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Judgment
4 paragraphs · 200 wordsHemant Gupta, J.
The challenge in the present revision is to the order dated 7.2.1994 passed by the learned trial Court, whereby the plaintiff was allowed to amend the suit for recovery of the earnest money paid in terms of the agreement dated 7.9.1993 into that of suit for specific performance of such agreement of sale.
The plaintiff, who has filed a suit for recovery of earnest money advanced in terms of agreement of sale is not entitled to claim decree for specific performance by way of amendment in question, which is not res integra. It has been held by a Division Bench of this Court in Roop Chand Choudhari v. Ranjit Kumar, 1991(1) R.R.R. 295 : 1990 PLJ 505, that filing of a suit for recovery, in fact, amounts to relinquishment of the relief of specific performance and, therefore, the plaintiff cannot seek for specific performance of a contract. In view of the said judgment, the order passed by the learned trial Court is not sustainable in law and the same is therefore, set aside.
Parties through their counsel is directed to appear before the learned trial Court on 27.2.2006, further proceedings in accordance with law.