RANJIT SINGH Vs. NIRMALA DEVI

JUDGEMENT

(1.) The petitioner is the defendent. He is aggrieved by the order dated 28.11.2002 whereby the plaintiff -respondent was permitted under 6 rule 17, Code of Civil Procedure, to amend his plaint for impleading the alternative relief.

(2.) Briefly, stated the facts of the case out of which the present revision has arisen are these. The parties are alleged to have entered into an agreement to sell on 23.10.1998 whereby the plaintiff respondent had agreed to sell the land measuring 0 -03 -23 Hects mts, out of khasra No.1058/753 in Mohal and Mauza Dhaleta, Tehsil Nurpur, District kangra for a consideration of Rs. 53,750/ -. A sum of Rs. 20,000/ - was paid as earnest money at the time of the agreement. According to the plaintiff - respondent the agreement was to be performed by 12.2.1999. According to the terms of the agreement, the defendant - petitioner had agreed to provide a 4 feet wide path to the plaintiff for approaching the land agreed to be sold. The land agreed to be sold was mortgaged with Kangra Co -operative and Primary Bank Limited, Nurpur which mortgage the defendant petitioner had agreed to redeem before affecting the sale in favour of the plaintiff - respondent. As per the plaintiff respondent subsequently she came to know that there was no other land of the defendant petitioner from where the path could be provided to the plaintiff respondent for reaching the land agreed to be sold. In fact, there was no possibility of providing any path. Pleading that the defendant respondent had fraudulently entered into an agreement to sell on 23. to 1998, the plaintiff - respondent on 6.3.1999 filed a suit for recovery of Rs.40,000/ - being the double the amount of earnest money paid by the plaintiff - respondent to the defendant - petitioner.

(3.) The learned Sub Judge 1st Class (1) Nurpur on 7.11.2001 dismissed the suit by holding that the plaintiff - respondent was not entitled to recover any amount from the defendant - petitioner. The learned Sub Judge further observed that the plaintiff respondent, if so advised, may file a suit for specific performance of the agreement in accordance with law.