JUDGMENT R.L. Khurana, J. (Oral) - The petitioner is the defendent. He is aggrieved by the order dated 28.11.2002 whereby the plaintiff-respondent was permitted under 6 rule 17, Code of Civil Procedure, to amend his plaint for impleading the alternative relief.

2. Briefly, stated the facts of the case out of which the present revision has arisen are these. The parties are alleged to have entered into an agreement to sell on 23.10.1998 whereby the plaintiff respondent had agreed to sell the land measuring 0-03-23 Hects mts, out of khasra No.1058/753 in Mohal and Mauza Dhaleta, Tehsil Nurpur, District kangra for a consideration of Rs. 53,750/-. A sum of Rs. 20,000/- was paid as earnest money at the time of the agreement. According to the plaintiff - respondent the agreement was to be performed by 12.2.1999. According to the terms of the agreement, the defendant - petitioner had agreed to provide a 4 feet wide path to the plaintiff for approaching the land agreed to be sold. The land agreed to be sold was mortgaged with Kangra Co-operative and Primary Bank Limited, Nurpur which mortgage the defendant petitioner had agreed to redeem before affecting the sale in favour of the plaintiff - respondent. As per the plaintiff respondent subsequently she came to know that there was no other land of the defendant petitioner from where the path could be provided to the plaintiff respondent for reaching the land agreed to be sold. In fact, there was no possibility of providing any path. Pleading that the defendant respondent had fraudulently entered into an agreement to sell on 23. to 1998, the plaintiff - respondent on 6.3.1999 filed a suit for recovery of Rs.40,000/- being the double the amount of earnest money paid by the plaintiff - respondent to the defendant - petitioner.

3. The learned Sub Judge 1st Class (1) Nurpur on 7.11.2001 dismissed the suit by holding that the plaintiff - respondent was not entitled to recover any amount from the defendant - petitioner. The learned Sub Judge further observed that the plaintiff respondent, if so advised, may file a suit for specific performance of the agreement in accordance with law.

4. Feeling aggrieved, the plaintiff-respondent went up in appeal before the learned District Judge, Kangra at Dharamsala being Civil Appeal no. 184-N/13 of 2001. In such appeal, an application came to be made by the plaintiff-respondent under Order 6 Rule 17, Code of Civil Procedure, for the amendment of the plaint. The amendment sought for was to add the relief of possession by way of specific performance. The resultant effect of such amendment was to change the suit for the recovery of Rs. 40,000/- to the one for possession by specific performance of contract and in the alternative for recovery of Rs. 40,000/-. The learned District Judge vide the impugned order, allowed the amendment as prayed for. Hence the present revision petition at the instance of the defendant-petitioner.

5. It was contended by the learned Counsel for the defendant-petitioner that the amendment prayed for could not have been allowed by the learned Court below. It was contended that the plaintiff-respondent had initially filed a suit for the recovery of double the amount of earnest money paid by him at the time of the agreement. The very basis for a suit for recovery of the earnest money is the repudiation of the agreement to sell. Once the plaintiff-respondent has repudiated the agreement to sell and has claimed the refund of the earnest money, he cannot be permitted then to ask for specific performance of such agreement which stood repudiated by him.

6. In Prem Raj v. The D.L.F. Housing and Construction (P) Ltd. and another, AIR 1968 SC 1355, a question arose whether the plaintiff who had filed a suit for declaration that a particular contract was void could be permitted to amend his plaint to include the alternative prayer for specific performance of such contract, it was held that such a course was not permissible. It was further held that Se

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