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5. On receipt of notice of the suit, the defendant made an application for leave to defend. It is thereafter that the plaintiff filed an application u/O. 6 R. 17 of the Code for amendment of the plaint to seek a decree for specific performance and in the alternative, the relief which was claimed in the original plaint. The application for amendment was opposed by the defendant. The trial Court, by order dated 28-3-1989, allowed the amendment, on the finding that the cause of action would not change, nor would the proposed amendment tantamount to change the nature of the suit. It also observed that the Supreme Court has laid down that the amendment can be allowed even if it is proposed to set up a new case unless and until it can cause prejudice to the other party for which it cannot be compensated with costs. However, in the order, reference was also made to the judgment of S. P. Goyal, J. in Ram Chand v. Karamvir, 1987 PLJ 611.

6. The defendant felt aggrieved and came to this Court in revision under S. 115 of the Code of Civil Procedure and the case was placed before J. V. Gupta, J. on 7-8-1989 before whom on behalf of the plaintiff reliance was placed on a direct judgment of S. S. Kang, J. in Tarsem Singh v. Daljit Kaur, 1985 PLJ 534 in which the facts were more or less the same. S. S. Kang, J. had set aside the order of trial Court declining the amendment and allowed the amendment of the plaint to seek decree of specific performance as the first relief in spite of the fact that in the original suit relief of recovery of earnest money/ damages alone was sought. The learned Judge referred the matter to a larger Bench to consider the correctness of that judgment. That is how, the case has been placed before us.

9. We have gone through both the decisions of this Court and are of the opinion that both the decisions cannot stand and one has to be overruled. In order to resolve the controversy, the matter has to be deeply considered on legal principles.

10. The first case which has some relevance is Ardeshir v. Flora Sassoon, AIR 1928 PC 208 : (26 ALJ 1220). Therein, suit for specific performance was filed, but during trial of the suit, the plaintiff gave up the claim for specific performance and limited the relief to the return of earnest money/advance and damages. On the facts of the case, it was held that amendment of the suit for specific performance to claim damages could not be allowed. That was not a matter of rule, but on the peculiar facts of that case.

14. Accordingly, we are of the view that the decisions rendered in Sundaramayyar's case, Hari Krishna's case Ayissabi's case (supra), and a decision rendered by J. V. Gupta, J. in Jai Bhagwan's case (supra) are in consonance with the Supreme Court decisions and lay down correct law and the decision rendered by S. S. Kang, J. in Tarsem Singh's case (supra) does not lay down the correct law and we overrule the same.

15. We have carefully gone through the decision in Tarsem Singh's case (supra) and on the facts of that case, amendment could not be allowed in view of the decision referred to and followed by us. There is hardly any distinguishing feature. The bare facts are the same, namely, that originally a suit for return of the earnest money and damages was filed and later on amendment was sought to claim a decree for specific performance and in the alternative for return of the earnest money and payment of damages. Hence, there is no option left, but to overrule the decision rendered in Tarsem Singh's case (supra).