A plaintiff who has filed a suit for refund of advance and damages cannot be allowed to amend the plaint to seek a decree for specific performance of the contract and claim the original relief as an alternative relief.

G.C.MITAL, J.

1. After filing a suit for refund of the advance and an equal sum by way of damages and interest for not executing the sale deed within the specified time can the suit be allowed to be amended to seek decree for specific performance of the contract and claim the original relief as an alternative relief in a suit filed by the person who agreed to purchase is the legal issue which we are called upon to determine on a reference made by a learned single Judge of this Court. Our answer is that amendment cannot be allowed.

2. Roop Chand Chaudhary on 25-1-1988 agreed to sell his house No. 4, Sector 9-A, Chandigarh to Smt. Ranjit Kumari for Rs. 18,50,000 / - and the former received Rs. 50,000 / - as earnest money. On 27-1-1988 Rs. 1,50,000.00 more was received by him on 10-5-1988. By this time, the seller had received Rs. 4,00,000.00- from the purchaser.

3. The parties mutually agreed to extend the date twice: once to 10-7-1988 and secondly, to 29-7-1988.

4. Smt. Ranjit Kumari, the person who was to purchase the house, filed the suit on 17-8-1988 under Order 37, Rules 1 and 2 of the Code of Civil Procedure (the Code in short) for recovery of Rs. 8,30,510.00 against Roop Chand Chaudhary, the person who was to sell the house. In the break up, recovery of double the amount of earnest money/ advance, plus interest at the rate of 18 per cent per annum on the earnest money/advance was claimed up to the date of the plaint. She also claimed interest at 18 per cent per annum from 18-8-1988 till the date of decree and realisation.

5. On receipt of notice of the suit, the defendant made an application for leave to defend. It is thereafter that the plaintiff filed an application u/O.6 R.17 of the Code for amendment of the plaint to seek a decree for specific performance and in the alternative, the relief which was claimed in the original plaint. The application for amendment was opposed by the defendant. The trial Court, by order dated 28-3-1989, allowed the amendment, on the finding that the cause of action would not change, nor would the proposed amendment tantamount to change the nature of the suit. It also observed that the Supreme Court has laid down that the amendment can be allowed even if it is proposed to set up a new case unless and until it can cause prejudice to the other party for which it cannot be compensated with costs. However, in the order, reference was also made to the judgment of S. P. Goyal, J. in Ram Chand V/s. Karamvir, 1987 PLJ 611.

6. The defendant felt aggrieved and came to this Court in revision under S.115 of the Code of Civil Procedure and the case was placed before J. V. Gupta, J. on 7-8-1989 before whom on behalf of the plaintiff reliance was placed on a direct judgment of S.S. Kang, J. in Tarsem Singh V/s. Daljit Kaur, 1985 PLJ 534 in which the facts were more or less the same. S. S. Kang, J. had set aside the order of trial Court declining the amendment and allowed the amendment of the plaint to seek decree of specific performance as the first relief in spite of the fact that in the original suit relief of recovery of earnest money/ damages alone was sought. The learned Judge referred the matter to a larger Bench to consider the correctness of that judgment. That is how, the case has been placed before us.

7. Having heard the learned counsel at length and on consideration of the judgments cited at the bar, we are of the view that the correct legal position is not depicted in Tarsem Singhs case (supra).

8. The other direct judgment on the point is rendered by J. V. Gupta, J. in Jai Bhagwan V/s. Raja Ram, 1989 (2) RLR 214, where in similar circumstances amendment allowed by the trial Court, for including the relief of specific performance as the first relief in a suit for return of the advance and damages was set aside. Therein, the decision in Tarsem Singhs case (supra) was noticed and distinguished.

9. We have gone through both the decisions of this Court and are of the opinion that both the