LexBHARAT KARSONDAS THAKKAR versus M/S KIRAN CONSTRUCTION CO. & ORS.
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[2008] 6 S.C.R. 59 BHARAT KARSONDAS THAKKAR A II. M/S KIRAN CONSTRUCTION CO. & ORS. (Civil Appeal No. 2573 of 2008) APRIL 9, 2008 B (A.K. MATHUR AND ALTAMAS KABIR, JJ.) Specific Relief Act, 1963: ss. 15 and 19 - Suit for specific performance of agreement - Amendment of plaint seeking declaration that consent c decree passed in another suit involving same property be declared null and void and not binding - lmpleadment of party to the said suit, who was not party to instant agreement, also sought-HELD: High Court erred in allowing amendment since it completely changed the nature and character of suit from D being a suit for specific performance to one for declaration of title and possession - Besides the party sought to be impleaded is a third party and does not tail within category of "parties to the agreement" - Order of High Court set aside - Applicant would be at liberty to file a separate suit challenging E the consent decree invoking relevant provisions of Limitation Act in the circumstances. One 'SRV' was granted the suit lands on a lease of 999 years by the State Government. On his death, his legal F . representatives (the lessees) entered into an agreement on 1.10.1973 to sell their rights and interest in the suit land to a party who ultimately brought the benefits of the agreement to a partnership formed by him along with others. On 12.6.1979 the State Government executed a lease in favour of the lessees for a total term of 60 years. G On 18.6.1979 the lessees entered into another agreement T with a developer company granting them development right over the suit properties stating therein the fact . of the lessees having entered into the earlier agreement dated 59 H 60 SUPREME COURT REPORTS [2008] 6 S.C.R. A 1.10.1973. The Developers entered into a furlher ~ agreement with a Construction Company namely respondent no. 1, to transfer their beneficial interests in the suit land. On 18.2.1980 the appellant and another partner having beneficial ir:iterests under the agreement B dated 1.10.1973 filed Suit no. 252 of 1980 in the High Court against other partners. In the said suit a Court Receiver t was appointed and put into possession of the suit lands. On 15.5.1981, the lessees terminated the agreement dated 18.6.1979 with the Developers. This led to filing of c Suit no. 1578 of 1981 instituted by respondent no. 1- Construction Company against the lessees and the Developers for specific performance of the agreements dated 18.6.1979 and 24.8.1979. Meanwhile, the parties in : Suit no. 252 of 1982 entered into a settlement. A consent D decree was passed. Pursuant thereto the Court Receiver took out a Notice of Motion in Suit No. 1578 of 1981 filed by respondent no. 1 praying that order of injunction made on 1.7.1982 be vacated. Respondent no. 1 took out Chamber Summons in his Suit no. 1578 of 1981 seeking E to amend the plaint by joining respondent nos. 13 to 19 as defendants and also to seek a declaration that the consent decree passed in Suit no. 252of1980 was illegal, null and void and liable to be set aside. The Single Judge dismissed the Chamber Summons mainly on the ground F of limitation holding that the relief claimed by way of amendment of the plaint for setting aside the consent decree had its origin in the agreement dated 1.10.1973 and the same was not challenged by respondent no. 1 earlier despite having knowledge thereof. However, the Division G Bench of the High Court allowed amendment of the plaint. In the instant appeal, the question for consideration before the Court was: whether the Division Bench of the ' High Court had exercised its jurisdiction correctly by allowing the amendment to implead the appellant as a H party to the suit for specific performance filed by BHARAT KARSONDAS THAKKAR v. M/S KIRAN o1 CONSTRUCTION CO. & ORS. respondent no.1 and also by allowing the amendment to A the pleadings and the prayer to declare the decree passed in Suit No. 252 of 1980 as illegal, null and void and liable to be set aside. Allowing the appeal, the Court HELD: 1.1 The Division· Bench of the High Court erred in law in allowing the amendment of the plaint so·ught for by plaintiff-respondent no.1. Even if the bar of limitation B is not taken into account, it is to be considered whether the amendment of the pleadings could have at all been c allowed by the High Court since it completely changed the nature and charac
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