IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 36123 of 2008(A) -------------------------------------- OS.177/2006 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): --------------------- K. RADHAKRISHNAN, S/O. LATE PARAMESWARAN NAIR, RESIDING AT 'KRISHNASREE', VIDHYANAGAR EAST, AKATHETHARA AMSOM, PALAKAD TALUK BY MR.V.CHITAMBARESH, SENIOR ADVOCATE ADV. MR.T.C.SURESH MENON MR.JIBU P THOMAS MR.P.S.APPU RESPONDENT(S): ------------------------ 1. V. PANKAJAM , W/O. V. BALAN, 2. V. BALAN, S/O. VASU BOTH ARE RESIDING AT ANGAVALPARAMBIL, AKATHETHARA AMSOM, PALAKKAD TALUK. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 36123/2008-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION IN I.A. NO.4292/2007 FILED UNDER ORDER VI RULE 17 C.P.C. DATED 01/11/2007. EXT.P2: COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT TO I.A. NO.4292/2007 DATED 02/02/2008. EXT.P3: COPY OF THE ORDER IN I.A. NO.4292/2007 IN O.S. NO.177/2006 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 2G5/07/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.36123 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 16th June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1.To call for the records leading to the passing of Ext.P3 order and set aside the same. 2.To allow I.A.No.4292/07l in O.S.No.177/2006 on the file of the Court of the Subordinate Judge of Palakkad. 3.To issue a writ in the nature of mandamus directing the court below to adjudicate on the amended relief incorporated. 4.To issue such other writ, order or direction as this honourable court deems fit and proper in the circumstances of the case. 2. Petitioner is the plaintiff in O.S.No.177/06 on the file of the Sub Court, Palakkad. Suit was one for recovery of money on the basis of an agreement of sale. Plaintiff moved an application for amending the suit to have the relief of specific performance of the agreement of sale. The learned Munsiff dismissed that application holding that it will change the character of the suit. Ext.P3 is copy of that order. Correctness and propriety of Ext.P3 order is challenged in the Writ Petition invoking the supervisory jurisdiction of this court vested W.P.C.No.36123/08 - 2 - under Article 227 of the Constitution. 2. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the scope of the amendment sought for in a suit for money, to have a further relief of specific performance, both based on an agreement of sale, I find no impropriety or illegality in Ext.P3 order passed by the learned Munsiff declining that amendment. Once a suit for return of earnest money or advance or damages is filed on the basis of an agreement of sale, it indicates that the contract is repudiated for one reason or the other. Once the contract is repudiated, the relief for specific performance could not be available even as an alternative relief. So much so, in the nature of the present suit and the relief claimed thereunder, allowing of the proposed amendment does not arise. The learned counsel for the petitioner urged for reserving his right to have specific performance of the agreement by a separate suit, if the proposed amendment in the suit already filed is found not entertainable. I make it clear that Ext.P3 order, and the judgment passed in this Writ Petition over that order, will not affect the right of the plaintiff, if any, to sue for specific performance by a separate suit, W.P.C.No.36123/08 - 3 - if so provided by law. Subject to the above observation, the Writ Petition is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE