The amendment for an alternative relief should be allowed under Section 22(1) of the Specific Relief Act 1963, as long as it does not alter the cause of action.

M.R. Hariharan Nair, J. - The revision petitioner in both these cases is the plaintiff in a suit for specific performance. Through relief A he prayed for a direction to the first defendant to fulfil his part of the contract dated 27.7.1992 and direct the second defendant to execute a sale deed in respect of the plaint schedule property in favour of the plaintiff at the cost of plaintiff. On noticing that the scheduled property was sold away in court auction in another case and purchased by a stranger and that there was little scope for getting specific performance in the circumstances, the plaintiff moved for amendment of relief A aforementioned as follows :

"Allowing the plaintiff to realise an amount of Rs. 95,000/- with interest at 12% from the date of suit till realisation from the second defendant and his assets."

On noticing that the aforesaid application was filed beyond three years from the date of agreement between the plaintiff and the first defendant which is dated 27.7.1992, the court below dismissed the application. According to the court below, the claim for recovery of money had become barred by limitation as on the date of the amendment application, namely, 23.9.1998 and hence the prayer for the amendment was inadmissible.

2. The learned counsel for the revision petitioner submitted that in the instant case the amendment sought was for an alternative relief in respect of the very same cause of action as alleged in the plaint and that in the circumstances, the court below went wrong in disallowing the amendment sought for. Reliance was placed in this regard on the decision in A.K. Gupta & Sons v. Damodar Valley Corporation, AIR 1967 SC 96.

3. The learned counsel for the respondents, on the other hand, relied on the decisions taking the view that after the cause of action has become barred, an amendment cannot be allowed as it will affect the right of the defendants to plead limitation.

4. The plaintiffs case is that the plaint schedule property of 4 cents in which an Oil Mill is conducted by the second defendant as owner was sold to the first defendant on 20.6.1990 for a price of Rs. 1,55,000/-; that at the time of the said transaction, the property was outstanding on mortgage in favour of Union Bank of India pursuant to a loan transaction and that it was while things were like this that the first defendant agreed to sell the property to the plaintiff as per agreement dated 27.7.1992. The pliant, thus, contains a prayer for specific performance. It is clearly averred that the amendment for recovery of an amount of Rs. 95,000/- received by the second defendant on various dates from 12.8.1992 to 20.3.1993 was necessitated on finding that the property was sold away in court auction for recovery of the dues to the creditor bank of the second defendant.

5. Under Section 22(1) of the Specific Relief Act 1963, any person suing for specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for possession or partition and separate possession of the property in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him in case his claim for specific performance is refused. Here also there is an embargo provided under Section 22(2) to the effect that no relief to refund of deposit or earnest money shall be granted by the Court unless it has been specifically claimed. The proviso to Section 22(2) further directs that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such relief.

6. What is clear from the aforesaid provision is that the Court will be justified in granting the relief of refund in cases where specific performance is found inadmissible only if there is a specific claim for such relief and that the Court has always t