Hazura Singh vs Dina Nath and Others

G.C. Garg, J.—This revision petition is directed against the order of the trial court whereby he declined the application under Order 6 Rule 17 of the CPC seeking amendment of the plaint.

Defendants-respondents entered into an agreement for the sale of property in the sum of Rs. 3,25,000/- and received Rs. 25,000/- as earnest money. However, before the sale deed could be executed, some dispute arose between the parties. The purchaser (plaintiff) filed a suit for the recovery of Rs. 75,000/-. It seems that the defendants sold the property, which was the subject matter of the agreement, even before the filing of the suit for recovery of Rs. 75,000/- to the sons of Joginder Singh.

During the pendency of the suit, plaintiff moved an application under Order 6 Rule 17 of the CPC for amendment of the plaint challenging the sale deed executed by the defendants in favour of the sons of Joginder Singh being fraudulent. This application was opposed by the defendants. The trial Court by order dated 15.3.1991 dismissed the application. Hence the present revision petition at the instance of the plaintiff.

Learned counsel for the petitioner submitted that the trial court acted with illegality and material irregularity in dismissing the application. The plaintiff was only seeking to bring the suit in a proper form namely suit for possession by specific performance and in the alternative for the recovery of the money. It was highlighted that the application was moved within the period of limitation and thus, there was no justification for the trial court to dismiss the application.

5 After hearing the learned counsel for the parties, I am of the opinion that this question is no more res-integra. In Roop Chand Chaudhari v. Smt. Ranjit Kumari (1990) 98 P.L.R. 384, it was held by a Division Bench of this Court that once a suit for return of earnest money/grant of damages is filed, such a plaintiff dis-entitles himself to the alternative relief of specific performance and thus, he cannot be allowed to amend his plaint later on to claim specific performance of the contract as first relief and return of the earnest money as an alternative relief.

In view of the above, no exception can be taken to the view taken by the trial court whereby the application moved by the plaintiff under Order 6 Rule 17 of the CPC seeding the alternative relief of specific performance by way of amendment of the plaint has been declined. In view of the above, this revision petition is dismissed, but with no order as to costs.

Parties through their counsel have been directed to appear before the trial court on 27.8.1997 for further proceedings in accordance with law.