ORDER
Dipak Misra, J.
1. Invoking the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the defendant/petitioner has called in question the legal validity of the order dated 25-11-99 passed in Civil Suit No. 47-A/95 by the learned First Additional District Judge, Chhindwara.
2. The facts as have been undraped are that the non- applicant filed the aforesaid suit for Specific Performance of Contract averring that the defendant had executed an agreement dated 8-10-94 for sale of a house for a sum of Rs. 1,20,000/- and in pursuance of the terms of the agreement had taken Rs. 60,000/- . It is further set-forth in the plaint that as per the terms and conditions of the agreement the defendant was required to execute the sale-deed by 31-10-95 and the registration fee was to be borne by the plaintiff and the possession was to be handed over at the time of sale. Though in the month of April, 1995 the plaintiff approached the defendant with Rs. 60,000/-and requested him to get the sale-deed executed the defendant avoided to execute the sale-deed on some pretext or other. Because of this situation the plaintiff sent a registered notice through his counsel on 31-8-95 requiring the defendant to inform him about the date of registration. In spite of the issuance of the registered letter there was no change in the attitude of the defendant. As the date of registration approached nearer the plaintiff sent a telegram on 27-9-95 indicating that he is ready and willing to perform his part of the contract, and therefore, the defendant should remain present in the Office of the Sub- Registrar on 10-10-95. The defendant refused to accept the saidtelegram. Thereafter, in 'Jabalpur Express' the plaintiff got a notice published requiring the defendant to execute the sale-deed within eight days. In the said notice it was also stipulated if the defendant did not execute the sale-deed by 31-10-95 the proceeding will be initiated in Court. The plaintiff eagerly waited till 31-10-95 and after the said date expired he filed the suit for specific performance of contract and for delivery of possession.
3. The defendant filed his written statement disputing the execution of the agreement and further disputing the averments made in the plaint.
4. After the issues were framed the plaintiff/non-applicant filed an application under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the plaint on the ground that the defendant in order to frustrate the agreement in a malafide manner had caused damages to the suit house and had removed the doors, windows and other materials from the house. That apart it was pleaded that the defendant had removed lot of other articles from the premises in question. The plaintiff valued the removed goods at Rs. 50,000/- and further stated that Rs. 4,000/- would be needed to fix the said fittings in the house. In this manner the plaintiff intended to add Paragraph Nos. 10 to 14 after Paragraph 9. In Paragraph 14 of the amendment petition the plaintiff wanted to incorporate in paragraph (e) that the value of the items removed should be excluded from the value mentioned in the contract and direction should be issued for execution of the sale-deed on payment of the balance sum. This amendment was objected to by the defendant on the ground that the allegations are not factually correct and further no Court fee has been paid on the sum claimed and in any case the amendment sought for was beyond the scope and ambit of the suit as it changed the nature of agreement which was the very foundation of the suit.
5. The learned Trial Judge considering the objections raised by the defendant allowed the application for amendment. The said order is the cause of grievance of the present revisionist.
6. I have heard Mr. H.B. Agrawal, learned counsel for the petitioner, and Mr. R.S. Tiwari, learned counsel for the non- applicant.
7. Mr. Agrawal, learned counsel for the petitioner, has vehemently urged that the amendment should not have been allowed as it runs contrary to the provisions enshrined under Sections 12 and 16 of the Specific Relief Act (hereinafter referred to as 'the Act'). It is his submission that if the amendment is allowed the terms and conditions of the agreement, if any, would change, and such a change in the terms and conditions of the agreement is not permissible.
Resisting the aforesaid submission Mr. Tiwari, learned counsel for the non-applicant, has contended that the plaintiff has claimed damages for breach of contract inasmuch the defendant had agreed to sale the house in a particular condition, but by removing the articles he has impaired the value of the house, and hence, the plaintiff is entitled to damages for breach of the terms and conditions of the agreement and that he has sought to be adjusted towards thesale price. It is his further submission whether the Court fee is payable or not and whether the plaintiff would succeed because of amendment or not are in the realm of merits of amendment and that aspect is not to be gone into while dealing with the application for amendment. The learned counsel for the petitioner has placed reliance on the language employed under Section 21 of the Act.
8. To appreciate the rival submissions raised at the Bar I have carefully gone through the plaint, written statement, amendment application and the objection thereto. I have also perused the impugned order and scrutinised the same with utmost anxiety. Mr. Agrawal has drawn my attention to Section 12 of the Act which deals with the Specific Performance of part of contract. He has also placed emphasis on Section 16 which deals with personal bar to relief. In my considered opinion both these provisions are of no assistance to the petitioner. As far as Section 21 is concerned the submission of Mr. Agrawal is that the said provision is not attracted to the present factual matrix and submission of Mr. Tiwari is that it squarely applies to the case at hand. In this context, it is profitably to reproduce Section 21 of the Act.
'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, either in addition to, or in substitution of, such performance.
(2) If, in any such suit, the Court decides that specified performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) If, in any such suit, the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.
(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 proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.
Explanation.-- The circumstances that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this Section.
On a perusal of the aforesaid provision it is quite clear that the plaintiff canask for damages for breach of contract. The plaintiff is also at liberty to pray for grant of compensation for the loss he has suffered for non-performance of the contract by the defendant. It is also well settled in law the Court in a given case may not allow the specific performance for contract and direct for payment of damages to the plaintiff. But in the present case the amendment sought for has its own peculiarity. The plaintiff has averred that the defendant has impaired the value of the property agreed to be sold, and therefore, the said price has to be adjusted towards the agreed price. By virtue of this amendment the plaintiff has made an effort to change the basic nature and spirit of the agreement. Mr. Tiwari, learned counsel, has laboured hard while contending that the amendment sought to reduce the agreed sale price can be construed as damages. In my considered opinion the concept of compensation or damage as envisaged under Section 21 of the Act lies in a different spectrum and this kind of adjustment cannot be inferred from the language employed under Section 21 of the Act. As the basic character of the agreement is sought to be changed by way of the amendment of the plaint I am of the considered opinion that the same should not have been allowed by the learned Trial Judge. Accordingly, the impugned order allowing the amendment is set aside. However, it would be open to the plaintiff to seek amendment of the plaint by claiming damages, if so advised.
9. Resultantly, the civil revision is allowed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.
10. Civil Revision allowed.