BHARAT KARSONDAS THAKKARversusM/S KIRAN CONSTRUCTION CO. & ORS.

                          [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
          a
    being 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
.   representatives (the lessees) entered into an agreement F
    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
  Bench of the High Court allowed amendment of the plaint.
G
       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
                                                               B
      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
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 character of the suit from being a suit for
specific performance of an agreement to one for
declaration of title and possession followed by a prayer
for specific performance of an agreement of sale entered
                                                                0
into between its assignees and the vendors of the
assignees. Further, Clause (a) of Section 15 of the Specific
Relief Act, 1963 entitles any party to the contract to seek
specific performance of such contract. Admittedly, the
appellant is a third party to the agreement and does not,
therefore, fall within the category of "parties to the E
agreement". The appellant also does not come within the
ambit of Section 19 of the said Act, which provides for
relief against parties and persons claiming under them
by subsequent title. [para 21] [70-F, G; 71-A, B, C, D]
                                                                F
      Kasturi vs. lyyamperumal and others (2005) 6 SCC 733;
Sampath Kumar vs. Ayyakannu and Anr. 2002 (7) SCC 559 -
relied on.
     1.2 In the instant case, although, the fact regarding
the earlier agreement dated 1.10.1973 was brought to the G
notice of the advocates for respondent no.1 on 27th March,
1984, no steps were taken by the said respondent to
amend the plaint at that stage. Instead, he waited till a
consent decree was passed before applying for
amendment of the plaint. The proper course of action for H
    62        SUPREME COURT REPORTS               [2008] 6 S.C.R.


A respondent no.1 would have been to challenge the
   consent decree not in its suit for specific performance,
   but in a separate suit for declaration that the consent
  decree ought not to have been passed and the same was
  not binding on the respondent. By seeking amendment
B of the plaint in its suit for specific performance, respondent
  no.1 has substantially changed the nature and character           ;,

  of the original suit, which is not permissible in law.
  Respondent no.1 was thus proceeding before a wrong
  forum to establish its stand that the decree obtained by
c the appellant was a nullity and was not binding on it. In
  that view of the matter, although, the order of the Division
  Bench of the High Court impugned in the instant appeal
  is set aside, respondent no.1 may, if so advised, file a
  separate suit to challenge the consent decree invoking
  relevant provisions of the Limitation Act in view of the fact
D
  that it had been pursuing its claim before the wrong forum.
  [para 22, 24-25] [71-F, G, H; 72-A; 73-A, BJ                      I.

         Anil Kumar Singh vs. Shivnath Mishra 1995 3 SCC 147
    - relied on.
E        Durga Prasad vs. Deep Chand AIR 1954 SC 75 - held
    inapplicable.
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2573 of 2008.
F        From the final Judgment and Order dated 16.11.2006 of
    the High Court of Judicature at Bombay in Appeal No. 745 of
    2001 in Chamber Summons No. 1203 of 2000 in Suit No. 1578
    of 1981

