IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD MONDAY, THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4675 OF 2009 Between: Sure Venkata Ramesh …Petitioner A n d Perumalla Kasi Rao ..Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4675OF 2009 ORDER: This civil revision petition is against the order dated 11-08-2009 in I.A.No.613 of 2009 in O.S.No.65 of 2007, on the file of the I-Additional District Judge, Ongole, wherein the said application filed by the petitioner herein, the plaintiff, under Order VI Rule 17 CPC for amendment of the plaint, was dismissed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. Perused the record. 3. The petitioner herein filed the suit for recovery of a sum of Rs.28,62,666/- which comprised the advance amount paid under the suit agreement of sale dated 30- 12-2006 by the plaintiff to the defendant in a sum of Rs.20,00,000/-, interest at 24% per annum in a sum of Rs.3,62,666/- and Rs.5,00,000/- towards reclamation charges. According to the plaintiff, he entered into an agreement with the defendant for purchase of an extent of Ac.15-00 of land in Sy.No.35/2 of Narsimhapuram village for Rs.1,03,90,000/- and that he paid an advance of Rs.20,00,000/- to the defendant on the same day. The plaintiff alleges that when he asked the defendant to show the land, the defendant has mischievously showed the land of another person and the plaintiff believing the same to be the land covered under the agreement of sale reclaimed the said land using poclainers and tractors for ten days and on the eleventh day the owner of the said land came and objected for the reclamation and threatened the plaintiff with criminal prosecution. The plaintiff, therefore, alleges that the defendant has fraudulently entered into an agreement of sale with the plaintiff and deceived him by showing some others land as that of the defendant. The plaintiff further alleges that when he demanded the defendant to produce pattadar passbooks and also the title deeds for the lands covered by the agreement of sale, the defendant evaded. According to the plaintiff, on enquiry, he came to know that there was no such land in existence at all as mentioned in the suit agreement of sale with the boundaries mentioned therein. The plaintiff thereafter filed a criminal complaint against the defendant in Markapur Town Police Station which was registered as Cr.No.32 of 2007. According to the plaintiff, he approached the defendant asking for return of the advance amount together with interest and also the reclamation charges of Rs.5,00,000/- , but the defendant was adamant. The plaintiff got issued a legal notice through Advocate on 13-02-2007 demanding return of the advance amount and reclamation charges and the same was returned unserved. The plaintiff, therefore, filed the suit for recovery of advance amount of Rs.20,00,000/- with interest @ 24% per annum and also reclamation charges of Rs.5,00,000/- . The defendant filed written statement contesting the suit. At that stage, the plaintiff filed the present application I.A.No.613 of 2009 seeking amendment of the plaint to the effect that a decree may be passed in his favour for specific performance of the suit agreement of sale directing the defendant to execute a registered sale deed and deliver possession and alternatively for recovery of Rs.50,00,000/-, comprising Rs.20,00,000/- being the advance amount, and Rs.30,00,000/- towards damages and reclamation charges. In the memo of proposed amendments appended to the petition, the plaintiff has set out several pleas in support of the relief of specific performance, which is now being asked for. The respondent/defendant filed a counter contesting the said application on the ground that the plaintiff, having elected to seek only return of the advance amount and reclamation charges, cannot now be permitted to amend the plaint for a different and distinct relief of specific performance and the proposed amendment would alter the cause of action and change the nature of the suit. 4. The plaintiff was aware at the time of filing of the plaint that the defendant was refusing to perform the contract. In fact, the plaintiff has chosen to repudiate the suit agreement on the ground that the defendant played fraud on him and involved in deception and misrepresentation and proposed to sell a non-existing land and when demanded showed some other land belonging to others and the plaintiff believing the same to be the land covered by the agreement reclaimed the said land spending about Rs.5,00,000/-. The plaintiff even gave a criminal complaint against the defendant regarding the alleged cheating and fraud. The plaintiff has, therefore, issued a notice prior to filing of the suit only for recovery of the advance amount and reclamation charges, as according to him the land covered by the agreement was not in existence at all. As the notice was returned unserved, the plaintiff filed the suit for the relief of recovery of advance amount and reclamation charges. Thus, as rightly observed by the learned Additional District Judge, the plaintiff has elected to seek the releif of recovery of advance amount and reclamation charges and did not intend to enforce performance of the agreement, as according to him the land covered by the agreement of sale was not in existence at all and the defendant played fraud on him. The proposed amendment, if allowed, would certainly alter the cause of action and also bring about qualitative and substantial change in the nature and character of the relief of specific performance and the alternative relief of recovery of damages are not consequential to the original relief of recovery of advance amount and reclamation charges, but they are distinct and independent reliefs altogether. May be the claim for return of the advance amount and reclamation charges are included in the alternative relief of damages which are now claimed in a sum of Rs.50,00,000/-, but the main relief now sought by way of amendment is specific performance of the agreement of sale, which according to the plaintiff himself was vitiated because of the fraud and deception alleged to have been played by the defendant. The very same agreement of sale which is branded by the plaintiff as a product of fraud and deception is now sought to be specifically enforced by way of amendment. 5. Admittedly, no demand was made prior to filing of the suit by the plaintiff on the defendant seeking specific performance of the suit agreement and by expressing his readiness and willingness to perform his part of the contract. No such averment was made in the original plaint also whereby the defendant had no occasion to meet such plea. The plaintiff now seeks the relief of specific performance by way of amendment on the ground that the defendant is still asserting his absolute rights over the property though his title is defective and boundaries are not correct. Thus, even now, as averred in the proposed amendment, the plaintiff is not convinced of the defendant’s title over the suit property or the correctness of the boundaries mentioned in the suit agreement of sale. Even now the plaintiff pleads that the title of defendant is defective and the boundaries mentioned in the agreement are not tallying and the land is not in existence. He, however, seeks the proposed amendment because the defendant is asserting his absolute title to the suit property. Thus, when according to the plaintiff, the defendant does not have any title to the suit property and the boundaries mentioned in the suit agreement are also not tallying and, therefore, the property is not in existence, the relief of specific performance now being prayed for does not make any sense. Be that as it may, the proposed amendment being in the nature of introducing a new case altogether based on new pleas and a different cause of action and seeking distinct and independent releifs and thereby totally altering the nature and character of the suit as filed originally, it is held that the proposed amendment is impermissible. 6. The impugned order, refusing to grant permission to amend the plaint, as proposed, does not, therefore, call for any interference by this Court. 7. In the result, the civil revision petition is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 25th April, 2011 Lrkm