CR No.879 of 2014 1 In the High Court of Punjab and Haryana at Chandigarh CR No.879 of 2014 Date of decision: 05.02.2014 Gordhan ......Petitioner Versus Jaibir Singh and another .......Respondents CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.N.D.Achint, Advocate for the petitioner.
**** SABINA, J.
Petitioner has filed this petition challenging the order dated 10.1.2014 (Annexure P4) whereby application moved by the respondents for permission to amend the plaint, was allowed.
Learned counsel for the petitioner has submitted that, initially, respondents had filed suit for specific performance or in the alternative recovery of `80,23,125/-.
However, now by way of amendment, the respondents wanted to controvert the suit for specific performance into a suit for mandatory injunction.
In the present case, respondents had filed suit for possession by way of specific performance of agreement to sell dated 18.11.2005 in question or in the alternative, it was prayed that the decree for recovery of `80,23,125/- be passed in favour of the respondents.
During the pendency of the suit, the land in question was acquired and compensation was received by the petitioner to the Raj Kumari tune of 2,21,97,312/-.
Consequently, the application was moved by 2014.02.10 15:23 I attest to the accuracy and integrity of this document CR No.879 of 2014 2 the respondents for permission to amend the plaint whereby seeking the relief qua mandatory injunction also.
It has been held by the Apex Court in Jagdish Singh versus Natthu Singh 1992 AIR (SC) 1604 wherein it has been held as under:- “Section 21 of the Specific Relief Act, 1963 corresponding to Section 19 of 1877 Act enables the plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of, such performance.
Sub- sections (2).(4) and (5) of Section 21 are material and they provide: "(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 broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) [ Omitted as unnecessary.].(4) In determining the amount of any compensation awarded under this section, the Court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872, 9 of 1872.
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the Court shall, at any stage of the Raj Kumari proceeding, allow him to amend the plaint on such terms as 2014.02.10 15:23 I attest to the accuracy and integrity of this document CR No.879 of 2014 3 may be just, for including a claim for such compensation.
Explanation-The circumstance that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section."
(emphasis added) So far as the proviso to sub-section (5) is concerned, two positions must be kept clearly distinguished.
If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific-performance the court will allow the amendment at any stage of the proceeding.
That is a claim for compensation falling under Section 21 of the Specific Relief Act, 1963 and the amendment is one under the proviso to sub- section (5).But different and less liberal standards apply if what is sought by the amendment is the Conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked.
This amendment is under the discipline of Rule 17 Order 6, C.P.C.The fact that sub-section (4).in turn, invokes Section 73 of the Indian Contract Act for the principles of quantification and assessment of compensation does not obliterate this distinction.
The provisions of Section 21 seem to resolve certain divergencies of judicial opinion in the High Courts on some aspects of the jurisdiction to award of compensation.
Sub- Raj Kumari section (5) seeks to set at rest the divergence of judicial opinion 2014.02.10 15:23 I attest to the accuracy and integrity of this document CR No.879 of 2014 4 between High Courts whether a specific claim in the plaint is necessary to grant the compensation.
In England Lord Cairn's (Chancery Amendment) Act, 1858 sought to confer jurisdiction upon the Equity Courts to award damages in substitution or in addition to specific performance.
This became necessary in view of the earlier dichotomy in the jurisdiction between common law and Equity Courts in the matter of choice of the nature of remedies for breach.
In common law the remedy for breach of a contract was damages.
The Equity Court innovated the remedy of specific performance because the remedy of damages was found to be an inadequate remedy.
Lord Cairn's Act, 1858 conferred jurisdiction upon the Equity Courts to award damages also so that both the reliefs could be administered by one court.
Section 2 of the Act provided: "In all cases in which the Court of Chancery has jurisdiction to entertain an application for specific performance of any covenant, contract or agreement it shall be lawful for the same Court if it shall think fit to award damages to the party injured either in addition to or in substitution for such specific performance and such damages may be assessed as the Court shall direct."
This is the historical background to the provisions of Section 21 of the Specific Relief Act, 1963 and its predecessor in Section 19 of the 1877 Act.”
.
In the present case, respondents have not given up the Raj Kumari claim for specific performance of the agreement to sell in question 2014.02.10 15:23 I attest to the accuracy and integrity of this document CR No.879 of 2014 5 but have rather claimed the relief of mandatory injunction in the alternative.
The said fact is evident from the application moved by the respondents,Annexure P2, under Order 6 Rule 11 of the Code of Civil Procedure.
In these circumstances, the learned trial Court rightly held that the case of the respondents was covered by the decision of the Apex Court in Jagdish Singh (supra).No ground for interference is made out.
Dismissed.
(SABINA) JUDGE February 05, 2014 arya Raj Kumari 2014.02.10 15:23 I attest to the accuracy and integrity of this document CR No.879 of 2014 6 Raj Kumari 2014.02.10 15:23 I attest to the accuracy and integrity of this document