G       F. De'Vitre, N. Janardanan, Mahesh Agarwal, Rishi
    Agrawala, Gaurav Goel, Amit Sharma, Ashutosh Garg and E.C.
    Agrawala for the Appellant.
         Buddy A. Ranganadhan, Dimple Shah, Shiv Kumar Suri,
    Rajesh Kumar and S.S. Khanduja for the Respondents.
H
              BHARAT KARSONDAS THAKKAR v. MIS KIRAN                            63
             CONSTRUCTION CO. & ORS. [ALTAMAS KABIR, J.]
      "'·         The Judgment of the Court was delivered by                        A
                  ALTAMAS KABIR, J. 1. Leave granted.
                  2. On 27 .5.1949 one Sowar Ramji Vaity was given a grant
            by the Collector of Thane, which entitled him to lease of the lands
                                                          a
            in Serial Nos.83-91 in village Mulund for term of 999 years. B
      .I    Sowar Ramji Vaity died in 1965 leaving behind him four legal
            representatives, namely, Jagannath, Babu, Vishnu and Bhaskar.
            On 1.10.1973 the Vaitys entered into an Agreement with one
            K.L. Danani to sell their rights and interests in the said land for
            a total consideration of Rs.2 lakhs. In between April and June c
            1974, Mr. K.L. Danani constituted a partnership firm with one
            Mr. K.B. Thakkar and S.S. Thakkar under the name of Mis Swas
            Construction Company. B.K. Thakkar, the appellant herein, who
            was then a minor, was also admitted to the benefits of the
            partnership firm. As his contribution towards the partnership firm
                                                                                D
            K.L. Danani brought the benefits of the said Agreement dated
      }-
            1.10.1973 to the partnership firm. In 1976, with the enactment
_.\
            of the Urban Land (Ceiling and Regulation) Act, 1976, K.L.
            Danani claiming to be in possession of the lands in question
            under the Agreement dated 1.10.1973 filed a statement as
            required under Section 6(1) of the aforesaid Act. On 12.6.1979 E
            the Government of Maharashtra executed a lease in favour of
            the Vaitys for a total term of 60 years.
                  3. Soon, thereafter, on 18.6.1979 the Vaitys entered into
            another Agreement with Mis Modern Development Corporation F
            granting them development rights over the same properties.
            Clause 14 of the Agreement mentioned the fact that the Vaitys
            had entered into an Agreement to sell the said lands to Mis
            Thakkar and Associates. Mis Modern Development
            Corporation, in their turn entered into an Agreement with Kiran
                                                                                     G
            Construction Company, the respondent No.1 herein, to transfer
            its beneficial interest in the suit land, except for Sl.No.91, in favour
      ;I    of the said respondent No.1. Clause 12 of the said Agreement
            required Modern Development Corporation to obtain
            confirmation from Mis Thakkar and Associates that there was
                                                                                     H
    64       SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A   no subsisting Agreement for sale in their favour in respect of
    the property agreed to be sold.

         4. On 18.2.1980 the present appellant Bharat K. Das
   Thakkar and K.B. Thakkar filed Suit No.252 of 1980 in the
   Bombay High Court against K.L. Danani and S.S. Thakkar
8 seeking a declaration that a partnership had subsisted between
   them and that K.L. Danani and S.S. Thakkar have retired from
   S~as Construction Company, and, in the alternative, for an order
   of dissolution of partnership, accounts, costs and other reliefs.
   On Notice of Motion No.283 of 1980 filed by the appellant and
C K.B.Thakkar in Suit No.252 of 1980, K.L. Danani gave an
   undertaking not to part with the possession of the suit land
 • pending disposal of the Notice of Motion. The said Notice of
   Motion No.283 of 1980 was finally disposed of on 9.10.1980
   and a Court Receiver was appointed by the Bombay High Court
D and put into possession of the suit lands.
         5. On 15.5.1981 the Vaitys terminated the Agreement           \
  dated 18.6.1979 with M/s Modern Development Corporation
  Limited. Such termination was followed by Suit No.1578 of 1981
E instituted by the respondent No.1on7.9.1981 against the Vaitys
  and the partners of M/s Modern Development Corporation
  Limited for specific performance of the Agreements allegedly
  executed on 18.6.1979 and 24.8.1979. On 14.9.1981 the
  Bombay High Court restrained the Vaitys and the partners of
  Mis Modern Development Corporation Limited from selling,
F transferring or further parting with possession of the suit lands.
  Notice of Motion No.1271 of 1981 on which the above restraint
  order was passed was heard on 1. 7 .1982 and the Vaitys were
  restrained during the pendency of the Suit No. 1578 of 1981
  from selling, transferring, encumbering the suit property forming
G the subject matter of the Agreement dated 18.6.1979 entered
  into by the Vaitys with M/s. Modern Development Corporation
  Limited.
       6. During pendency of the said suit for specific
H performance filed by respondent No.1, all the parties to Suit
         BHARAT KARSONDAS THAKKAR v. M/S KIRAN                        65
        CONSTRUCTION CO. & ORS. [ALTAMAS KABIR, J.]

