IMPORTANT POINT
The plaintiff failed to prove the execution of the sale agreement, and the amendment to include a claim for the return of the advance amount was not permissible as it would change the nature of the suit.

JUDGMENT

This Regular First Appeal has been filed under Section 96 read with Order XLI Rules 1 and 2 of the Code of Civil Procedure (for short 'C.P.C.', hereinafter), and the appellant is the plaintiff in O.S.No.493/2009 on the files of the I Additional Sub Court, Ernakulam. The appellant assails the decree and judgment in the above case dated 09.09.2000, whereby the learned Sub Judge dismissed the suit filed by the plaintiff/appellant for specific performance of contract of sale finding that Ext.A1 agreement was not proved. The sole defendant is the respondent herein.

2. Heard the learned counsel for the appellant/plaintiff as well as the respondent/defendant in detail. Perused the pleadings and evidence being form part of the trial court records.

3. The parties in this appeal will be referred to as 'plaintiff' and 'defendant' referring their status before the trial court.

4. The case advanced by the plaintiff before the trial court was that the defendant agreed to sell 6/20 undivided share in the plaint schedule property having an extent of 32.5 cents, to the plaintiff for a total sum of Rs.4,50,000/- and accordingly, an agreement in writing dated 03.02.2007 was entered into between them. According to the plaintiff, the defendant on executing the agreement received Rs.1,60,000/- as advance and agreed to execute the sale deed as and when demanded within a period of thirty months, but the defendant failed to execute the sale deed even though the plaintiff was ready and willing to execute his part of the contract and to pay the balance sale consideration to the tune of Rs.2,90,000/-. Filing of the suit as O.S.No.770/2008 before the Sub Court, Ernakulam for partition also averred in the plaint.

5. Defendant entered appearance and admitted 1/5 undivided right of the defendant in the plaint schedule property. But the defendant specifically denied the execution of the agreement dated 03.02.2007. The specific case put up by the defendant before the trial court was that as on 10.06.2000, the defendant borrowed Rs.1,60,000/- from the plaintiff in connection with the marriage of her daughter which was solemnised on 14.08.2000. The further case of the defendant was that out of the said amount, Rs.1,50,000/- was repaid by 15 instalments as agreed upon and the balance is only Rs.10,000/-.

6. On the above pleadings, the trial court raised necessary issues and tried the matter. PW1 and PW2 examined and Ext.A1 marked on the side of the plaintiff. DW1 examined and Exts.B1 and B2 documents marked on the side of the defendant.

7. The trial court addressed the genuineness of Ext.A1 and found that the plaintiff failed to prove the execution of Ext.A1 agreement. Accordingly, the suit reliefs were denied.

8. While impeaching the veracity of the trial court judgment, it is pointed out by the learned counsel for the plaintiff that even though in the written statement, the defendant raised contention regarding receipt of Rs.1,60,000/- in connection with the marriage of her daughter and repayment of Rs.1,50,000/- out of the same, during her cross-examination as DW1, defendant specifically admitted that she did not return the said amount of Rs.1,60,000/-. Therefore, the plaintiff is entitled to get the said amount along with interest. It is also argued by the learned counsel for the plaintiff that the trial court dismissed the suit and it has been observed in paragraph 24 of the judgment that there was no alternative prayer for return of the advance amount. In view of the said observation, the appellant has filed I.A.No.2/2024 to amend the plaint by incorporating the plea to recover an amount of Rs.1,60,000/- to the defendant paid as advance with interest and compensation.

9. Opposing the contentions raised by the learned counsel for the plaintiff, the learned counsel for the defendant argued that the specific case of the defendant is that there is no agreement as alleged by the plaintiff and the t