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

                      [2009) 1 S.C.R. 157


  ALKAPURI CO-OPERATIVE HOUSING SOCIETY LTD.                        A
                          v.
   JAYANTIBHAI NAGINBHAI (DECEASED) THR.LRS.
            (Civil Appeal No.154 of 2009)
                      JANUARY 9,12009
                                                                    B
 [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

     CODE OF CIVIL PROCEDURE, 1908:

     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.

                          Case Law Reference:

          (2002) 1 sec 559         referred to              para 8

c         (2004) s sec 415         referred to              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.

        Amar Dave and Rishi Agrawala (for E.C. Agrawala) for the
    Appellant.
E
        K.K. Trivedi, Dattartray Vyas and Manish Sharma for the
    Respodent.

          The following Order o.f the Court was delivered

F                               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
        Authority on or about 08th May 1985 before the learned Civil              B
        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
             defendants.                                                          E

             (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 order dated 18th December 1985. Respondent
                                                                                  G
        thereafter filed an application for his impleadment in the suit
        filed by the appellant herein. We are informed at the Bar that
        the said matter is pending before the Gujarat High Court.

             6. Legal representatives of the deceased respondent on
                                                                                  H
    160         SUPREME COURT REPORTS                 [2009) 1 S.C.R.


A or about 09th April 2003 filed an application for amendment of
  the plaint in terms whereof they not only sought to imp lead Town
  Planner, Surat Municipal Corporation but also Surat Municipal
  Corporation as such as party defendants. In the said application
  for amendment, respondents, inter alia, contended that having
8 regard to an order of injunction passed in the suit by the
  appellant, they did not obtain peaceful possession of the plot
  in question. On the aforementioned premise, the following
  paragraphs were sought to be added in the plaint :

          "
c
          Alternatively,

          Below the Town Planning Scheme the defendant No.1 in
          this matter has not handed over the peaceful posession
D         of the Final Plot No.29-B, if the Honourable Court should
          arrive on such decision then in these circumstances the
          defendants in this matter or the defendant who is held
          responsible then from the said defendant the peaceful
          possession of the Final Plot No.29-B be allotted from the
          defendant Nos.2-3 from other lands admeasuring 3689
E
          sq.mts. land be allotted for obtaining such relief the suit is
          filed.

          Amendment No.3

F         (1-a) Alternatively if the Honourable Court arrives at the
          conclusion that in this matter the peaceful possession of
          the suit Final Plot No.29-B of the defendant No.1 is not
          handed over to the plaintiff then in these circumstances the
          final Plot No.29-B 3689 sq.mts. of land peaceful
G         possession be awarded from the defendant or any
          defendant held responsible, and the decree to this effect
          be passed in favour of the plaintiff and if the Honourable
          Court does not find it appropriate to pass such orders then
          from amongst the defendants paiki any of the defendants
H         that is held responsible then the land equal to the Final Plot
 ALKAPURI CO-OPERATIVE HOUSING SOCIETY LTD. v.              161
    JAYANTIBHAI NAGINBHAI (DECEASED) THR.LRS.
      No.29-B 3689 sq.mts. of other land be allotted to the        A
      plaintiff, and hand over the peaceful possession in favour
      of the plaintiffs, for this if found necessary then the
      Commissioner of appropriate authority be appointed and
    · accordingly the possession of the land be handed over, be
      pleased to pass such orders in the interest of justice."     B

     7. The said application for amendment of plaint was
dismissed by the learned 3rd Additional Sr. Civil Judge on 01st
December 2007, inter alia, opining that having regard to the
provisions of Section 487 of the Bombay Provincial Municipal C
Corporation Act, no suit could have been filed against the
Corporation until expiration of one month from the date of
service of notice issued for the said purpose. It was furthermore
opined that the respondents could not be permitted to amend
the plaint after a period of 18 years of filing of the suit.
                                                                  D
     8. The High Court, however, as noticed hereinbefore, by
reason of the impugned judgment, reversed the said order
dated 01 st December 2007, inter alia, relying on or on the basis
of the decisions of this Court in the case of Pankaja & Anr. v.
Yellappa (Dead) by LRs & Ors. (2004) 6 SCC 415 and E
Sampath Kumar v. Ayyakannu & Anr. (2002) 7 SCC 559.

      9. Mr. Amar Dave, learned counsel appearing on behalf
of the appellant would submit that the High Court committed a
serious error in passing the impugned judgment insofar as it F
failed to take into consideration that the plaintiff-respondents,
by reason of the said application for amendment of the plaint,
sought to change the entire nature and character of the suit.
According to the learned counsel, the plaintiff-respondents in
their suit proceeded on the basis that they were in possession G
of the plot No.29-8, i.e., the plot in suit. However, as no order
of injunction had been passed in the said suit, as had been
prayed for by the deceased respondent and furthermore in view
of the fact that an order of injunction had been passed in favour
of the appellant in its suit; they have not only sought to implead
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    162        SUPREME COURT REPORTS                   [2009] 1 S.C.R.


A the Town Planner as a party defendant in the suit but had prayed
  for an alternative relief to grant allotment of an alternative plot
  in the event they are not found to be in possession of the said
  plot.

B        10. Mr. K.K. Trivedi, learned counsel appearing for the
    respondents would contend that whereas the appellant herein
    had filed a suit questioning the legality and/or validity of the Town
    Planning Scheme, in effect and substance, by reason of the
    amendment sought for in the plaint, the deceased respondent
                                                                            ..
    prayed for implementation of the Town Planning Scheme. In that
c   view of the matter, the learned counsel would contend that
    neither only the question of limitation arises but also if the
    amendment of the plaint, as prayed for, is allowed, the real
    issue between the parties would be determined as a result
    whereof multiplicity of proceedings can be avoided.
D
        11. It is unfortunate that two suits filed by the parties hereto
  as far back as in 1985 are still pending before the learned Civil
  Judge for one reason or the other. The fact, however, remains
  that the deceased-respondent who were was not a party to the
E appellant's suit being Suit No.617 of 1985, had filed a suit
  subsequent thereto only with a prayer of grant of permanent
  injunction.

