respondent had fraudulently entered into an agreement to sell on 23. to 1998, the plaintiff - respondent on 6.3.1999 filed a suit for recovery of Rs.40,000/- being the double the amount of earnest money paid by the plaintiff - respondent to the defendant - petitioner. 3. The learned Sub Judge 1st Class (1) Nurpur on 7.11.2001 dismissed the suit by holding that the plaintiff - respondent was not entitled to recover any amount from the defendant - petitioner. The learned Sub Judge further observed that the plaintiff respondent, if so advised, may file a suit for specific performance of the agreement in accordance with law. 4. Feeling aggrieved, the plaintiff-respondent went up in appeal before the learned District Judge, Kangra at Dharamsala being Civil Appeal no. 184-N/13 of 2001. The learned Sub Judge further observed that the plaintiff respondent, if so advised, may file a suit for specific performance of the agreement in accordance with law. 4. Feeling aggrieved, the plaintiff-respondent went up in appeal before the learned District Judge, Kangra at Dharamsala being Civil Appeal no. 184-N/13 of 2001. In such appeal, an application came to be made by the plaintiff-respondent under Order 6 Rule 17, Code of Civil Procedure, for the amendment of the plaint. The amendment sought for was to add the relief of possession by way of specific performance. The resultant effect of such amendment was to change the suit for the recovery of Rs. 40,000/- to the one for possession by specific performance of contract and in the alternative for recovery of Rs. 40,000/-. The learned District Judge vide the impugned order, allowed the amendment as prayed for. Hence the present revision petition at the instance of the defendant-petitioner. 5. It was contended by the learned Counsel for the defendant-petitioner that the amendment prayed for could not have been allowed by the learned Court below. It was contended that the plaintiff-respondent had initially filed a suit for the recovery of double the amount of earnest money paid by him at the time of the agreement. The very basis for a suit for recovery of the earnest money is the repudiation of the agreement to sell. Once the plaintiff-respondent has repudiated the agreement to sell and has claimed the refund of the earnest money, he cannot be permitted then to ask for specific performance of such agreement which stood repudiated by him. 6. In Prem Raj v. The D.L.F. Housing and Construction (P) Ltd. and another, AIR 1968 SC 1355, a question arose whether the plaintiff who had filed a suit for declaration that a particular contract was void could be permitted to amend his plaint to include the alternative prayer for specific performance of such contract, it was held that such a course was not permissible. It was further held that Section 37 of the Specific Relief Act, 1877 corresponding to Section 29 of the Specific Relief Act, 1963 expressly provides that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided. It was further held that Section 37 of the Specific Relief Act, 1877 corresponding to Section 29 of the Specific Relief Act, 1963 expressly provides that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided. It is, therefore, not open to the plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance. 7. In Jawahar Lal Wadhwa and another v. Haripada Chakroberty, AIR 1989 SC 606, it was held that whereas party to a contract commits a anticipatory breach of the same, the other party to the contract may treat the breach as putting a end to the contract and sue for damages but in that event he cannot ask for specific performance. 8. A question similar to the one in the present case also arose for consideration before a Division Bench of Punjab and Haryana High Court in Roop Chand Chaudhari v. Smt. Ranjit Kumari, 1990 PLJ 505. In the case before a Division Bench of Punjab and Haryana High Court, a suit was filed by the plaintiff therein for the recovery of the earnest money and damages. During the pendency of such suit, an application for amendment of the plaint came to be filed for impleading the plea of specific performance of the agreement in the alternative. Such amendment was allowed by the learned trial Court. In revision, the Division Bench of the Punjab and Haryana High Court by following the ratio as laid by the Honble Supreme Court in the above referred to two cases held that such an amendment could not be allowed/The Division Bench also came to the conclusion that by allowing such amendment, the trial Court had committed illegality in the exercise of its jurisdiction and the High Court in revisional jurisdiction can set the matter right since by allowing such amendment manifest injustice was going to be caused to the aggrieved party by the impugned order. 9. Following the above stated settled principle of law, the impugned order in the present case also cannot fee sustained and the same is liable to be set aside. The plaintiff-respondent by bringing to be set aside. 9. Following the above stated settled principle of law, the impugned order in the present case also cannot fee sustained and the same is liable to be set aside. The plaintiff-respondent by bringing to be set aside. The plaintiff-respondent by bringing a suit for recovery of double the amount of earnest money paid by him at the time of agreement had proceeded on the basis of rescission of the agreement to sell and as such he cannot be permitted to turn about and pray for specific performance of such agreement which stood rescinded by him by bringing a suit for recovery of double the amount of earnest money. 10. Resultantly, the present revision petition is allowed and the impugned order dated 28.11.2002 of the learned District Judge, is set aside. The learned District Judge shall proceed to dispose of the appeal on the basis of the original pleadings of the parties. 11. The parties through their counsel are directed to appear before the learned District Judge, Kangra at Dharamsala on 24.4.2003. The record complete in all respects be returned forthwith to the court below so as to reach well before the date fixed.