-f.    No.252 of 1980 arrived at a comprehensive settlement which A
       was reduced into consent terms which were filed in the said
       suit pending before the Bombay High Court. By its order dated
       6.5.1998 the Bombay High Court passed a decree in Suit
       No.252 of 1980 on the basis of the consent terms filed by the
       parties to the suit. By virtue of the said decree, the Vaitys, inter B
       alia, admitted that an Agreement had been executed on
r
       1.10.1973 in favour of K.L. Danani and that M/s Swas
       Construction Company was placed in possession of the suit
       lands on 3.8.1975.

              7. Under the consent decree the Court Receiver was           c
        entrusted to discharge certain functions which had been agreed
        upon and recorded in the consent decree. Pursuant thereto in
        January 1999 the Court Receiver took out a Notice of Motion
      . No.140of1999 in Suit No.1578of1981 filed by the Respondent
        No.1 praying that the order of injunction made on 1. 7 .1982 be D
        vacated. On 25.8.1999 the Vaitys also took out Notice of Motion
).
        No.2700 of 1999 in the aforesaid suit for the same relief. During
        the pendency of the suitthe respondent No.1 took out Chamber
        Summons No.1203 of 2000 in his suit seeking to amend the
        plaint by joining the respondent No.13 to 19 as defendants and E
        to also challenge the consent decree passed by the Bombay
        High Court in Suit No.252 of 1980 on 6.5.1998: The High Court
        dismissed the Chamber Summons No.1203 of 2003 filed by
        the respondent No.1 in his suit and also vacated the injunction
        granted on 1.7.1982. As a consequence the other two. notices F
        of Motion for vacating the order of injunction dated 1. 7 .1982
        were allowed. Aggrieved by the said order of the learned Single
        Judge dated 21.6.2001, the respondent No.1 filed Appeal No.
        745 of 2001 before the Division Bench of the High Court. On
        16.11.2006 the High Court allowed the aforesaid appeal,
                                                                          G
        thereby allowing the amendment of the plaint and directed that
        the amendment to the plaint be effected accordingly.
.I'         8. It is the said order of the Division Bench which is the
       subject matter of challenge in the present appeal and raises
       the question as to whether in a suit for specific performance of    H
    66        SUPREME COURT REPORTS                    [2008) 6 S.C.R.


A an agreement for sale of immovable property instituted by the
  beneficiary of the agreement against the vendor, a stranger or
  a third party to the agreement who had acquired an interest in
  the same property is either a necessary or a proper party to the
  suit. In other words, could the appellant herein, who had acquired
B an independent right in the suit property by way of a separate
  decree but was not a party to the agreement between the
  respondent No.1 and Mis Modern Development Corporation,                 '"·
  be added as a party in the suit for specific performance filed by
  respondent No.1 and whether the decree passed in his favour
c could be assailed by the respondent No.1 in his suit for specific
  performance.
        9. Although, we have set out the facts which are relevant
  for an understanding of the circumstances in which the order
  impugned in this appeal came to be passed, the scope of the ·
D appeal is confined to the question whether the Division Bench
  of the High Court had exercised its jurisdiction correctly by
  allowing the.amendment to implead the appellant as a party to
  the suit for specific performance filed by respondent No.1 and
  also by allowing the amendment to the pleadings and the prayer
E in the plaint to include the following prayers:
         "a(i) that this Hon'ble Court be pleased to declare that the
         decree passed on 5th May 1998 in Suit No.252 of 1980
         in so far as it relates to the Suit Property more particularly
         described in Exhibit 'A' hereto is illegal, null and void and
F        is liable to be quashed and set aside;
         a(ii) that it may be declared that the decree dated 5th May
         1998 passed in Suit No.252 of 1980 in so far as it relates
         to the Suit Property more particularly described in Exhibit
G
         A hereto is not binding upon the Plaintiffs herein;
         a(iii) that the Court Receiver, High Court, Bombay
         appointed Receiver in the Suit property more particularly
         described in the Exhibit A hereto be discharged;
         b(iii) that the Defendant Nos. 1 to 4(c), and 13 to -18 and
H
         BHARAT KARSONDAS THAKKAR v. M/S KIRAN                        67
        CONSTRUCTION CO. & ORS. [ALTAMAS KABIR, J.]
"1'·
            herein be ordered and decreed to pay to the Plaintiffs as A
            and by way of exemplary/punitive damages the sum of
            Rs.50 crores together with interest thereon at the rate of
            18% per annum from 5th May 1998 till payment or
            realisation.

            d(i) that pending hearing and final disposal of the Suit . B
y           operation of Order dated 5th May 1998 passed in Suit
            No.252 of 1980 in so far as it relates to the Suit property
            more particularly described in Exhibit 'A' hereto be stayed."