        12. In the year 2003, long after the deceased respondent's
F prayer  for injunction had been rejected, his legal representatives
  filed the aforementioned application for amendment of the
  plaint. A bare perusal of the prayers made in the said
  application clearly goes to show that by reason thereof the no
  prayer has been claimed by the respondents as against the
  appellant herein. The alternative prayer, if it is to be granted,
G
  can be granted only against the Corporation as Town Planner
  as also as the local authority in their statutory capacities,
  whether such an alternative plot could be allotted to the plaintiff-           ..
  respondents is a matter of concern by and between the Town
  Planner and the plaintiff-respondents wherewith the defendant-
H
       ALKAPURI CO-OPERATIVE HOUSING SOCIETY LTD. v.                 163
          JAYANTIBHAI NAGINBHAI (DECEASED) THR.LRS.
       appellant had nothing to do.                                         A

             13. Respondents, we may notice, in their counter affidavit
       filed before us themselves have categorically stated that they,
       in law, are entitled to take recourse to such remeaies as are
       available to them for the purpose of grant of allotment of an        8
       alternative plot and/or for implementation of the Town Planning
       Scheme. If they had an independent cause of action against
       the Corporation either in its capacity as a town planner or as a
       local authority, in our opinion, the same by itself cannot be a
       ground for filing an application for amendment in the suit
       pending between the parties wherein, inter alia, the question
                                                                            c
       of possession, inter se, is required to be determined.

             14. The High Court as also the learned counsel appearing
       for the respondents, as noticed hereinbefore, have strongly
       relied upon the decision of this Court in the case of Pankaja        D
!-     (supra) wherein relying on or on the basis of a decision of this
       Court in the case of L.J. Leach & Co. Ltd. v. Jardine Skinner
       & Co. AIR 1957 SC 357, this Court opined that in an
       application for amendment of the plaint it may have to be kept
       in mind that the discretionary jurisdiction in that behalf can be    E
       exercised by the court even if the suit is barred by limitation.

            15. It is neither in doubt nor in dispute that the court's
       jurisdiction to consider an application for amendment of
       pleading is wide in nature, but, when, by reason of an               F
       amendment, a third party is sought to be impleaded not only
       the provisions of O.VI R.17, Code of Civil Procedure (C.P.C.)
       but also the provisions of 0.1 R.10, C.P.C. would come into play.
       When a new party is sought to be added, keeping in view the
       provisions of sub-rule (5) of Rule 10 of Ord.er I, C.P.C., the
                                                                            G
       question of invoking the period of limitation would come in.

....        16. The High Court, in our opinion, in a case of this nature,
       should not have interfered with the discretionary jurisdiction
       exercised by the learned 3rd Additional Sr. Civil Judge. The
       question as to whether an application for amendment should           H
    164        SUPREME COURT REPORTS                 [2009] 1 S.C.R.


A be allowed in spite of delay and !aches in moving the same,
  would depend upon the facts and circumstances of each case
  wherefor a judicial evaluation would be necessary.

       17. The deci::.ion in the case of Pankaja (supra) itself is
8 an authority for that proposition. So far as the decision in the
  case of Sampat Kumar (supra) is concerned, this Court has
  struck a bit different note therein as it was observed :

          "10. An amendment once incorporated relates back to the
          date of the suit. However, the doctrine of relation-back in
c         the context of amendment of pleadings is not one of
          universal application and in appropriate cases the court
          is competent while permitting an amendment to direct that
          the amendment permitted by it shall not relate back to the
          date of the suit and to the extent permitted by it shall be
D         deemed to have been brought before the court on the date
          on which the application seeking the amendment was
          filed. [See observations in Siddalingamma v. Mamtha
          Shenoy (2001) 8 SCC 561]."

E       18. There cannot be any doubt or dispute that an
  application for amendment of the plaint seeking to introduce a
  cause of action which had arisen during the pendency of the
  suit stands on a different footing than the one which had arisen
  prior to the date of institution of the suit. We have noticed
F hereinbefore that the plaintiff-respondents in their application
  for amendment of the plaint themselves accepted the fact that
  the appellant herein not only had filed a suit prior in point of time
  to the suit filed by the deceased respondent but had also
  obtained an injunction as a result whereof they did not obtain
G effective possession of the suit land. If that be so, in our opinion,
  the plaintiff-respondents in effect a~d substance are seeking
  to alter the basic structure of the suit which in the case of
  Sampath Kumar (supra) itself has been held to be
  impermissible.

H         19. For the reasons aforementioned, we are of the opinion
      ALKAPURI CO-OPERATIVE HOUSING SOCIETY LTD. v. 165
         JAYANTIBHAI NAGINBHAI (DECEASED) THR.LRS.

      that the High Court committed a jurisdictional error in interfering   A
      with the well considered judgment and order of the learned 3rd
      Additional Sr. Civil Judge rejecting the application filed by the
      respondents for amendment of the plaint. The impugned
      judgment is, therefore, set aside and the appeal is allowed.
                                                                            B
          20. However, if the respondents have independent cause
      of action against the Municipal Corporation, they may take
      recourse to such remedies which are available in law.

      R.P.                                             Appeal allowed.
                                                                            c




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