VINOD K.SHARMA, J. - (1.) THE present appeal arises out of the order passed by the learned Addl. District Judge, Faridabad vide which the judgment and decree passed by the learned trial Court was set aside and the case was remanded back for fresh decision in view of the framing of additional issues arising out of the amendment of plaint.
(2.) THE plaintiff-petitioner had filed a suit seeking a decree for specific performance of agreement dated 21.6.1990. On the pleadings of the parties the learned trial Court was pleased to frame the following issues :- "1. Whether the plaintiff had entered into an agreement to purchase the suit property, as alleged ? OPP 2. Whether the plaintiff has always been ready and willing to perform his part of agreement, as alleged ? OPP 3. Whether the suit is not maintainable ? OPD 4. Whether the plaintiff has suppressed material facts, if so, its effect ? OPD 5. Whether agreement dated 21.6.1990 was obtained by the plaintiff by mis- representation or fraud ? OPD 6. Relief." The learned trial Court decided all the issues in favour of the petitioner herein, however, keeping in view the fact that the entire land except land measuring 8 kanals situated in khasra Nos. 72/24 and 72/17 was acquired by the State Government. The agreement was found to be not executable and alternative relief of recovery of Rs. 2,75,000/- i.e. the advance money paid by the petitioner-plaintiff along with interest at the rate of 12% per annum was ordered to be refunded. However, decree for specific performance qua 8 kanals of land was passed in favour of the plaintiff. The petitioner-plaintiff challenged the judgment and decree passed by the learned trial Court before the learned Addl. District Judge. In the said appeal an application under Order 6 Rule 17 was made by the plaintiff-petitioner for amendment of the plaint, wherein prayer clause was sought to be substituted by the following :- "It is further prayed that on acquisition of the land, it may be directed that the defendant No. 1 shall be paid only the balance unpaid sale price amounting to Rs. 4.25 lacs out of compensation paid in respect of land acquired out of the suit land and the balance compensation awarded by the Collector/Court in respect of the suit land shall be payable to the appellant/plaintiff. The Court may also give allowance to the respondent for the services, time and money spent in perusing the legal claim if any."
(3.) THE said application was allowed and thereafter amended written statement was filed. In view of the amended pleadings the learned lower appellate Court was pleased to frame the following additional issues :- "5A. Whether the plaintiff is entitled to recover any damages/compensation on account of acquisition of the suit land ? If so, to what amount ? OPP 5B. Whether the suit is not maintainable in the present form in view of preliminary objection No. 6 of the amended written statement ? OPD" ;