              10. Appearing in support of the appeal, Mr.F. De'Vitre,      c
       Senior Advocate, submitted that the learned Single Judge of
       the Bombay High Court had dismissed Chamber Summons
       No.1203 of 2000 filed by the respondent No.1 herein in Suit
       No.1578of1981, mainly on the ground of limitation holding that
       the relief claimed by way of amendment of the plaint for settlng
                                                                        D
       aside the consent decree had its origin in the Agreement dated
;J.    1.10.1973 executed by the Vaitys in favour of K.L. Danani and
       that the same had not been challenged earlier by the respondent.
       No.1 despite having knowledge thereof.

             11. Mr. De'Vitre, submitted that apart from the above, the E
       fact relating to the earlier Agreement and the filing of Suit No.252
       of 1980 and the appointment of the Court Receiver and his
       taking possession of the suit properties were intimated to the
       learned advocate for the Respondent No.1 by the learned
       advocate for the petitioner and K.B. Thakkar by letter dated F
 j     27.3.1984 and at least since that date the respondent No.1 had
       knowledge of the earlier Agreement and the .consent decree,
       but he did not take any steps to amend the plaint of the suit filed
       by him on 7.9.1981 for specific performance of the Agreement
       said to have been executed between the Vaitys and the partners .
                                                                            G
       of M/s Modern Development Corporation and between M/s
       Modern Development Corporation and the respondent No.1.
.)-    Such amendment was sought to be made only on 5.10.2000 by .
       way of Chamber Summons No.1203 of 2000. Mr. De'Vitre
       submitted that even if the date of intimation of the filing of Suit
                                                                            H
    68        SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A   No. 252 of 1980 on 27.3.1984 is taken to be starting point of
    limitation, even then the later suit filed by respondent had stood
    barred by limitation, and it was so held by the learned Single
    Judge of the Bombay High Court while rejecting the Chamber
    Summons No.1203 of 2000 filed by the respondent No.1.
B         12. In addition to the above, Mr. De'Vitre submitted that by
    allowing the amendment sought for by the respondent No.1 of          "·
    his plaint, the Division Bench of the Bombay High Court had
    allowed the respondent No.1 to completely change the nature
    and character of his suit from one for specific performance of
c   an agreement to one for declaration of title against a third party
    to the agreement for which specific performance had been
    claimed. It was submitted that the suit, as amended, was no
    longer maintainable as one under Section 19 of the Specific
    Relief Ayt, 1963.
D
        13. In support of his aforesaid submission, Mr. De'Vitre
  referred to and relied on a decision of a three Judge Bench of         '
                                                                         >-

  this Court. in Kasturi vs. /yyamperuma/ and others [(2005) 6
  sec 733] where an identical question arose in almost identical
  circumstances, as to whether a third party or stranger to the
E contract could be added in a suit for specific performance merely
  in order to find out who is in possession of the contracted
  property or to avoid multiplicity of suits and such question was
  answered in the negative.

F       14. Mr. De'Vitre also referred to another decision of this
  Court in Anil Kumar Singh vs. Shivnath Mishra (1995 3 SCC
  147) where also, in an almost identical fact situation, this Court
  held that having regard to the provisions of Sections 15 and 16
  of the Specific Relief Act, 1963, the respondent in the said case
  was neither a necessary nor a proper party to adjudicate upon
G
  the dispute arising in the suit since he was not a party to the
  agreement of sale in respect of which specific performance had
  been prayed.
       15. Relying on the said decisions, Mr. De'Vitre urged that
H the decision of the Division Bench of the Bombay High Court
                                                                           ;
                                                                       ;


