1. Suit for specific performance of contract — Defendant challenged order allowing amendment to incorporate alternative relief for refund of advance amount. (Para 1 , 2 )
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2026 Supreme(Raj) 754
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
SANJEET PUROHIT, J.
Ishwar Chand Jangid S/o Late Shri Mangi Lal – Petitioner
Versus
Manoj Kumar Sharma S/o Shri Kishan Sharma – Respondent
S.B. Civil Writ Petition No. 9256 of 2026
Decided On : 30-09-2026
Advocates appeared:
For Petitioner(s): Mr. Narendra Thanvi
For Respondent(s): Mr. D.L.R. Vyas
For Petitioner(s): Mr. Narendra Thanvi
For Respondent(s): Mr. D.L.R. Vyas
Section 22 of the Specific Relief Act, 1963, overrides Order VI Rule 17 of the CPC. It mandates that courts allow amendments to include a claim for refund of earnest money at any stage of the proceedings, bypassing the "due diligence" requirement necessary for general amendments post-trial.
Headnote:(A) Specific Relief Act, 1963 - Section 22 - Code of Civil Procedure, 1908 - Order VI Rule 17 - Amendment of plaint - Recovery of earnest money/advance amount - Whether a prayer for refund of earnest money can be added as an alternative relief after the commencement of trial without satisfying the "due diligence" requirement under the proviso to Order VI Rule 17 CPC - Section 22(1) and 22(2) of the 1963 Act contain a non-obstante clause that overrides the general provisions of the CPC - The word "shall" in the proviso to Section 22(2) makes it mandatory for the court to allow such amendment at any stage of the proceedings (Paras 6.2, 6.3, 6.6).
(B) Order VI Rule 17 CPC - Proviso - General rules regarding amendments after the trial has commenced require a showing of due diligence; however, where a special statute specifically permits amendment at any stage, the special provision prevails over the general procedural law (Paras 6.3, 6.4).
(C) Article 227 of the Constitution of India - Supervisory Jurisdiction - High Court's power under Article 227 is to be exercised sparingly and only in cases of patent perversity, jurisdictional error, or manifest injustice; it is not an appellate forum to substitute its view for that of the inferior court (Paras 8, 9).
Facts of the case:
A suit for specific performance was filed regarding an agreement for the supply of minerals. The original plaint included details of an advance payment but did not specifically pray for its refund as an alternative relief. During the stage of plaintiff's evidence, an application was filed to amend the plaint to include a prayer for recovery of the advance amount. The application was allowed by the trial court, which was challenged on the grounds that it violated the proviso to Order VI Rule 17 CPC since the trial had already commenced and no due diligence was shown.
Findings of Court:
The trial court did not err in allowing the amendment. The provisions of the Specific Relief Act, 1963, specifically Section 22, provide an overriding mechanism to allow the inclusion of a claim for refund of earnest money at any stage of the proceedings, regardless of the general restrictions in the CPC.
Issues: Whether the mandatory requirement of "due diligence" under the proviso to Order VI Rule 17 CPC applies to an amendment seeking the refund of earnest money under Section 22 of the Specific Relief Act, 1963, after the trial has commenced.
Ratio Decidendi: Section 22 of the Specific Relief Act, 1963, is a special provision with a non-obstante clause that overrides the Code of Civil Procedure. The proviso to Section 22(2) mandates that courts shall allow an amendment to include relief for refund of earnest money at any stage of the proceeding. Therefore, the "due diligence" test under Order VI Rule 17 CPC is not a bar to such an amendment.
Result: Writ petition dismissed.
