ALKAPURI CO-OPERATIVE HOUSING SOCIETY LTD. versus JAYANTIBHAI NAGINBHAI (DECEASED) THR.LRS.

Citation: [2009] 1 S.C.R. 157 · Decided: 09-01-2009 · Supreme Court of India · Bench: S.B. SINHA, MUKUNDAKAM SHARMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009) 1 S.C.R. 157 
ALKAPURI CO-OPERATIVE HOUSING SOCIETY LTD. 
v. 
JAYANTIBHAI NAGINBHAI (DECEASED) THR.LRS. 
(Civil Appeal No.154 of 2009) 
JANUARY 9,12009 
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] 
CODE OF CIVIL PROCEDURE, 1908: 
A 
B 
Or. 6, r. 17 rlw Or. 1, r. 10 - Amendment of plaint - Period C 
of limitation - Suit filed in 1985 by an allottee against Co-
operative Housing Society for injunction in respect of a plot 
- Application for temporary injunction rejected - Legal 
representatives of plaintiff(respondents) filing an application 
for amendment of plaint seeking impleadment of Municipal o 
Corporation as also possession of the plot or allotment of an 
alternative plot- Amendment declined by trial court, inter alia, 
as barred by limitation, but allowed by High Court - HELD: 
When, by reason of an amendment, a third party is sought to 
be impleaded, not only the provisions of Or. 6, r. 17 but also 
E 
the question of invoking the period of limitation as envisaged 
by the provisions of Or. 1 r. 10 would come into play- The High 
Court, in a case of this nature, should not have interfered with 
the discretionary jurisdiction exercised by trial Court -
Respondents in their application for amendment of plaint 
F 
themselves accepted the fact that appellant not only had filed 
a suit prior in point of time to the suit filed by deceased 
respondent but had also obtained an injunction as a result 
whereof they did not obtain effective 'possession of the suit 
land - Thus, respondents in effect and substance are seeking 
to alter the basic structure of the suit which is impermissible 
G 
- High Court committed a jurisdictional error in interfering with 
the well considered judgment and order of the trial court 
rejecting the application filed by respondents for amendment 
157 
H 
158 
SUPREME COURT REPORTS 
[2009] 1 S.C.R. 
A of plaint - Judgment of High Court is set aside - Delay/ 
Lach es. 
Pankaja & Anr. v. Yellappa (Dead) by LRs & Ors. (2004) 
6 SCC 415 and Sampath Kumar v. Ayyakannu & Anr. (2002) 
B 7 SCC 559, referred to. 
c 
Case Law Reference: 
(2002) 1 sec 559 
(2004) s sec 415 
referred to 
referred to 
para 8 
para 8 
CIVIL APPELLATE JURISDICTION: Civil Appeal No.154 
of 2009. 
~ 
From the final Order and Judgment dated 3.3.2008 of the 
D High Court of Gujarat at Ahmedabad in Special Civil 
Application No. 451 of 2008. 
E 
F 
Amar Dave and Rishi Agrawala (for E.C. Agrawala) for the 
Appellant. 
K.K. Trivedi, Dattartray Vyas and Manish Sharma for the 
Respodent. 
The following Order o.f the Court was delivered 
ORDER 
1. Leave granted. 
2. This appeal is directed against the judgment and order 
dated 03rd March 2008 passed by a learned Single Judge of 
G the High Court of Gujarat in Special Civil Application No.451 
of 2008 whereby and whereunder the said Application against 
an order dated 01st December 2007 passed by the learned 
3rd Additional Sr. Civil Judge, Surat in Regular Civil Suit No.669 
of 1985 dismissing an application of the respondent seeking 
H 
ALKAPURI CO-OPERATIVE HOUSING SOCIETY LTD. v. 
159 
JAYANTIBHAI NAGINBHAI (DECEASED) THR.LRS. 
;I., 
amendment to the plaint, was allowed. 
A 
3. The basic fact of the matter is not in dispute. 
4. Plaintiff-appellant filed a suit against Surat Municipal 
Corporation in its capacity both as a town planner and as Local 
B 
Authority on or about 08th May 1985 before the learned Civil 
Judge, Surat which was earmarked as Regular Civil Suit 
~ 
No.617 of 1985. Deceased-respondent herein, claiming to be 
an allottee in respect of plot no.29-B of the Town Planning 
Scheme No.3 also filed a suit against the appellant herein 
praying, inter alia, for the following reliefs: 
c 
"Therefore the plaintiff humbly prays that, 
(1) be pleased to restrain the defendants from 
interfering and causing obstruction on the land situated in 
D 
Surat City, Katargam Town Planning Scheme No.3 haviny 
Final Plot No.29-8 or cause to interfere, and to restrain 
from causing any interference or obstruction in their 
possession and occupation, nor put up any compound wall 
or fencing, such injunction orders be passed against the 
E 
defendants. 
(2) be pleased to award the entire costs of this suit from 
':/' 
the defendants. 
(3) be pleased to grant any other and further relief as may 
F 
deem fit in the facts of this matter." 
5. Indisputably, in the said suit, the respondent-plaintiff filed 
an application for grant of temporary injunction which was 
rejected by an or

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