JOSEPH Vs. SIVARAMAN NAIR

JUDGEMENT

(1.) THE revision petitioner in both these cases is the plaintiff in a suit for specific performance. Through relief 'a' he prayed for a direction to the first defendant to fulfil his part of the contract dated 27. 7. 1992 and direct the second defendant to execute a sale deed in respect of the plaint schedule property in favour of the plaintiff at the cost of plaintiff. On noticing that the scheduled property was sold away in court auction in another case and purchased by a stranger and that there was little scope for getting specific performance in the circumstances, the plaintiff moved for amendment of relief 'a' aforementioned as follows: " Allowing the plaintiff to realise an amount of Rs. 95,000/- with interest at 12% from the date of suit till realisation from the second defendant and his assets. " On noticing that the aforesaid application was filed beyond three years from the date of agreement between the plaintiff and the first defendant which is 27. 7. 1992, the court below dismissed the application. According to the court below, the claim for recovery of money had become barred by limitation as on the date of the amendment application, namely, 23. 9. 1998 and hence the prayer for the amendment was inadmissible.

(2.) THE learned counsel for the revision petitioner submitted that in the instant case the amendment sought was for an alternative relief in respect of the very same cause of action as alleged in the plaint and that in the circumstances, the court below went wrong in disallowing the amendment sought for. Reliance was placed in this regard on the decision in A. K. Gupta & Sons v. Damodar Valley Corporation (AIR 1967 SC 96 ).

(3.) UNDER S. 22 (1) of the Specific Relief Act 1963, any person suing for 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 (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. Here also there is an embargo provided under S. 22 (2) to the effect that no relief of refund of deposit or earnest money shall be granted by the court unless it has been specifically claimed. The proviso to S. 22 (2) further directs 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.