A party, having elected a particular remedy, cannot belatedly seek a different remedy after a significant delay.

ORDER :

The petitioner being the plaintiff in O.S. No.40/1995 on the file of the Senior Civil Judge, Tiptur, has filed this writ petition challenging an Order dated 03.07.2010 by which applications in I.A. Nos.4 and 5 filed by him under Order VI Rule 17 of the Civil Procedure Code, 1908 (for short, ‘the CPC’) and under Order 1 Rule 10(2) of the CPC were rejected.

2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.

3. A suit in O.S. No.40/1995 was filed for recovery of a sum of Rs.88,200/-. It was claimed that the defendants had agreed to sell the land bearing Sy. No.49/2 of Honnavalli village and hobli, Tiptur, measuring 02 acres 12 guntas for a sum of Rs.1,89,000/- in terms of an agreement dated 28.04.1994. The plaintiff claims that he had paid a sum of Rs.70,000/- as part of the sale consideration. The plaintiff claims that the defendants unduly delayed the conclusion of the sale transaction and did not hand over possession of the suit schedule property. He claimed that the defendants were liable to refund a sum of Rs.70,000/- along with interest at 2% per month from 28.04.1994 till the date of filing the suit and hence, filed a suit for recovery of Rs.88,200/-.

4. The suit was contested by the defendants, who denied the execution of the agreement dated 28.04.1994. They also denied the receipt of a sum of Rs.70,000/- as part of the alleged sale consideration.

5. Based on these rival contentions, the Trial Court framed issues and the suit was set down for trial. The plaintiff did not adduce his evidence, but filed an application (I.A. No.5) under Order I Rule 10(2) read with Section 151 of the CPC to implead a person named Mr. Marulappa as defendant, who had allegedly purchased portion of the land bearing Sy. No.49/2 measuring about 01 acre 06 guntas in terms of a sale deed dated 15.12.1994. Contemporaneously, he filed an application (I.A.No.4) under Order VI Rule 17 read with Sections 94(e) and 151 of the CPC to lay foundation to claim relief of specific performance of an agreement of sale dated 28.04.1994 in the plaint. These applications were contested by the defendants. The Trial Court in terms of the Order dated 03.07.2010, rejected both the applications holding that the amendment if allowed would change the nature of the suit as well as the cause of action.

6. Being aggrieved by the said Order, the present writ petition is filed.

7. The learned counsel for the plaintiff/petitioner submitted that an application for amendment of plaint to plead the relief of specific performance was though filed beyond the period of limitation, yet the Trial Court could not have rejected such an application and ought to have allowed the application with effect from the date of its filing. He also contended that the proposed defendant being a purchaser of a portion of the suit property was liable to be brought on record for passing an effective decree of specific performance.

8. This, however, is countered by the learned counsel for the defendant Nos.2(a) to 2(d)/respondent Nos.2(a) to 2(d) who contended that the suit was originally filed for recovery of money and long after the defendants denied the alleged execution of the agreement, an application was filed on 11.10.2006 to amend the plaint as well as to implead a subsequent purchaser of portion of the suit property. She submitted that allowing applications in I.A. Nos.4 and 5 would revive a cause of action, which has long expired and therefore, this Court should not entertain such a request.

9. I have considered the submissions made by the learned counsel for the petitioner and learned counsel for respondent Nos.2(a) to 2(d).

10. The plaintiff who alleged that an agreement of sale was executed on 28.04.1994 had the option of either suing for specific performance or for recovery of money. The plaintiff chose to sue for recovery of money contending that the defendants had agreed to repay the earnest money with interest at 2% per month. Therefore, the plainti