1990 (4) TMI 298 - HC - Indian Laws

Summary

Issues Involved:
1. Amendment of plaint to seek decree for specific performance.
2. Legal principles governing amendment of plaint.
3. Jurisdiction of the High Court in revisional proceedings.

Issue-wise Detailed Analysis:

1. Amendment of plaint to seek decree for specific performance:
The primary legal issue was whether a suit initially filed for the refund of advance, damages, and interest could be amended to seek a decree for specific performance of the contract, with the original relief claimed as an alternative. The court concluded that such an amendment cannot be allowed. The plaintiff had initially sought the recovery of Rs. 8,30,510/- for double the amount of earnest money/advance plus interest. Upon receiving notice of the suit, the defendant applied for leave to defend, after which the plaintiff sought to amend the plaint to include a decree for specific performance. The trial court allowed the amendment, but the High Court found this to be incorrect, emphasizing that once a plaintiff elects to claim damages, they cannot subsequently seek specific performance.

2. Legal principles governing amendment of plaint:
The court referred to several precedents to elucidate the principles governing amendments. In *Ardeshir v. Flora Sassoon* (AIR 1928 PC 208), it was held that a suit for specific performance could not be amended to claim damages based on the facts of that case. In *Sundaramayyar v. Jagadeesan* (AIR 1965 Mad 85), the court ruled that once a party elects to treat a contract as breached and seeks damages, they cannot later claim specific performance. The Supreme Court in *Prem Raj v. D.L.F. H. & C. Ltd.* (AIR 1968 SC 1355) clarified that while a plaintiff suing for specific performance can alternatively seek rescission, the converse is not true. This principle was reiterated in *Jawahar Lal Wadhwa v. Haripada Chatroberty* (AIR 1989 SC 606), stating that a party cannot claim specific performance after electing to treat the contract as breached and suing for damages.

3. Jurisdiction of the High Court in revisional proceedings:
The court addressed the argument that it should not interfere in revisional jurisdiction. It was noted that if a subordinate court exceeds its jurisdiction or commits illegality, the High Court can correct the error in revisional jurisdiction to prevent manifest injustice. The court cited instances where interference in revision was deemed appropriate, such as in *Tarsem Singh v. Daljit Kaur* (1985 PLJ 534) and *Jai Bhagwan v. Raja Ram* (1989 (2) RLR 214).

Conclusion:
The court overruled the decision in *Tarsem Singh v. Daljit Kaur* and upheld the principles laid down in *Sundaramayyar v. Jagadeesan*, *Hari Krishna v. K. C. Gupta* (AIR 1949 All 440), and *Ayissabi v. Gopala Konar* (AIR 1989 Ker 134). It concluded that a plaintiff who initially seeks damages and the return of earnest money cannot later amend the plaint to seek specific performance as the primary relief. The revision was allowed, the order of the trial court permitting the amendment was set aside, and the application for amendment was dismissed. The court also directed the refund of any additional court fee paid by the plaintiff.

Judgment:
The revision was allowed, and the trial court's order permitting the amendment was set aside. The application for amendment of the plaint was dismissed, and the plaintiff was entitled to a refund of any additional court fee paid.