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Trilochan Singh v/s Lashkar Singh & Another

    Civil Writ Petition No. 4648 of 2008

    Decided On, 18 April 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE NARENDRA KUMAR JAIN

    For the Petitioner: Rajvir Sharma, Advocate. For the Respondents: Sunil Kumar Singodiya, Advocate.



Judgment Text

Narendra Kumar Jain, J.

1. At the request of learned counsel for the parties, arguments were heard and writ petition is being disposed off finally.

2. This is plaintiff's writ petition directed against impugned order dated 29.03.2008 passed by Additional District Judge No. 2, Kota in Civil Suit No. 22/2006, whereby plaintiff's application under Ord

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er 6 Rule 17 C.P.C., to amend prayer clause of his plaint, has been dismissed.

3. Submission of Mr. Rajvir Sharma, learned counsel for the petitioner is that plaintiff filed a suit for specific performance of Agreement dated 16.07.2003, he moved an application under Order 6 Rule 17 C.P.C. to the effect that passing of decree for specific performance is not possible in the present case, as the disputed property has been sold, therefore, he may be allowed to add a prayer about refund of the amount, which was paid to the defendant under the Agreement dated 16.07.2003. He submitted that trial court committed an illegality in rejecting petitioner's application on the ground of limitation, whereas as per proviso to sub-Section 2 of Section 22 of Specific Relief Act, 1963, such a prayer could have been allowed at any stage of the proceedings.

4. Learned counsel for the respondent defended the impugned order and submitted that trial court rightly rejected the application, as relief claimed has become time barred.

5. I have considered submissions of learned counsel for the parties and examined impugned order in the light of submissions made by learned counsel for both the parties.

6. Section 22 of Specific Relief Act, 1963 is reproduced as under:

"22. Power to grant relief for possession, partition, refund of earnest money, etc.

(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or [made by] him, in case his claim for specific-performance is refused.

(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:

PROVIDED that where the plaintiff has not claimed any such relief 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 relief.

(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its power to award compensation under section 21."

7. From the above, it is clear that no relief under clause (a) or clause (b) of sub-section 1 of Section 22 of Specific Relief Act, 1963 shall be granted by the court, unless it has been specifically claimed. However, as per proviso, it is provided that where the plaintiff has not claimed any such relief 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 relief.

8. In view of above, I am of the view that learned trial court committed an illegality in passing impugned order, which is liable to be set aside and is, hereby, set aside.

9. Consequently, writ petition is allowed. Impugned order dated 29.03.2008 is set aside. Petitioner's application under Order 6 Rule 17 C.P.C. to amend prayer clause of the plaint is allowed. Amended suit be filed within 14 days in the trial court.

Writ petition allowed.
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