A.No.1950 of 2008 is filed by the applicant/ plaintiff seeking to implead the respondents 3 to 8 as defendants 3 to 8 in the suit.
2.A.No.4229 of 2008 is filed by the applicant/plaintiff to permit the plaintiff to amend the plaint with reference to the paragraph relating to court fee and the reliefs/prayer in the plaint.
3. The plaintiff filed the present suit against defendants 1 and 2 seeking for a declaration that the plaintiff was the absolute owner of the property described in the schedule and for a direction to the respondents to hand over vacant possession of the property set out in the schedule and for a permanent injunction restraining the defendants from alienating in any manner the property morefully described in the schedule and also for a permanent injunction restraining the defendants from putting any construction in the property.
4. The suit was admitted on 13.08.2007. Pending the suit, the present applications were taken out. According to the applicant/plaintiff, he entered into a joint venture agreement with S.Sundaram Pillai on 22.07.1999. As per the joint venture agreement, the plaintiff and the deceased S.Sundaram Pillai were to contribute the sale proceeds of the allotment of the plot in equal moiety and share the profit in the same manner. It was stated that the said S.Sundaram Pillai without fulfilling his obligations died on 03.01.2003, leaving the third respondent S.Gomathi Ammal, (his wife) and other respondents as legal heirs. The respondents 3 to 8 are entitled to succeed to the estate.
5. After the demise of S.Sundaram Pillai, the plaintiff and the first defendant entered into a Memorandum of Understanding in and by which, the rights and obligations of the original agreement dated 22.07.1999 were agreed to be performed by his son representing the estate. On 09.12.2003, the Tamil Nadu Housing Board executed a deed of sale in respect of the suit property in favour of the first defendant. The other legal heirs of the deceased S.Sundaram Pillai gave their consent for the execution and registration of sale deed in favour of the first defendant. It was claimed that the first defendant had attempted to commit breach of the terms of the Joint Venture Agreement dated 22.07.2009 and the Memorandum of Understanding dated 21.01.2003. Hence, a legal notice dated 14.05.2007 was issued insisting the performance of the joint development agreement. As there was a threat of wrongful alienation, publications were made on 16.05.2007 and 20.05.2007 in "Daily Thanthi' and 'The Hindu'. A telegraphic notice was also given on 28.07.2007. Since there was a threat of wrongful alienation and development of the property through the second defendant, the suit was filed for the prayer set out above.
6. Pending the suit, the applications O.A.Nos.968 and 969 of 2007 were filed by the plaintiff, seeking for an order of interim injunction against alienation and from putting up construction in the suit property. After hearing both sides, this Court dismissed both the applications by a common order dated 01.10.2007.
7. As against the said order, the plaintiff moved the Division Bench with O.S.A.Nos.4 and 5 of 2008. The Division Bench dismissed both the OSAs with a final order dated 13.11.2008 and in Paragraphs 20 and 21, it had observed as follows:
"20. Relying on the said clause, the learned single judge has rightly observed that the said clause reflects a consensus between the parties that the title of the property after obtaining the sale deed from the Tamil Nadu Housing Board would vest with the allottee S.Sundaram Pillai and that if any one of the parties wanted a change in the ownership, the same would be decided subsequently by the parties to the said joint venture agreement. The learned single judge has rightly observed that the title in respect of the suit property was yet to be conferred on the appellant and that the said state of affairs continued till the filing of the suit. Therefore, the findings of the learned single judge that the appellant has not made out a prima facie case for declaration of title and for recovery of possession and that the appellant shall not be entitled to the relief of interim injunction prayed for in either of the application Nos.968 of 2007 and 969 of 2007 do not warrant any interference.
21. We are also of the opinion that the appellant, instead of seeking specific enforcement of contract, has wrongly chosen to file the suit for declaration of supposed title in respect of the suit property and that the appellant has not made out a prima facie case by establishing that he has fair chances of success in the suit. We do concur with the reasons assigned by the learned single judge for coming to the conclusion that the appellant was not entitled to the relief of interim injunction as prayed for in Application Nos.968 of 2007 and 969 of 2007 both in C.S.No.711 of 2007."
8. Thereafter, the plaintiff moved the Supreme Court with Special Leave to Appeal (Civil) Nos.30761 and 30762 of 2008. The Supreme Court dismissed both the Special Leave petitions by an order dated 07.01.2009. The Supreme Court observed that it was needless to state that any observations made in the impugned orders shall not prejudice the case of any of the parties during the trial.
