CR No. 3363 of 2011

(1)

IN THE PUNJAB AND HARYANA HIGH COURT

AT CHANDIGARH

Civil Revision No. 3363 of 2011 (O&M)

Date of decision : 13.2.2012

Devinder Singh

.. Petitioner

vs

Gurbachan Singh

.... Respondent

Coram:

Hon'ble Mr. Justice Rajesh Bindal

Present:

Mr. Tribhuvan Dahiya, Advocate, for the petitioner.

Mr. Deep Singh, Advocate, for the respondent.

Rajesh Bindal J.

1.

Challenge in the present petition is to the order dated 12.5.2011

passed by the learned court below whereby an application filed by the

petitioner-plaintiff for amendment of the plaint seeking to add the relief for

compensation in the alternative, in a suit for possession by way of specific

performance of agreement to sell, was dismissed.

2.

Briefly the facts as are available on record are that the

petitioner-plaintiff filed a suit for possession by way of specific

performance of agreement to sell dated 29.10.2005 pertaining to land

measuring 26 kanals 10 marlas in the revenue limits of village Gobindpura,

Tehsil Budhlada, District Mansa. In the alternative, the suit for recovery of

` 3,00,000/- as return of earnest money, ` 3,00,000/- as penalty and `

6,00,000/- as damages, totaling ` 12,00,000/-, along with interest @ 12%

per annum, was claimed. The suit was filed on 31.5.2006. After the entire

evidence of the parties had been led and the case was fixed for rebuttal and

arguments, the application in question was filed seeking to claim relief of

damages as a substitution on the ground that the land in question was

CR No. 3363 of 2011

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acquired during the pendency of the proceedings before the learned court

below as notification under Section 6 of the Land Acquisition Act, 1894

was issued on 6.1.2011. It was claimed that the respondent-defendant shall

be entitled to only the amount as was agreed in terms of the agreement to

sell entered into between the parties and the compensation over and above

the same shall be the right of the petitioner. The application having been

rejected, the petitioner-plaintiff is before this court.

3.

Learned counsel for the petitioner submitted that development

regarding acquisition of the land having taken place during the pendency of

the suit and as a result thereof, the agreement to sell has become incapable

of performance. In terms of provisions of Section 24 of the Specific Relief

Act (for short, the Act'), the petitioner can always seek amendment of the

plaint for claiming compensation for non-performance of agreement to sell.

In support of his submissions, reliance was placed upon judgment of

Hon'ble the Supreme Court in Jagdish Singh vs Natthu Singh AIR 1992

Supreme Court 1604.

4.

On the other hand, learned counsel for the respondent

submitted that the amendment in question at this stage cannot be allowed

considering the fact that the petitioner-plaintiff had already claimed

damages as alternative relief if for any reason decree for specific

performance is not passed. Provision of Section 21 of the Act does not come

to his rescue, as it only postulates a situation where no such relief has been

claimed earlier which could be permitted by way of amendment later on.

5.

Heard learned counsel for the parties and perused the paper-

book.

6.

Section 21 of the Act, which is extracted below, provides that

in a suit for specific performance of a contract, the plaintiff may also claim

compensation for its breach, either in addition to, or in substitution of, such

performance. If, in any such suit, the court decides that specific performance

ought not to be granted, but there is a contract between the parties which

has been broken by the defendant and that the plaintiff is entitled to

compensation for that breach, such amount can be awarded. This can be

ordered in addition to the decree of specific performance of a contract. Sub

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section 5 provides that no compensation has to be awarded unless the

plaintiff has sp