GANDA SINGH Vs. RAMPAL SINGH

JUDGEMENT

(1.) SUIT for recovery of Rs. 3,680/- was filed against the petitioner for realisation of amount on the basis of agreement dated 22. 9. 1982. During the pendency of the suit, an application was made under Order 6, Rule 17 of the Code of Civil Procedure, for amendment of the plaint By the proposed amendment, plaintiff desired to include the relief of specific performance of the contract besides the relief of recovery which he had already sought. Trial Court allowed the prayer of the plaintiff and in consequence permitted him to convert the suit from one of recovery to specific performance of the contract The order of the trial Court is being impugned in the present revision petition.

(2.) HAVING heared the learned counsel for the parties, I am of the view that the impugned order cannot be sustained. Plaintiff instead of seeking relief of specific performance, chose to file suit for recovery of the earnest money. By filing a suit for recovery, he himself repudiated the contract and therefore, by way of amendment of the plaint, he cannot be allowed to claim specific performance, of the contract which doea not exist. This Court in Roop Chand Chaudhary v. Ranjit Kumari, (1990-2) 98 P. L. R. 384 held that once the suit is filed for return of the earnest money/advance or grant of damages for not executing the sale-deed within the specified time, such a plaintiff disentitles himself to the alternative relief of specific performance even if claimed in the suit. If that is, so. he cannot be allowed to amend his plaint later on to claim specific performance of the contract as the first relief and return of earnest money/advance and/or damages as an alternative relief. Such a relief of specific performance would not be available either as an alternative relief, nor such a relief would be admissible by amendment.

(3.) THE judgment in Roop Chand Chaudhary's case (supra) is fully applicable to the facts of the present case. Counsel for the respondent has not been able to show as to how the judgment in the aforesaid case is distinguishable on the facts of the present case.