Housing Society Ltd. Vs. Jayantibhai Naginbhai(D) Thr.LRS  INSC 26 (9
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.154 OF 2009 [Arising out
of S.L.P.(C)No.9931 of 2008] Alkapuri Co-operative Housing Society Ltd.
.....Appellant Versus Jayantibhai Naginbhai (deceased) Thr.LRs.
appeal is directed against the judgment and order dated 03rd March 2008 passed
by a learned Single Judge of 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 amendment to the plaint, was allowed.
basic fact of the matter is not in dispute.
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 Judge, Surat which was earmarked as Regular Civil Suit No.617 of 1985.
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.A.No.154/09 @ SLP(C)No.9931/08
.... (contd.) -2- "Therefore the plaintiff humbly prays that, (1) be
pleased to restrain the defendants from interfering and causing obstruction on
the land situated in Surat City, Katargam Town Planning Scheme No.3 having
Final Plot No.29-B 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
(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 deem fit in the facts of this
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.
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.
representatives of the deceased respondent on or about 09th April 2003 filed an
application for amendment of the plaint in terms whereof they not only sought
to implead 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 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 :
SLP(C)No.9931/08 .... (contd.) -3- "... ...
the Town Planning Scheme the defendant No.1 in this matter has not handed over
the peaceful posession 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 sq.mts. land be
allotted for obtaining such relief the suit is filed.
Amendment No.3 (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 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 that is held responsible then the land equal to the Final Plot
No.29-B 3689 sq.mts. of other land be allotted to the 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."
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 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 C.A.No.154/09 @ SLP(C)No.9931/08 ....
(contd.) -4- furthermore opined that the respondents could not be permitted to
amend the plaint after a period of 18 years of filing of the suit.
High Court, however, as noticed hereinbefore, by reason of the impugned
judgment, reversed the said order dated 01st 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 Sampath Kumar v.
Ayyakannu & Anr. (2002) 7 SCC 559.
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 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 of the plot No.29-B, 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 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.
SLP(C)No.9931/08 .... (contd.) -5-
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 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.
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 appellant's suit being Suit No.617 of 1985, had filed a suit
subsequent thereto only with a prayer of grant of permanent injunction.
the year 2003, long after the deceased respondent's 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, can be granted only against the Corporation as Town
C.A.No.154/09 @ SLP(C)No.9931/08 .... (contd.) -6- 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-
appellant had nothing to do.
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
remedies as are available to them for the purpose of grant of allotment of an
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 of possession,
inter se, is required to be determined.
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 (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 exercised by the court even if the suit is barred by
SLP(C)No.9931/08 .... (contd.) -7-
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 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 O.I 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
Order I, C.P.C., the question of invoking the period of limitation would come
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 be allowed in spite of delay and laches in moving the same,
would depend upon the facts and circumstances of each case wherefor a judicial
evaluation would be necessary.
decision in the case of Pankaja (supra) itself is 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
amendment once incorporated relates back to the date of the suit.
However, the doctrine
of relation-back in 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
deemed to have been brought before the court on the date on which the
application C.A.No.154/09 @ SLP(C)No.9931/08 .... (contd.) -8- seeking the
amendment was filed. [See observations in Siddalingamma v. Mamtha Shenoy (2001)
8 SCC 561]."
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 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 effective
possession of the suit land. If that be so, in our opinion, the
plaintiff-respondents in effect and 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.
the reasons aforementioned, we are of the opinion that the High Court committed
a jurisdictional error in interfering 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.
SLP(C)No.9931/08 .... (contd.) -9-
if the respondents have independent cause of action against the Municipal Corporation,
they may take recourse to such remedies which are available in law.
.........................J. [S.B. SINHA]
.........................J. [DR. MUKUNDAKAM SHARMA]