81 V D 1 CR No1395 of2008 1 IN THE HIGH COURT OF PUNJAB S HARYANA CHANDIGARH CR No1395 of2008 Date of decision March l l 2009 Sm KaramjitKaur and others Petitioners Versus RachpalSinghand another espondents CORAM HONBLE MRJUSTICE K KANNAN 1 r Present MiSalil SagarSI Advocate with 0 Mt SamrathSagarAdvocate for the petitioner l MrAshok AggarwalSrAdvocate with 0 MrAukul AggarwalAdvocate for the respondents St11 Z K KannanJe 2 r 1 The defendant who contended that the suit as framedwas not maintainabiewas faced with the application for amendment c8 of the plaintactingon his objectionat the instance of the plaintiff The a7 amendmentwas allowed and the defendant is in revision before this Coun Z 2 The suit had been filed for mandatoryinjunction for enforcementof an agreementof sale The objectionby the defendant in his written statement was that the suit was not maintainable and the appropriateremedy of the plaintiffwas to file a suit for specific peiformance The agreementWas dated 122004 and the date of completion of the agreementwas 2522004 After the statementwas Oled the plaintiffsoughtfor amendment of the plaintseekingfor a decree for specificpetformance and for deliverybesides other consequential reliefs At that time defendant objectedto the amendment on the ground that initiaiiythe institution of the suit for mandatoryinjunctionwas not maintainable and an interlocutoty appiicationOled Ill such an incompetent llJ Uma 2012.12.27 18: 45 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 82 CR Nol 395 of 2008 2 suit was actuallyuntenable The trial Court rejectedthe objectionand orderedthe amendment 3 Learned Senior counsel appearingfor the revision petitioner contends makingreference to Section 41 11of the SpeciOc Relief Act which states wiil not be grantedwhere adequaterelief by way of damagesIS available the suit was not maintainable and thereforethe amendmentcould also be not maintained He has referred 1 01 to several decisions of the SupremeCoun and other Couns which have 0 ruled out that when actuallyalternativeemcacious remedyavailable the 0 relief of injunctionoughtnot to be granted Reference to such a decision lD is meaningIess if we must appreciatethat the plaintiffwas not after all doggedlypersistingin continuationof an incompetent suit He realized his Z own frame of suit to be improperand broughtan amendment of the pleadings to conform to Iawbyseekingfor relieffor speciOcperformance of r theagreementinstead of couchingthe prayer for a mandatoryinjunction of c8 enforcement of the agreementPerhaps initiallythe plaintiHhad been wronglyadvised to save on the Court fee by seekingrelief of mandatory m Z but Iater on he had attemptedto rectifyit by amendingthe prayer as one for specificpetformancebyvaluingthe relief on the value as stipulatedunder the agreementand payingad valorem Court fee The defendantwho had objectedto the frame of the suit of the valuation would be estoppedby his OWll to contend that the plaintiH cannot amendthe pleadings 4 The contention on behalf of the revision petitioner thatthe amendmentcould not itself be broughtin an incompetent suit is not merelyillogicalbut untenable No interim relief was soughtkeepingthe incompetent suit as pending On the other hand the incompetent relief was soughtto be substituted by a competentrelief in the manner even urgedby the defendant in his written statement The fallacyin the Uma 2012.12.27 18: 45 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 83 1 CRNo1395 of2008 3 of the revision petitionerstems from the fact that the suit for injunctionas it had been filed continues to remain as such On the contrarybythe amendment the pleatakes a new Ieaf it becomes one for specificperformanceIf onlythe objectionhad been that the amendment was broughtbeyondthe periodof Iimitation there could have been some merit in such a contention The applicationfor amendment for the substitutedrelief was made well within three years from the date of the 1 01 for specifiedfor petformance was soughtand therefore no 0 prejudice could even be said to be caused to the defendant 1 5 The Civil revision petitionis whollywithout merit tD and dismissedwith costs assessed at Rs100001 I Z 2 1K KANNANI r4 JUDGE I c8 Marchll 2009 11 archana 0 7 8 4 Z eY t rt I 0 Uma 2012.12.27 18: 45 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document