Punjab-Haryana High Court
Partap Singh vs Ranjit Singh And Others on 17 August, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
CR No. 3127 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No. 3127 of 2011 (O&M)
Date of decision: August 17, 2012
Partap Singh
...Petitioner
Versus
Ranjit Singh and others
...Respondents
CORAM:- HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. Kanwal Goyal, Advocate,
for the petitioner.
Mr. DV Sharma, Senior Advocate with
Ms. Shivani Sharma, Advocate,
for the respondents.
A.N. JINDAL, J.
On the strength of agreement to sell dated 16.2.2006, the plaintiff/petitioner filed a suit for recovery of earnest money to the tune of Rs. 28 lacs alongwith the interest to the tune of Rs. 3.08 lacs and further interest @ 1% per month from 16.2.2006 to 16.1.2007, but now by way of amendment he has sought to amend the plaint to seek possession by way of specific performance of the agreement and claiming the relief of recovery as alternative.
The crucial question, which arises for consideration in the present petition, is "whether the plaintiff, who had earlier claimed relief for recovery of earnest money, could now seek the relief of possession by way of specific performance of the agreement by way of amendment?" and "whether such amendment is based on new cause of action; amounts to inconsistent plea and prejudices the case of the defendant?" The trial court CR No. 3127 of 2011 2 declined the relief.
The factual background of the case is that earlier the suit was filed on 8.2.2007. Thereafter, he got amended the said suit by adding the plea of declaration whereby he challenged the sale deed executed by defendants No. 1 to 4 (hereafter referred to as the respondents), in favour of defendant No.5 on 16.1.2007. Issues in the case were framed on 19.3.2008. The plaintiff had availed five effective opportunities but he did not examine any witness. Thereafter, he moved the application on 19.9.2009 to seek the primary relief of possession by way of specific performance. The said application was declined on 4.2.2011.
The law regarding the amendment appears to be almost settled in the judgment delivered in Revajeetu Builders & Developers Versus Narayanswamy & Sons and others 2010 (1) RCR (Civil) 27, wherein various aspects of law relating to amendment have been discussed and some guidelines and parameters were laid down to be taken into consideration at the time of allowing or refusing the amendments. In the said case there was a direct issue as involved in the present case, "when once a suit for refund of money is filed then, should the court allow to amend the plaint for seeking possession?" The Apex Court in the said case, while treating the proposed amendment as based on new cause of action, observed that the High Court in the impugned judgment, after considering the rival contentions, came to the definite conclusion that the appellant while seeking permission to amend the plaint is trying to introduce a new case which was not his case in the original plaint and proposed amendment, if allowed, would certainly affect the rights of the respondents adversely. In the impugned judgment, the High Court also held that the appellant cannot be CR No. 3127 of 2011 3 permitted to withdraw the admissions made in the plaint as it would affect the rights of the respondents. The Apex Court further observed that the amendment of pleadings cannot be allowed so as to alter materially or substitute the cause of action or the nature of the claim. Though the provisions of amendment cannot be construed liberally but this principle does not apply to amendment of the written statement. In other words, though the principles of law relating to the amendment of written statement are liberal in so far as adding, substituting or altering a defence or taking inconsistent pleas but adding new cause of action in the plaint is objectionable.
The Apex Court also referred to the judgment delivered in the case of Ma Shwe Mya Vs. Maung Mo Hnaung, AIR 1922 Privy Council 249 wherein it was observed as under:-
"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."
In the instant case also, original claim of the petitioner was for recovery of earnest money but now by way of amendment, he wants to substitute the relief of possession by way of specific performance of the contract, which amounts to substituting a new cause of action, as it would change the earlier cause of action. Earlier the claim was set up to recover CR No. 3127 of 2011 4 the amount but now he wants to claim specific performance of the contract. It would amount to abandoning the original claim and, as such, amendment, if allowed, would certainly amount to substituting the relief as well as cause of action, which would cause serious prejudice to the defendants. This proposition of law arose before this Court in Roop Chand Chaudhari v. Smt. Ranjit Kumari, AIR 1991 (P&H) 212, wherein the court observed as under:-
"While a suit to claim first relief of specific performance with alternative relief of declaration/damages is permissible, converse is not true. Once a suit for return of the earnest money/advance or grant of damages is filed, such a plaintiff disentitles himself to the alternative relief of specific performance even if claimed in the suit. 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. This is primarily on the rule that a claim for return of earnest money/advance and/or damages can be based on repudiation of the contract for one reason or the other and once the contract is repudiated, the relief of specific performance would not be available either as an alternative relief nor would such a relief be admissible by amendment."
Following the law enunciated in Roop Chand Chaudhary (supra), a Single Bench of this Court in Rajinder Mohan Versus Manohar Lal 1999 (1) PLR 314 held that the plaintiff having filed a suit only for recovery of money and for interest is precluded to convert that suit on a later CR No. 3127 of 2011 5 date into suit for possession by way of specific performance by seeking amendment of the plaint.
It would also be pertinent to mention here that the plaintiff never exercised such diligence as could be expected from him to claim such relief in the original suit. Earlier when the plaintiff/petitioner sought amendment, he remained silent with regard to the amendment which he now proposes to seek. As such it would further delay adjudication of the question into the controversy.
Resultantly, this petition being devoid of merits is dismissed.
August 17, 2012 (A.N. JINDAL) prem JUDGE