IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 08.09.2010 C.R.No.5629 of 2010 (O&M) Maharaja Land Developer Pvt. Ltd. ...Petitioner Versus Smt. Puro and others ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. Bhupinder Singh Thind, Advocate, for the petitioner. HEMANT GUPTA, J. (Oral) The petitioner challenges the order passed by the learned trial Court on 30.10.2009, whereby an application filed by the petitioner for amendment of the plaint, so as to claim decree for specific performance, was declined and also the order dated 25.05.2010, whereby an application for withdrawal of the suit with permission to file fresh suit for specific performance was declined. The petitioner claims to have entered into an agreement to purchase land measuring 3 Kanals 4 Marlas on 17.12.2005 with respondent No.1. It is the case of the petitioner that in violation of the aforesaid agreement, defendant No.1 has executed sale deed dated 8.10.2007 in favour of the other defendants. In view of the said sale deed, the petitioner filed a suit for declaration and for injunction challenging the aforesaid sale deed. The petitioner did not claim decree for specific performance of the agreement dated 17.12.2005 in the said suit. The petitioner filed an application for amendment of the plaint so as to claim decree for specific C.R.No.5629 of 2010 (O&M) performance, which was dismissed by the learned trial Court on 30.10.2009. It was found that amendment in the plaint so as to claim decree for specific performance changes the complete nature of the suit and, therefore, such amendment cannot be granted. The petitioner has filed its suit for declaration on 8.12.2008 challenging sale deed dated 8.10.2007 alleging prior agreement to sell dated 17.12.2005. The application for amendment of the plaint was dismissed on 30.10.2009, whereas the application for withdrawl of the suit with permission to file a fresh suit for specific performance was dismissed on 25.05.2010. It is not the case of the petitioner that application for amendment of the plaint so as to claim decree for specific performance was filed within the period of limitation to seek specific performance of the agreement to sell dated 17.12.2005. Since the amendment has not been sought within the period of limitation, the plaintiff cannot be permitted to amend the plaint so as to claim decree for specific performance. Reliance may be placed upon Tarlok Singh Vs. Vijay Kumar Sabharwal (1996) 8 SCC 367, wherein it was held to the following effect : “….. In view of the position that the suit for perpetual injunction was converted into one for specific performance by order dated 25.8.1989, the suit must be deemed to have been instituted on 25.8.1989 and the suit was clearly barred by limitation. We find force in the stand of the appellant. We think that parties had, by agreement, determined the date for performance of the contract. Thereby limitation began to run from 6.4.1986. Suit merely for injunction laid on 23.12.1987 would not be of any avail nor the limitation began to run from that date. Suit for perpetual injunction is different from suit for specific performance. The suit for specific performance in fact was claimed by way of amendment application filed under Order 6, Rule 17 CPC on 12.9.1979. It will operate only on the application being ordered. Since the amendment was ordered 2 C.R.No.5629 of 2010 (O&M) on 25.8.1989 the crucial date would be the date on which the amendment was ordered by which date, admittedly, the suit is barred by limitation. The courts below, therefore, were not right in decreeing the suit.” In T.L.Muddukrishana and another Vs. Lalitha Ramchandra Rao (Smt.) (1997) 2 Supreme Court Cases 611, the Hon’ble Supreme Court dismissed the application for amendment of the plaint, when on the date of the filing of the application to seek amendment, the suit was barred by limitation. It was held to the following effect: “7. ….. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint, but it was not pleaded. It was sought to be amended, alongwith an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, 5.11.1992, the suit was barred by limitation.” A Division Bench of this Court in Roop Chand Chaudhari Vs. Smt. Ranjit Kumari 1990 (2) PLR 384, was seized of a case, where the prospective vendee filed a suit for recovery of earnest money, but by way of amendment sought a decree for specific performance of the agreement. It was held that once the plaintiff has filed a suit for return of earnest money, he dis-entitles himself to the alternative relief of specific performance. The Court found to the following effect : “13. ….. Keeping in view the two decision of the Supreme Court, we are of the opinion that the only conclusion is that 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. If that is so, 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 3 C.R.No.5629 of 2010 (O&M) 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 as was held in Prem Raj’s case (supra) by the Supreme Court, nor would such a relief be admissible by amendment as is sought to be done in this case.” In the present case, the plaintiff chose to file a suit for declaration challenging sale deed dated 08.10.2007 though it relies on an earlier agreement to sell. The petitioner had the opportunity to claim decree for specific performance when the suit was initially filled. Having failed to do so, the plaintiff dis-entitles itself to claim a decree for specific performance by way of amendment. In view of the said fact, the plaintiff cannot be permitted to claim by way of amendment, relief for decree for specific performance. Similarly, the plaintiff cannot be permitted to withdraw the suit with liberty to file fresh suit for claiming the relief of specific performance for the same reason, as is for declining the amendment in plaint. In view of the above, I do not find any patent illegality or irregularity in the order passed by the learned trial Court, which may warrant any interference by this Court in exercise of its revisional jurisdiction. Dismissed. 08.09.2010 (HEMANT GUPTA) Vimal JUDGE 4