S JAFFAR ALI Vs. SHEIK DASTHAGIR

JUDGEMENT

(1.) THE respondent/defendant in I. A. No. 79 of 2007 in A. S. No. 90 of 2006 before the Principal District Judge, Erode, is the revision petitioner herein. The said application was filed under Order VI Rule 17 of CPC by the plaintiff/appellant in A. S. No. 90 of 2006 to amend the plaint. The learned First Appellate Judge has dismissed the petition, which necessitated the petitioner in I. A. NO. 79 of 2007 to prefer this revision. The petitioner has filed O. S. No. 86 of 2002 before the learned Subordinate Judge, Gobichetipalayam, for specific performance of a contract under the deed of agreement of sale dated 10. 7. 2001. On contest, the learned Trial Judge had dismissed the suit. Aggrieved by the findings of the learned trial Judge, the plaintiff preferred A. S. No. 90 of 2006 before the Prinipal District Judge, Erode. Pending appeal, the plaintiff filed I. A. No. 79 of 2007 under Order VI Rule 17 CPC to amend the plaint in order to incorporate the prayer for refund of the advance amount paid under the agreement of sale dated 10. 7. 2001.

(2.) THE learned counsel for the revision petitioner relying on Section 22 (b) of the Specific Relief Act, 1963, would contend that the plaintiff is entitled to the relief of refund of the earnest money or deposit paid under the agreement of sale incase his claim for specific performance is refused.

(3.) (A)THE learned counsel for the respondents relying on the following ratio decidendi would contend that since the claim for refund of the advance amount has already been barred by limitation such a relief under Order VI Rule 17 CPC cannot be granted. It is pertinent to note here that while dismissing I. A. No. 79 of 2007 the learned first appellate Judge has not given a findings that the claim is barred by limitation even though there is a plea in the counter filed by the respondent. The first ratio on which reliance is placed by the learned counsel for the respondents is 2001 (4) CTC 174 (Tamil Nadu Electricity Board, Anna Salai, Chennai-2, rep by its Chairman and another Vs. The Tamil Nadu Alloy Foundry Co. Ltd. , Plots No. 21 and 33, SIPCOT Complex, Hosur and 3 others), wherein it has been held that application for amendment filed in July 1998 to substitute figure of Rs. 1295. 81 lakhs in the place of Rs. 10 lakhs cannot be allowed since the claim is barred by limitation. The facts of the said case in brief are that: "the appellant as the plaintiff in the suit filed an application to amend the plaint to substitute the figure of Rs. 1295. 81 lakhs in the place of Rs. 10 lakhs as the amount of damages claimed. The said application was filed in July 1998 though the suit had been filed five years earlier in March 1993" under such circumstances, a Division Bench of this Court has held that the application for amendment cannot be filed beyond the period of limitation. 3 (b)The next citation relied on by the learned counsel appearing for the respondent is 2005 (4) CTC 734 (S. Kuppusamy Vs. P. K. Subramani and Others ). The facts of the said case in brief are that:-