9. In respect of A.No.1950 of 2008, it was stated that after the demise of late S.Sundaram Pillai on 03.01.2003, all his legal heirs are bound by the terms of the original agreement dated 22.07.1999 and that the first defendant, being the only son of S.Sundaram Pillai entered into an agreement dated 21.01.2003 with the plaintiff on his behalf as well as on behalf of the entire estate. Since all the legal representatives have given their consent for execution of the sale deed in favour of the first defendant, the Tamil Nadu Housing Board had executed a sale deed in favour of the first defendant. The first respondent holding the property for himself and as trustee for his mother and the daughters of Late S.Sundaram Pillai.
10. It was stated that the Joint Venture Agreement dated 22.07.2009 is merged with the Memorandum of Understanding dated 22.01.2003. Therefore, it became necessary to implead respondents 3 to 8 and also to make proper amendments. The amendments sought for is for performance of the contract in lieu of the partition originally sought for and that the character of the suit will not change and it was filed to avoid the multiplicity of proceedings. It was submitted that in the real controversy test, amendments are necessary and impleading has to be done as per Order I Rule 10(2) of CPC, since the legal heirs of the deceased Sundaram Pillai have a direct and substantial interest in the assets of Sundaram Pillai and they are proper and necessary parties. It was also stated that since the original defendants have not filed any written statement, no prejudice will be caused to them. But it must be noted that the second defendant had already filed his written statement.
11. A common counter affidavit of the first respondent dated 28.08.2008 was filed. It was stated that similar miscellaneous petitions were filed before the Division Bench for impleading respondents 3 to 8 and the first respondent was not aware of the fate of those applications. It was further stated that the proposed respondents 3 to 8 have given No Objection Certificate as well as affidavits for transfer of suit property in his favour. Since they have given no objection for transfer of the sale deed in his favour, they are not necessary parties to the suit. Any relief against the suit property will not prejudice the rights of respondents 3 to 8. The third respondent had also engaged a counsel and given her affidavit to the effect that she did not want to be a party to the suit. The application for impleadment was filed to create a rift in the family and with a motive to extort money from the first respondent.
12. The limitation for filing a suit for specific performance is three years and the present relief is time barred. The counsel who appeared for the proposed respondents 4 to 8 was appearing for the plaintiff in the OSA filed against the application in the present suit. There is a conflict of interest and it will show clear collusion between the parties. The relief prayed for in the suit is for a declaration of half share in the property, in which the proposed parties were neither proper and necessary parties. There is no relief claimed against the proposed respondents. The prayer for amending the suit claim is time barred. It must also be noted that copies of No Objection Certificates have been filed in the typed set of papers filed by the first respondent.
13. The Managing Director of the second respondent company had filed a counter affidavit dated 17.08.2008. It was stated that he had paid a sum of Rs.2,40,00,000/- to the first respondent, who is the absolute owner of the property. They had also spent huge monies for developing the property. Excepting the first respondent, no other person has any right in title or possession over the property. The proposed respondents have no subsisting right in the suit property and therefore, the applicant cannot plead the case of the legal heirs of deceased Sundaram Pillai. The proposed respondents are aware of their right over the suit property and they have not filed any application to get themselves impleaded in the suit. They have also given a No Objection Certificate to the Tamil Nadu Housing Board to give a sale deed in favour of the first respondent. The first respondent also got the sale deed in his favour. In fact the applicant's case in the plaint was that the plot was allotted in the name of the first defendant's father Sundaram Pillai by the Housing Board by an allotment letter dated 06.09.1996 for the sale consideration of Rs.35,60,000/- and that he had entered into a joint venture agreement with the plaintiff and both of them paid Rs.13,73,942/- each as part of the sale consideration and therefore he is entitled to have a portion over the suit property.
14. Mr.R.Thiagarajan, learned counsel for the applicant/plaintiff cited very many decisions of various High Courts and the Supreme Court in support of his contentions. It is unnecessary to refer to all the decisions of the various High Courts, since all of them have followed only the decisions of the Supreme Court. The learned counsel must also realise that there is no necessity to cite numerous authorities for the very same proposition. Therefore, the cited decisions of the Supreme Court and of this Court are dealt with here.
