IMPORTANT POINT
In a suit for specific performance of contract, plaintiff may also claim compensation for its breach in addition to such performance.

ORDER

Vivek Singh Thakur, J.—Petitioners-defendants, by way of present petition, have assailed impugned order dated 11.12.2019 passed by learned Senior Civil Judge Kasauli, whereby application filed by respondent No.1-plaintiff, under Order 6 Rule 17 C.P.C, seeking amendment of the plaint for adding alternative prayer in the head note and prayer clause of the plaint, has been allowed.

2. Parties herein, for convenience, shall be referred hereinafter as plaintiff and defendants, according to their status in the Civil Suit. Respondent No.1 is plaintiff, whereas petitioners are contesting defendants No. 1 and 2 and respondent No.2 is proforma defendant.

3. Plaintiff, being purchaser in a sale agreement executed between him and defendants No. 1 and 2, has filed a Civil Suit for Specific Performance of the contract and for Mandatory Injunction and Possession.

4. As per agreement to sell dated 1.7.2011, executed between the contesting parties, as recorded in clause 8 of this agreement, in case seller backs out from the bargain and fails to complete all terms and conditions of the agreement, then seller shall be liable for prosecution and shall also be liable to refund to the said purchaser three times of the amount received by him from the purchaser against the plot, if any, without any hesitation, demand and delay, and further that in case, the purchaser does not accept such liquidated damages then the purchaser shall have right to get the sale effected through the court of law under Specific Relief Acts, at the risk and cost of the seller.

5. As per plaint, sellers/defendants were defaulting in execution of the sale deed and transfer of possession of suit property, whereas as per written statement plaintiff was never interested for transfer of the property in his name and despite making efforts by the defendants No. 1 and 2 to transfer the property, plaintiff delayed the matter on one pretext or another.

6. During trial, at the stage of recording evidence of defendants witnesses, plaintiff filed an application under Order 6 Rule 17 C.P.C. stating therein that at the time of conducting cross-examination of the defendants, it was revealed that though the plaintiff had duly mentioned the alternative plea of payment of three times of the sale amount so received by the defendants, in para 9 of the plaint, but had omitted to mention such alternative relief of such recovery, despite due diligence, in the head note and prayer clause of the plaint in spite of the fact that plaintiff had also sought any other relief as deemed fit by the Court.

7. The aforesaid application was contested by defendants No.1 and 2 on the grounds that application was hopelessly time barred, in absence of any specific prayer in plaint regarding alternative prayer of recovery, at this belated stage, plaintiff could not be allowed to introduce new relief in the suit, by introducing the alternative prayer of recovery, at this belated stage, nature of suit would be changed and lastly that plaintiff had failed to explain due diligence exercised by him in pursuing the case.

8. After taking into consideration, pleadings of the parties and submissions made on their behalf including case law referred, learned Senior Civil Judge, Kasauli has allowed the amendment sought by the plaintiff. Hence the present petition.

9. In present case, plaintiff has filed a suit for ‘Specific Performance of Contract’ and also for ‘Mandatory Injunction’ and possession.

10. Being relevant for adjudication of present petition, it would be apt to reproduce Sections 21 and 40 of Specific Relief Act and Order 6 Rule 17 C.P.C for ready reference:

21. Power to award compensation in certain cases.

1. In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach (in addition to) such performance.

2. If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been b