IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WP(C).No. 23491 of 2009(O) --------------------------------------- OS.73/2007 of SUB COURT, TIRUR .................... PETITIONER(S): --------------------- V.G. VINODKUMAR, S/O. GOPALAN, AGED 38 YEARS, VIJAYA NIVAS, P.O. EDAYOOR, MALAPPURAM DIST. BY ADV. MR.K.RAMACHANDRAN MR.S.SREEDEV RESPONDENT(S): ------------------------- 1. SAIDALAVI, S/O. SAIDALIKUTTY, KUTHUKALLINGAL HOUSE, KATTIPPARUTHI AMSOM, KULAMANGALAM DESOM, P.O. KATTIPPARUTHI, MALAPPURAM DIST. 2. KUNHIPOCKER, S/O. LATE KUNHEATHU PANATHODI HOUSE DO...DO.... 3. SAIDUTTY, S/O. LATE MAMMIKUTTY, PANATHODI HOUSE DO....DO..... 4. NOUSHAD, S/O. LATE KHALID, CHALLAPPURATH HOUSE, DO..DO... R1 TO R4 BY ADV. MR.JAMSHEED HAFIZ. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 23491/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AFFIDAVIT IN SUPPORT OF THE APPLICATION FOR AMENDMENT I.A.837/08 IN O.S.73/07 DATED 03/04/2008. EXT.P2: COPY OF THE COUNTER AFFIDAVIT FILED TO EXT.P1 DATED 08/04/2008. EXT.P3: COPY OF THE ORDER OF THE SUB COURT, TIRUR IN I.A.837/08 IN O.S.73/07 DATED 08/07/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.23491 OF 2009 -------------------------- Dated this the 22nd day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P1 to P3. ii) Set aside Ext.P3 order dated 08/07/2009 in I.A No.837/2008 in O.S No.73/2007 before the Sub Court, Tirur and dismiss I.A No.837/2008. iii) Render such other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. 2. Petitioner is one of the defendants in O.S No.73 of 2007 on the file of the Sub Court, Tirur. Suit filed by the respondents is one for W.P.(C).No.23491 OF 2009 Page numbers refund of advance paid on an agreement of sale. After the written statement was filed the respondents/plaintiffs applied for amendment of the seeking an additional relief for specific performance of the agreement of sale. that application was opposed to by the defendants. The learned Sub Judge after hearing both sides allowed that application vide Ext.P3 order. Propriety and correctness of that order is challenged in the writ petition by the petitioner/third defendant invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. The learned counsel for the petitioner submitted that the proposed amendment will change the character of the suit and it cannot be allowed. Relying on “Radhakrishnan v Pankajam”(2009 KLT 227) the learned counsel contended that when the relief of refund of money or advance or damages alone is W.P.(C).No.23491 OF 2009 Page numbers claimed repudiating the contract the plaintiff will be barred from claiming the specific relief even as an alternative relief. On the other hand, the learned counsel for the respondents/plaintiffs contended, repudiation of the contract required acceptance by the opposite party and till then there cannot be any repudiation under law. A party electing to sue for refund of the advance price paid on an agreement of sale and for that relief alone gives up the relief for specific enforcement of that agreement. Specific relief is an equitable relief. In the event of breach of contract by the other, the party to the contract can sue for one or more of the reliefs available to him under law. When he elects to sue for refund or damages alone but not for specific enforcement of agreement he does so repudiating the contract. He cannot turn around later and seek the relief of specific performance by way of an amendment of the plaint where the claim has been raised repudiating the W.P.(C).No.23491 OF 2009 Page numbers contract. I find no merit in the contention of the counsel that the plaintiff to such a suit requires consent or concurrence of the other party for repudiating the contract. The reasons set out in the P3 order by the court below are not correct and the proposed amendment as contended by the learned counsel for the petitioner/third defendant change the character of the suit which cannot be permitted. Ext.P3 order is set aside and Ext.P1 application of the plaintiffs shall stand dismissed. Writ petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv