IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE th ON THE 18 OF APRIL, 2024 MISC. PETITION No. 7378 of 2023 BETWEEN:-

KARAN SINGH KUSHWAH S/O LATE SHRI BALDEV SINGH KUSHWAH, AGE 66 YEARS, OCCUPATION: PENSIONER, R/O VILLAGE GUDA LASHKAR GWALIOR (MADHYA PRADESH)

.....PETITIONER (BY SHRI ANMOL KHEDKAR - ADVOCATE)

AND

1. KAUSHAL KUSHWAH @ JITENDRA S/O LATE SHRI ROSHANLA R/O GUDA PITAMPURAM COLONY PURANI HAWELI KE PASS ASHOK PARISHAR KE MAKAN KE BAGHAL ME LASHKAR DISTRICT GWALIOR 474001 D.B. MALL 3RD FLOOR RAILWAY SE KAMANE GWALIOR (MADHYA PRADESH)

2. PRIYANKA KUSHWAH D/O LATE SHRI ROSHANLAL KUSHWAH, AGED ABOUT 18 YEARS, R/O GUDA, PITAMPURAM COLONY, PURANI HAWELI KE PASS, ASHOK PARIHAR KE MAKAN KE BAGAL ME, LASHKAR, GWALIOR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI R.S. DHAKAR - ADVOCATE)

This petition coming on for hearing this day, the court passed the following:

ORDER

The present petition under Article 227 of the Constitution of India is directed against the order dated 13.10.2023 passed in Civil Suit No.70A/2022 by learned 8th Civil Judge Class I Gwalior whereby the application under Order Signature Not Verified Signed by: YOGENDRA

6 Rule 17 of CPC for amendment in the plaint seeking an alternate prayer of return of money in the suit for specific performance of contract, was rejected.

2. The short facts of the case are that petitioner had preferred a suit for specific performance of contract against the present respondents alleging therein that mother of the respondents Smt. Shakuntla Devi had executed an agreement to sale of the land in dispute to the petitioner for a consideration of Rs.6,00,000/- on 24.03.2017 and in lieu thereof respondent No.1- Kaushal Kushwah @ Jitendra and his mother Smt. Shakuntla Devi had received Rs.1,10,000/-. Thereafter on 03.05.2017 again Rs.40,000/- was received as advance from the petitioner and in furtherance to the agreement dated 24.03.2017, another agreement was executed on 16.02.2019 and as per the terms of previous agreement Smt. Shakuntala Devi-mother of respondent No.1 agreed to sell the disputed property to the petitioner within ten days from the date of the second agreement but thereafter as Smt. Shakuntala Devi expired on 14.03.2019, sale-deed in favour of petitioner could not be executed. Though petitioner had approached respondents to execute sale-deed in his favour but the respondents adopted delaying tactics and did not execute the sale-deed. Therefore, petitioner was constrained to issue legal notice to them on 08.06.2020 but even thereafter since sale-deed was not executed, the petitioner filed present suit for specific performance on 10.01.2022.

3. A written statement was filed in the matter on behalf of respondent No.2 and the contentions of petitioner/plaintiff were denied in toto and prayer for dismissal of the civil suit was made. Respondent No.1 did not appear before the trial Court and the trial Court proceeded against him ex-parte.

4. After recording of statement of plaintiff, an application for amendment Signature Not Verified Signed by: YOGENDRA in the plaint was moved by him making prayer to incorporate an additional and alternate relief of return of advance money given to the respondent No.1 and his mother Smt. Shakuntala Devi in the relief clause of the suit. The said application was rejected by learned trial Court. Hence, the present petition is filed by the petitioner.

5. Learned counsel for the petitioner while placing reliance on Section 22 (1)(B) sub-section 3 of Specific Relief Act has argued that the order of learned trial Court rejecting the said application is per se illegal as Section 22 of Specific Relief Act starts with a non-obstante clause "Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908" which goes to show that the provisions of Code of Civil Procedure, if not contrary to the provisions of this Code, shall not be applicable in its strict sense and therefore, when a duty is cast u