         BHARAT KARSONDAS THAKKAR v. MIS KIRAN                        169
        CONSTRUCTION CO. & ORS. [ALTAMAS KABIR, J.]
+.
      impugned in the present appeal was liable to be set aside.               A
               16. The submissions made on behalf of the appellant was
     . strongly opposed by Mr. Buddy A, Ranganadhan, learned
       advocate appearing for the respondents. It was submitted by
       him that no prejudice could be caused to the appellant by the
       amendment of the pleadings in the respondent's suit since filing B
r
     . of a separate suit for setting aside 'the consent decree would
       only lead to multiplicity of proceedings. In fact, in order to avoid
       sucn multiplicity of proceedings, the High Court-had very
       pragmatically allowed the amendments so that the said question
       could also be decided in the suit filed by the respondent No.1, ·       c
       inasmuch as, the subject matter of the suit of the respondent
       No.1 and the consent decree was one and tne same. It was
       urged that having regard to the nature of the claim of the
       respondent No.1, the High Court had on 1st July, 1982, restrained
       the Vaitys from selling, tranferring, encumbering, alienating or D
)      further parting with the suit property during the pendency of the
       suit filed by the respondent No.1.
            17. Mr. Ranganadhan submitted that in the interest of
      justice and for a complete adjudication of the rights of the parties
      inter-se in respect of the suit property, the amendment of the E
      plaint allowed by the High Court should not be disturbed and
      the interim order of injunction passed on 1. 7.1982 should be
      allowed to continue.
              18. Mr. Ranganadhan referred to the decision of a Bench F
1·     of three Judges of this Court in Durga Prasad vs. Deep Chand
       (AIR 1954 SC 75) which also involved a suit for specific
       performance by a prior purchaser against his vendor and a
       subsequent purchaser who had paid the purchase money to
       the vendor. In the said context, this Court held that in case the
                                                                             G
       suit filed by the prior purchaser is decreed, then the form of
       decree should be such as to direct specific performance of the
~      contract between the vendor and the prior transferee and to
       direct the subsequent transferee to join in the conveyance so
     ' as to pass on the title which resides in him to the prior transferee.
                                                                             H
   70         SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A It was observed that the only work required to be performed by
  the subsequent transferee was to pass on his title to the prior
  transferee. Mr. Ranganadhan submitted that in this case also,
  all that the appellant was required to do Jn the present suit was
  to pass on his title, obtained on the basis of the consent decree,
B to the respondent No.1 as plaintiff. Accordingly, in view of the
  aforesaid decision, it could not be said that the High Court
  committed any error in allowing the impleadment of the appellant
  in the suit or in allowing the prayers in the plaint to be amended
  to include a declaration for declaring the consent decree to be
c not binding on the plaintiffs.
        19. Reliance was also placed on another decision of this
  Court in Sam path Kumar vs. Ayyakannu and Anr. (2002 (7) SCC
  559) wherein while considering the provisions of Order 6 Rule
  17 of the Code of Civil Procedure, hereinafter referred to as the
D "Code", this Court observed that amendment of pleadings at a
  pre-tria! .stage should be liberally allowed.                          )._

        20. It was lastly submitted that even on the question of bar
  of limitation, the Division Bench of the High Court had erred in
  holding that the suit was not barred particularly when the
E amendment, which was necessitated by the consent decree,
  related back to the agreement dated 1st October, 1973. As a
  consequence, the limitation would run from the date of the
  consent decree and not from the date of the agreement dated
  1st October, 1973, although, the effect of the decree would relate
F back to the agreement of 1st October, 1973.
        21. Having carefully considered the submissions made on
  behalf of the respective parties, and the decisions cited on their
  behalf, we are of the view that the Division Bench of the High
G Court erred in law in allowing the amendment of the plaint sought
  for by the respondent No.1 herein as the plaintiff in the suit. Even
  if the bar of limitation is not taken into account, the plaintiff,
  namely, the respondent No.1 herein, is faced with the ominous
  question as to whether the amendment of the pleadings could
H have at all been allowed by the High Court since it completely
   BHARAT KARSONDAS THAKKAR v. M/S KIRAN                       71
  CONSTRUCTION CO. & ORS. [ALTAMAS KABIR, J.]

