SABINA, J. - (1.) 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.
(2.) LEARNED counsel for the petitioner has submitted that, initially, respondents had filed suit for specific performance or in the alternative recovery of Rs. 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 Rs. 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 tune of Rs. 2,21,97,312/ -. Consequently, the application was moved by the respondents for permission to amend the plaint whereby seeking the relief qua mandatory injunction also.
(3.) IT has been held by the apex court in jagdish singh vs. 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. Subsections (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 proceeding, allow him to amend the plaint on such terms as 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." ;