JAI BHAGWAN AND OTHERS Vs. RAJA RAM

JUDGEMENT

(1.) This revision petition is directed against the order of the Trial Court dated Nov. 20, 1987, whereby die application for the amendment of the plaint has been allowed on payment of Rs. 200.00 as costs.

(2.) The plaintiff filed the suit for the return of money advanced and for damages to the tune of Rs. 30,000.00. He specifically stated in paragraph 15 of the plaint that h? had filed the suit for the recovery of money only as it may take long time to obtain a decree for the specific performance of the contract of sale. The suit was filed on Dec. 3, 1982. On June 8, 1984, the plaintiff moved an application for seeking amendment in the plaint so as to claim the relief of specific performance which according to him, was omitted inadvertently due to oversight at the time of the drafting of the original plaint. That application was resisted by the defendants inter alia on the ground that the claim for specific performance was intentionally relinquished by the plaintiff and once a particular claim has been abandoned by the plaintiff he cannot sue the defendant for that claim. He also pleaded that the plaintiff was not ready and willing to perform his part of the contract by making the payment of balance sale consideration. The Trial Court relying upon Tarsem Singh Vs. Daljit Kaur, 1985 (2) R.L.R. 221 allowed the amendment application.

(3.) The learned Counsel for the petitioners submitted that in view of paragraph 15 of the plaint where the relief for specific performance was intentionally abandoned, no amendment could be sought later in that behalf. Reference was made to Hari Krishna Vs. K.C. Gupta, AIR 1949 All. 440, Ardeshir H. Mama Vs. Flora Sassoon, AIR 1928 P.C. 208 and D. Anjaneyulu Vs. D. Venkata Seshaiah, AIR 1987 S.C. 1641wherein it was held by the Supreme Court that where costly structures have been raised already on the disputed land by the vendor, grant of specific performance would result in special hardship to the vendor and in such a case the payment of the value thereof was the proper remedy.