 changed the nature and character of the suit from being a suit      A
 for specific performance of an agreement to one for declaration
 of title and possession followed by a prayer for specific
 performance of an agreement of sale entered into between its
 assignee and the vendors of the assignees. Along with that is
 the other question, which very often raises its head in suits for   B
 specific performance, that is, whether a stranger to an
 agreement for sale can be added as a party in a suit for specific
 performance of an agreement for sale in view of Section 15 of
 the Specific Relief Act, 1963. The relevant provision of Section
 15 with which we are concerned is contained in clause (a) thereof   C
 and entitles any party to the contract to seek specific
 performance of such contract. Admittedly, the appellant herein
 is a third party to the agreement and does not, therefore, fall
 within the category of "parties to the agreement". The appellant
 also does not come within the ambit of Section 19 of the said
                                                                     0
 Act, which provides for relief against parties and. persons
 claiming under them by subsequent title. This aspect of the
 matter has been dealt with in detail in Kasturi's case (supra).
 While holding that the scope of a suit for specific performance
 could not be enlarged to convert the same into a suit for title
·and possession, Their Lordships observed that a third party or      E
 a stranger to the contract could not be added so as to convert a
 suit of one character into a suit of a different character.
      22. In the instant case, the appellant obtained the consent
decree on the strength of an agreement said to have been F
entered into between the Vaitys and K.L. Danani who brought ·
the said agreement to the partnership which was formed by him
with two other persons. Although, this fact was brought to the
notice of the learned advocates for the respondent No.1 on 27th
March, 1984, no steps were taken by the said respondent to G
amend the plaint at that stage. Instead, the respondent No.1
waited till a consent decree was passed before applying for
ameJ1dment of the plaint. The proper course of action for the
respondent No.1 would have been to challenge the consent
decree not in its suit for specific performance, but in a separate
                                                                   H
    72        SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A  suit for declaration that the consent decree ought not to have
   been passed and the same was not binding on the respondent.
   By seeking amendment of the plaint in its suit for specific
   performance, the respondent No.1 has created its own
   difficultieis by substantially changing the nature and character of
B the original suit, which is not permissible in law. If, as was held
   in Durga Prasad's case (supra), the impleadment of the                 '
   appellant was only for the purpose of joining him in the
   conveyance if the respondent No.1 's suit ultimately succeeded,
   the ratio of the said decision would possibly have been
c  applicable to the facts of this case. Unfortunately, that is not the
   case here, since the respondent No.1 has by amending the plaint
 · prayed for a declaration that the consent decree obtained by
   the appellant was not binding on him and also for a declaration
   that the consent decree was null and void and was liable to be
   quashed.
0
        23. In our view, the decision of this Court in Durga Prasad's
  case (supra), cannot be brought to the aid of the case made out
  by respondent No.1. Furthermore, the Division Bench of the High
  Court also appears to have committed an error in observing
E that the decision in Anil Kumar Singh's case (supra) was not
  applicable to the facts of this case, despite the fact that on a
  consideration of the provisions of Order 1 Rule 10.and Order
  22 Rule 10 of the Code, this Court held that since the plaintiff in
  the said matter was merely seeking the specific performance
F of an agreement of sale, any attempt to implead a third party to
  the contract in the suit would be hit by the provisions of Section      t

  15 (a) of the Specific Relief Act, 1963. In fact, in Anil Kumar
  Singh's case (supra) in a suit for specific performance, the
  respondent, who was not a party to the contract but wanted to
G be impleaded as a defendant on the ground that he had
  acquired subsequent interest as a co-owner by virtue of a decree
  obtained from the court, was held not entitled to be joined as
  defendant either under Order 1 Rule 3 or under Order 1 Rule
  10(ii) of the Code having regard to the provisions of Sections
H 15 and 6 of the Specific Relief Act, 1963.
 BHARAT KARSONDAS THAKKAR v. M/S KIRAN        73
CONSTRUCTION CO. & ORS. [ALTAMAS KABIR, J.]