Civil Revision No. 2235 of 2009 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 2235 of 2009 (O&M)
Date of decision: 03.08.2009
Anguri Devi
....Petitioner
versus
Paramjit Kaur
....Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. N.K. Manchanda, Advocate,
for the petitioner.
***
VINOD K. SHARMA, J. (ORAL)
CM No. 9411-CII of 2009
Allowed. The applicant-petitioner is exempted from filing the
certified copies of Annexures P-1 and P-4, and permitted to place on
record the true copies thereof.
CR No. 2235 of 2009
This revision petition is directed against the order dated
24.3.2009, passed by the learned Civil Judge (Senior Division), Moga,
dismissing an application moved by the petitioner under Order 6 Rule
17 of the Code of Civil Procedure for amendment of the suit.
The plaintiff/petitioner filed a suit for recovery of Rs.1,60,000/-
i.e. Rs.80,000/- as refund of earnest money, and another Rs.80,000/- as
damages for breach of contract/agreement to sell dated 15.6.2002.
The petitioner entered into an agreement dated 15.6.2002
with the respondent, the adopted daughter of Chiranji Lal S/o Mangal
Ram. She claimed her ownership on the basis of ‘Will’ executed in her
favour. However, there was a dispute qua this land with one Vinod
Kumar, who also claimed himself, to be legal heir of Chiranji Lal and
Civil Revision No. 2235 of 2009 (O&M)
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had set up a ‘Will’ in his favour. On the basis of said ‘Will’, he got
mutation sanctioned in his favour.
The plaintiff/petitioner in view of the fact that mutation was
sanctioned in favour of Vinod Kumar, filed a suit for recovery of earnest
money along with damages, by claiming that the respondent did not
have any titled to the property, which she had agreed to sell.
On an appeal by the respondent, the appellate authority
reversed the order of mutation and held respondent to be the owner of
the property on the basis of ‘Will’ executed in her favour.
The petitioner, thereafter moved an application under Order 6
Rule 17 of the Code of Civil Procedure for amendment of the suit, for
claiming specific performance of agreement to sell.
The learned trial Court dismissed the application by placing
reliance on the judgment of this Court in Hazura Singh Vs. Dina Nath
and others, 1997(2) PLJ 638 and the Division Bench judgment of this
Court in Roop Chand Chaudhari Vs. Smt. Ranjit Kumari, 1990 PLJ
505, wherein this Court has laid down, that amendment of a plaint to
seek decree of specific performance of contract in a suit for refund of
advance and equal sum by way of damages and interest for not
executing the sale deed within specified time, cannot be allowed.
It was held, that once the plaintiff files a suit for recovery of
earnest money and damages, he is not entitled to seek alternative relief
of specific performance even if it was claimed in the suit. The
application was rejected being not maintainable.
The learned counsel for the petitioner vehemently argued,
that the impugned order cannot be sustained, as the order passed by
the learned trial Court is contrary to the law laid down by the Hon’ble
Supreme Court in Puran Ram Vs. Bhaguram and another, 2008(2)
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RCR (Civil) 499.
The contention of the learned counsel for the petitioner is, that
the Court has the discretion to allow an application for amendment of
the plaint even where the relief sought to be added by way of
amendment is barred by limitation. Furthermore, that amendment,
which subserves the ultimate cause of justice and avoid further
litigation, should normally be allowed.
The contention further was that the amendment should have
been allowed, as the petitioner had right to maintain the suit for specific
performance, and the amendment was to save multiplicity of
proceedings.
The contentions raised by the learned counsel for the
petitioner cannot be accepted. The Hon’ble Supreme Court has not laid
down that the relief, which is not available to a party can also be sought
by way of amendment. Nor it can be said that the amendment was to
avoid multiplicity of proceedings, as in view of law laid down by this
Court, relief of specific performance is not available now. The order
passed by the learned trial Court cannot be faulted with, being in
consonance with law laid down by this Court in Roop Chand
Chaudhari Vs. Smt. Ranjit Kumari (supra).
No merit.
Dismissed.
(Vinod K. Sharma)
August 03, 2009 Judge
R.S.