Rajinder Mohan vs Manohar Lal

G.C. Garg, J.—Manohar Lai filed a suit for recovery of Rs. 20,600/- (Rs. 20,000/- as principal and Rs. 600/- as interest) against Rajinder Mohan son of Shri Lal Chand.

It seems that defendant entered into an agreement with the plaintiff to sell some property. The plaintiff advanced a sum of Rs. 20,000/- to the defendant vide agreement dated 23.12.1993. However, for reasons best known to him instead of filing a suit for possession by way of specific performance of the agreement and in the alternative for recovery of damages, he filed a suit for recovery of the money i.e., the amount paid by him under the agreement as the earnest money with interest. After some time, the plaintiff moved an application under Order 6 Rule 17, Code of Civil Procedure, seeking amendment of the plaint by seeking relief of specific performance of the agreement i.e. for possession of the property agreed to be purchased and in the alternative for the recovery of Rs. 3,00,000/- i.e., Rs. 20,000/- as the earnest money and Rs. 2,80,000/- as damages.

The trial Court after hearing arguments in the application came to the conclusion that the proposed amendment did not in anyway change the nature of the suit as both the reliefs are based upon the agreement to sell which has been set up in the suit. The application was consequently allowed subject to payment of Rs. 50/- as costs. Hence this revision at the instance of the defendant.

Learned counsel for the petitioner submitted that the plaintiff having chosen to file a suit for recovery of money paid by him as earnest money with interest and by not filing a suit for possession by way of specific performance of the agreement, cannot be permitted to convert his suit for recovery of money into a suit for possession by way of specific performance of the agreement by seeking amendment of the plaint. The learned counsel, in support of his submission placed reliance upon a Division Bench Judgment in Roop Chand Chaudhary v. Smt. Ranjit Kumari 1990 98 P.L.R. 384 and also a Single Bench judgment of this Court in Ganda Singh Vs. Rampal Singh, .

Learned counsel for the respondent on the other hand submitted that all necessary averments as are required to be contained in the plaint in a suit for possession by way of specific performance of the contract, had been incorporated while filing the original suit for recovery of the money. Counsel further submitted that in paragraph 15 of the plaint it has been specifically stated that relief qua specific performance has not been relinquished. In the premises, the counsel submitted that plaintiff moved the application under Order 6 Rule 17 C.P.C., seeking amendment of the heading and prayer clause of the plaint. Counsel also submitted that he has already paid the Court fee as per the amended plaint and has also concluded the evidence and, therefore, the revision petition deserves to be dismissed.

After hearing learned counsel for the parties and having regard to the facts and circumstances of the case. I am of the opinion that the controversy raised in this revision petition is no longer res-integra and is clearly covered by the Division Bench Judgment of this Court in Ganda Singh''s case. The plaintiff having filed a suit only for the recovery of money and for the interest thereon is precluded to convert that suit on a later date, into a suit for possession by way of specific performance by seeking amendment of the plaint. This is what precisely was held by this Court in the two decisions referred to above.

In view of the above discussion, this revision petition is allowed. The application under Order 6 Rule 17 C.P.C. seeking amendment of the plaint is thus dismissed. The order under revision is set aside in so far as it relates to the amendment of the plaint. However, the parties are left to bear their own costs. The parties through their counsel are detected to appear before the trial court on 12.1.1999, the date already fixed, for further proceedings in accordance with law.