The

instant

writ

petition

is

filed

by

the

plaintiff/petitioner with a prayer to quash the order dated

24.09.2016 passed on I.A.No.18 filed by the plaintiff under

Order VI, Rule 17 of CPC, in O.S.No.442/2001, by the

4

Principal Senior Civil Judge, Bengaluru Rural District, vide

Annexure-A.

Heard learned counsel for the parties and also

perused the material on record.

The petitioner/plaintiff has filed O.S.No.442/2001

before the Trial Court seeking a decree of specific

performance of the agreement dated 06.06.1996 and to

direct the defendants to execute the sale deed in respect

of the suit schedule property in favour of the plaintiff. In

the said suit, the defendants had entered appearance and

filed written statement denying the plaint averments.

I.A.No.18 was filed by the plaintiff under Order VI, Rule 17

of CPC with a prayer to amend the plaint by adding an

additional prayer seeking an alternative relief of refund of

the advance amount of Rs.3,50,000/- with interest, which

was paid to the defendants under the agreement of sale

dated 06.06.1996. The said application was opposed by

the defendants by filing objections. The Trial Court vide

5

order impugned has rejected the application and being

aggrieved by the same, the petitioner is before this Court.

Learned counsel for the petitioner submits that the

proposed amendment is an alternative relief sought which

even otherwise is within the discretion of the Trial Court.

He submits that the proposed amendment will not change

the nature of the suit and that the defendants will not be

put to any hardship, in the event, the said application is

allowed.

Per contra, learned counsel for the respondents

submits that the application has been filed belatedly at the

stage of arguments and therefore, the Trial Court was

justified in dismissing the application. He accordingly

prays to dismiss the writ petition.

6.

I have given my anxious consideration to the

arguments addressed on both sides and also perused the

material on record.

6

7.

The suit filed by the plaintiff is one for specific

performance of the agreement dated 06.06.1996 and it is

the specific case of the plaintiff that he had paid the

advance sale consideration of Rs.3,50,000/- to the

defendants under the aforesaid agreement of sale and as

such, specific performance of the said agreement is sought

for. By the proposed amendment, the plaintiff has sought

for including an additional prayer for refund of the advance

amount of Rs.3,50,000/- with interest, in the event the

Trial Court is not inclined to grant a decree for specific

performance of the agreement. The said alternative relief

sought for by the plaintiff will not change the nature of the

suit and the Trial Court while considering the relief of

specific performance of agreement can exercise the

discretion to award such relief to the plaintiff. Though

the application is filed at a belated stage, there is no bar

for the Trial Court to consider such an application for

amendment, if the defendants are not put to any hardship

or the nature of the suit is not changed in view of the

7

proposed amendment. I am of the considered view that

since the plaintiff has only made a prayer seeking

amendment of the plaint by incorporating an alternative

prayer for refund of the amount paid by him under the

agreement of sale, the Trial Court was not justified in

dismissing the said application. In the circumstances, the

order impugned cannot be sustained. Hence, the

following:

Order

i)

The writ petition is allowed.

ii)

The order impugned dated 24.09.2016 stands

quashed and consequently, the prayer made in I.A.No.18

stands allowed.

Sd/-

JUDGE

mv