IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 WP(C).No. 38055 of 2007(E) ------------------------------------- AGAINST THE ORDER DATED 30/11/2007 IN IA.3473/2007 IN OS.119/2007 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER: ------------------ PAUL,S/O.GEORGE,PATTAIKKA VEETTIL, NEELIAWARAMKARA,KALADY VILLAGE,ALUVA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENTS: ------------------------ 1. THANKACHAN,S/O.PAPPACHAN, VAREKKULAM HOUSE,VADAKKUMBHAGAM VILLAGE, CHENGAL DESOM,ALUVA TALUK. 2. MINI THANKACHAN,W/O.THANKACHAN,-DO- BY ADV. SRI.K.ANAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.38055/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PLAINT IN OS. 119/07 FILED ON 5.3.07. EXT.P2:- COPY OF THE WRITTEN STATEMENT FILED ON 6.4.07 BY THE RESPONDENTS IN O.S. 19/07. EXT.P3:- COPY OF THE APPLICATION FOR AMENDMENT FILED AS IA. 3473/07 IN OS. 119/07 DT. 18.9.07. EXT.P4:- COPY OF THE COUNTER FILED BY THE RESPONDENTS IN OS. 119/07 FILED ON19.10.07. EXT.P5:- COPY OF THE ORDER IN IA.3473/07 IN OS. 119/07 ON THE FILE OF THE PRINCIPAL SUB COURT, NORTH PARAVUR, DT. 30.11.07. /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== W.P.(C) No.38055 OF 2007 ===================== Dated this the 10th day of April 2008 JUDGMENT This writ petition is filed with a prayer to set aside the order in I.A.No.3473 of 2007 in O.S.No.119 of 2007. It is an application for amendment after the filing of the written statement and counter claim in the suit. The amendment sought for is to have a prayer for specific performance of a contract. The suit originally filed is one for return of advance amount on the breach of contract alleged to be committed by the defendants. Defendants entered appearance and filed their written statement and contended that they were always prepared to perform their part of the contract. Now the question for consideration is whether an application for amendment of this nature can be allowed. 2. The court below had referred to some decisions especially the decision in Ayissabi v. Gopala Konar(AIR 1989 Kerala 134). Now the cardinal point to be decided in a case of this nature is when a plaintiff sues for return of advance amount whether by subsequent amendment he can claim specific performance of the contract. Learned counsel for the petitioner would contend that since there is no recision of contract, the WP(C) 38055/2007 -:2:- prayer for specific performance will lie and therefore it has to be granted. Learned counsel for the respondents on the other hand had brought to my notice the decision of a Division Bench of the Pubjab & Haryana High Court reported in Roop Chand Chaudhari v. Ranjit Kumari(AIR 1991 P & H 212). It was a case which dealt with an amendment of plaint where also the suit was filed for return of earnest money and damages in which the plaintiff later wanted to add a claim for specific performance as first relief and in the alternative the other reliefs. The court held that 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 dis entitles 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. Learned counsel would submit that there is no WP(C) 38055/2007 -:3:- pleading in the plaint to the effect that the contract has been rescinded. When a suit for return of advance money is filed and it is alleged that there has been breach of contract committed by the other side it follows that the plaintiff does not want specific performance of contract and that is why he is filing a suit for return of advance amount. So the prayer in the suit itself is for return of advance amount and it amounts to repudiation of contract, the said contention of the learned counsel for the petitioner cannot be accepted. The Division Bench had considered the matter elaborately and I respectfully agree with the said view taken by the learned Judges of the said court. Just because there are certain averments in the written statement, it will not change the character of the plaint which is already instituted whereby the plaintiff has restricted for return of advance amount or breach of contract committed by the defendant. Unless the contract is put an end to, one will not be able to realise the contract amount which is already paid. I do not find any reason to interfere with the decision taken by the learned Sub Judge. Therefore the writ petition lacks merit and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/- WP(C) 38055/2007 -:4:-