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2. Petitioner argued amendment after trial barred by proviso to Order VI Rule 17 CPC; respondent contended Section 22, Specific Relief Act permits amendment at any stage. (Para 3 , 4 )
3. Section 22, Specific Relief Act has overriding effect over CPC proviso; amendment for alternative relief of refund is mandatory at any stage. (Para 6 , 7 )
4. Section 22 non-obstante clause overrides CPC; proviso to Section 22(2) mandates court to allow amendment for refund relief at any stage. (Para 7 )
5. Writ petition dismissed; impugned order allowing amendment upheld; no interference under Article 227. (Para 9 , 10 , 11 )
6. Is it mandatory for a court to allow an amendment for alternative relief of refund of earnest money under Section 22(2) of the Specific Relief Act?
Yes, the use of the word 'shall' in the proviso to Section 22(2) imposes a mandate upon the court to allow such amendment at any stage. (Para 7 )
Order
SANJEET PUROHIT, J.
1. Present writ petition has been filed challenging order dated 19.03.2026 passed by learned Additional District Judge, Makrana (“learned Trial Court”), whereby learned Trial Court allowed the application preferred by respondent–plaintiff under Order VI Rule 17 read with Section 151 CPC and permitted amendment of the plaint by incorporating a prayer for recovery of earnest money / advance amount in the suit for specific performance.
2. While elucidating the facts of present case, learned counsel for petitioner stated that a suit was instituted seeking specific performance of agreement dated 17.04.2019, whereby the parties had agreed that respondent-plaintiff would supply mineral stone to petitioner-defendant at the rate mutually settled between them. It was pleaded in the plaint that despite execution of the agreement and receipt of the advance amount, the agreed quantity of mineral stone was not supplied. Consequently, the suit for specific performance was instituted along with a prayer for permanent injunction for restraining petitioner-defendant from supplying said mineral stone to any other person.
2.1 The written statement had already been filed, issues had been framed, and the matter had reached the stage of plaintiff’s evidence when the application under Order VI Rule 17 CPC was filed seeking amendment of the plaint in relation to the advance amount allegedly paid by respondent-plaintiff. By way of proposed amendment, an alternative relief for recovery of said amount from petitioner-defendant was also sought to be incorporated.
2.2 Said application was opposed on behalf of petitioner on the ground that the proposed amendment was barred by the proviso to Order VI Rule 17 CPC. However, vide impugned order dated 19.03.2026, learned Trial Court allowed the application and permitted incorporation of proposed amendment in the plaint.
3. Assailing said order dated 19.03.2026, learned counsel for petitioner submitted that learned Trial Court failed to appreciate that the amendment sought was neither bona fide nor liable to be permitted at such a belated stage, when the matter had already reached the stage of plaintiff’s evidence. It was contended that, in view of the proviso to Order VI Rule 17 CPC, once the trial has commenced, amendment of pleadings cannot be permitted unless the Court is satisfied that, despite due diligence, the party could not have raised the matter before commencement of the trial.
3.1 It was further submitted that the application for amendment was bereft of any averment explaining due diligence or disclosing any sufficient cause for seeking the amendment at such a stage. According to learned counsel for the petitioner, the application, therefore, deserved to be rejected by learned Trial Court.
3.2 It was also submitted that, at the time of institution of the suit, respondent-plaintiff had sought only a decree for specific performance and permanent injunction. However, by way of proposed amendment, a prayer for recovery of money was also sought to be incorporated, which, according to petitioner, would materially alter the nature and character of the suit. It was, therefore, contended that learned Trial Court erred in permitting such an amendment.
3.3 Learned counsel for the petitioner placed reliance on various authoritative pronouncements of the Hon'ble Supreme Court as well as this Court to contend that, in the absence of due diligence, an amendment of pleadings at a belated stage, particularly after commencement of trial, cannot ordinarily be permitted. It was further argued that learned Trial Court erred in its interpretation of Section 22 of the Specific Relief Act, 1963 (“the Act of 1963”) and that impugned order suffers from a patent error apparent on the face of the record, warranting interference by this Court in exercise of its supervisory jurisdiction. Reliance was placed on the following judgments:
(i) Lutarram v. Smt. Champadevi , 2016 (3) DNJ 1368;
(ii) M.S. Indian Oil Corpor
