BHARAT KARSONDAS THAKKAR versus M/S KIRAN CONSTRUCTION CO. & ORS.

BHARAT KARSONDAS THAKKAR versus M/S KIRAN CONSTRUCTION CO. & ORS.

The Division Bench erred in allowing amendment of the plaint as it completely changed the nature and character of the original suit for specific performance to one for declaration of title and possession; the party sought to be impleaded is a third party and does not fall within the category of 'parties to the agreement.' The proper remedy for the respondent was to file a separate suit challenging the consent decree, not to amend the existing suit.

Parties
Appellant: Bharat Karsondas Thakkar; Respondents: M/s Kiran Construction Co. & Ors.
Jurisdiction
India
Judgment Date
09 April 2008
Procedural Posture
Civil Appeal / Appeal From Judgment and Order of High Court Division Bench Allowing Amendment of Plaint in Appeal No. 745 of 2001 in Chamber Summons No. 1203 of 2000 in Suit No. 1578 of 1981
Outcome
Appeal allowed; order of Division Bench of High Court set aside.
Legal Topics
Specific Performance, Amendment of Pleadings, Necessary and Proper Parties, Limitation, Consent Decree, Impleadment of Parties
Property Law Contract Law Civil Procedure Specific Performance Amendment of Pleadings Necessary and Proper Parties Limitation Consent Decree +1 more

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Parties

Bharat Karsondas Thakkar

Appellant

M/s Kiran Construction Co. & Ors.

Respondents

Procedural Posture

Civil Appeal / Appeal From Judgment and Order of High Court Division Bench Allowing Amendment of Plaint in Appeal No. 745 of 2001 in Chamber Summons No. 1203 of 2000 in Suit No. 1578 of 1981

Legal Issues

  1. 1 Whether amendment of plaint changing suit for specific performance to one for declaration of title and setting aside consent decree is permissible
  2. 2 Whether a third party to an agreement can be impleaded as a necessary or proper party in a suit for specific performance
  3. 3 Whether the Division Bench of the High Court exercised its jurisdiction correctly by allowing such amendment

Ratio Decidendi

The Division Bench erred in allowing amendment of the plaint as it completely changed the nature and character of the original suit for specific performance to one for declaration of title and possession; the party sought to be impleaded is a third party and does not fall within the category of 'parties to the agreement.' The proper remedy for the respondent was to file a separate suit challenging the consent decree, not to amend the existing suit.

Court Disposition

Appeal allowed; order of Division Bench of High Court set aside.

Orders

  • Amendment of plaint allowed by High Court set aside.
  • Respondent No.1 at liberty to file a separate suit challenging the consent decree invoking the relevant provisions of Limitation Act.