15. In respect of the arguments in support of amendment of pleadings under Order 6 Rule 17 CPC, following decisions were cited:
17. There is no quarrel with the propositions laid down in those decisions. But with reference to the impleadment of parties, the proposed parties themselves never wanted to have them impleaded in the suit. The first defendant is willing to defend the suit at his own risk. Therefore, it is unnecessary to order the impleadment. The decisions cited in this regard has got no application to the facts of this case.
18. With reference to the amendment of pleadings, though the Courts have taken the view that one should be liberal in allowing amendments before trial and also that in order to avoid multiplicity of proceedings, amendments can be allowed, but the courts were cautioned in allowing an amendment so that scope of a suit cannot be expanded or the plaintiff to put forth a new case which is time barred.
19. Mr.Arvindh Pandian, learned counsel for the first respondent stated that amendment of the pleadings cannot be permitted since the suit is only for a declaration and such a suit cannot be converted into a suit for specific performance since the claim for specific performance was time barred. For this purpose, he relied upon the judgement of the Supreme Court in Vijendra Kumar Goel v. Kusum Bhuwania reported in (1997) 11 SCC 457. He relied upon the following passages found in Paragraphs 3 and 4, which is as follows:
"3. ... In support of his submission Shri Dhavan has placed reliance on the decision of this Court in Muni Lal v. Oriental Fire & General Insurance Co. Ltd. wherein this Court has upheld the order disallowing amendment of the plaint and has laid down that under Order 6 Rule 17 CPC an amendment cannot be allowed in cases after the suit was barred by limitation during the pendency of the proceedings.
4. In the instant case the High Court appears to have proceeded on the basis that in the plaint the plaintiff-respondent has made out a case for specific performance and nothing new had been sought for by way of amendment. We have perused the plaint. We are unable to agree with the said view of the High Court. It is no doubt true that in the plaint the plaintiff-respondent has made a reference to the agreement and his having requested the appellant to execute the sale deed. But there is nothing in the plaint to show that the plaintiff-respondent was seeking specific performance of the contract. The suit, as framed, is a suit for declaration and injunction only. It was sought to be converted into a suit for specific performance by the plaintiff-respondent by way of amendment in the plaint in 1993 when the claim for specific performance had become barred by limitation."
20. In the present case, the contention raised by the respondent/defendant was that the claim will amount to virtually putting up a new case and if allowed it is time barred. In this context, it is necessary to refer to the following decisions of the Supreme Court which has a bearing on this case:-
i)M/s.Ganesh Trading Co. v. Moji Ram ((1978) 2 SCC 91).(The amendment allowed as it did not alter the cause of action. Para 16)
ii)Gojabai w/o Bajirao Kolokhe v. Gangabai Ramchandra Pawar and another.
((1980) 2 SCC 329.(Amendment not allowed as a new and inconsistent case was put up to get over limitation. Para 4)
iii)Patasibai and Others v. Ratanlal ((1990) 2 SCC 42 (Belated amendment not allowed. Paras 11 to 14)
iv)K.Raheja Constructions Ltd. And another v.Alliance Ministries and Others (1995 Supp (3) SCC 17).(Time barred amendment not allowed. Paras 3 and 4)
v)Muni Lal v. Oriental Fire and General Insurance Co. Ltd and another ((1996) 1 SCC 90) (Amendment belated cannot be allowed. Paras 5 & 6)
vi)Vijendra Kumar Goel v. Kusum Bhuwania ((1997) 11 SCC 457) (Time barred amendment not allowed. Para 4) In the above decisions, the courts have held that one must watch out in allowing amendment to pleadings that the time barred claims cannot be sneak in.
21. It must be seen that the proposed respondents 3 to 8 did not want to come on record inspite of their being aware of the pendency of the proceedings. The first respondent had taken the risk of contesting the suit on his own. He has also produced the No Objection Certificate issued by the proposed respondents. In normal circumstances, a plaintiff has the right to add parties to the suit being the dominus litis and the Court under Order I Rule 10(2) CPC has power to strike or add parties. But this Court is of the opinion that since the plaintiff is only relying upon the Memorandum of Understanding between the parties, it is not necessary that the respondents 3 to 8 should be made as parties to the suit. Further, the present amendment if allowed, besides putting up a new case and the claim is clearly hopelessly barred by limitation.
22. In the light of the legal precedents cited above and considering the factual matrix of the case, both the applications for impleadment and amendment of the plaint cannot be allowed. Hence, both the applications will stand dismissed. No costs.
svki