IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:- 06.01.2010
Coram
The Honourable Mr. Justice M. CHOCKALINGAM
and
The Honourable Mr. Justice T. RAJA
O.S.A. Nos.439 and 440 of 2009
and
M.P. No.1 of 2009
B.K. Krishnamurthy ... Appellant in both appeals
..Vs..
1. S. Balasubramanian
2. Rajni Foundation Pvt. Ltd.,
rep. by its Managing Director,
2, Damodaran Street,
T. Nagar, Chennai 600 017.
3. Smt. S. Gomathi Ammal
4. M. Shanmuga Sundari
5. P. Muthu Rajeswari
6. Mrs. G. Vasuki
7. Mrs. R. Lakshmi
8. Dr. R. Umashankari ... Respondents
Original Side Appeals filed against the order dated 14.9.2009 passed in Application Nos.4229 and 1950 of 2008 in C.S. No.711 of 2007 on the file of this Court.
For Appellant : Mr. R. Thiagarajan
For Respondent : Mr. Kumarpal R. Chopra
for R1
Mr. T.V. Vineethkumar
for R2
JUDGMENT
(Judgment was delivered by M. CHOCKALINGAM, J.)
These two appeals are arisen out of order dated 14.9.2009 passed in Application Nos.4229 and 1950 of 2008. Application No.4229 of 2008 has been filed, seeking to amend the plaint and Application No.1950 of 2008 has been filed, seeking to implead the parties in a pending suit in C.S. No.711 of 2007, which has been filed for declaration and consequential permanent injunction and other reliefs.
2. The Court heard the learned counsel appearing for the appellant and also for respondents 1 and 2.
3. The plaintiff has come forward to file the suit seeking the above reliefs with the following averments:-
(i) The plaintiff entered into a Joint Venture agreement with one Sundaram Pillai on 22.7.99, as per which, the plaintiff and the said Sundaram Pillai were to contribute the sale proceeds of the allotment of the plot in equal moiety and share the profit also equally. Before fulfilling the obligations, the said Sundaram Pillai died on 3.1.2003 leaving behind his wife and children as legal heirs, who were entitled to succeed to the estate.
(ii) The plaintiff and the first defendant entered into a Memorandum of Understanding on 21.01.2003, whereby they are agreed to proceed with the earlier agreement. On 9.12.2003, a sale deed was executed in respect of the suit property by the Tamil Nadu Housing Board in favour of the first defendant. The other legal heirs of the deceased Sundaram Pillai gave consent for the execution and registration of sale deed in favour of the first defendant.
(iii) When the first defendant attempted to breach the Joint Venture agreement and also the Memorandum of Understanding, after serving legal notice on 14.5.2007, the plaintiff filed a suit. After making all the allegations, the suit was filed for a declaration in respect of the suit property and also for consequential injunction and other reliefs. Pending the suit, the plaintiff had also filed application Nos.968 and 969 of 2007, seeking for interim injunction restraining the respondents one from alienating the suit property and another from putting up any construction in the said property, pending disposal of the suit.
(iv) Both the applications were dismissed by the Trial Court by a common order dated 1.10.2007 where from two appeals are preferred viz. O.S.A. Nos.4 and 5 of 2008. A Division Bench of this Court, on enquiry of these appeals, dismissed both the appeals. Not satisfied with the same, the plaintiff took them to the Supreme Court by filing S.L.Ps. Nos.30761 and 30762 of 2008 and the same were dismissed. The suits are pending. Written statement is yet to be filed. Under such circumstances, two applications were filed, one for amendment of plaint and another for impleadment of respondents 3 to 8, who are L.Rs. of the deceased Sundaram Pillai.
(v) Insofar as the application to amend the plaint is concerned, it was resisted by the respondents on the ground that it would change the character of the suit, it was time barred and cause of action would be thoroughly changed, if it is allowed. Under such circumstances, the said application should be dismissed.
(vi) Insofar as the application to implead the parties are concerned, it was resisted on the ground that the proposed parties have already given their consent for the sale deed to be executed in their favour and accordingly, it has been done. They did not come forward to resist the suit. Since they got full knowledge, they were not necessary parties. Hence the application to implead the parties should also be dismissed.
(vii) Learned Trial Judge, after going through the materials and also hearing the submissions, held that it is not a fit case either for amendment or impleadment could be ordered and dismissed both the applications. Hence these appeals have been filed by the appellant.
4. Advancing arguments, learned counsel appearing for the appellant would submit that originally it was a suit for declaration and subsequently, an application has been filed for interim injunction to restrain the defendants from alienating the property or making any construction. It is true that both the applications were dismissed by the Court and appeals filed against those applications were also dismissed. Now the present applications have been filed not with the same relief.
5. Learned counsel added further that insofar as the application to implead the L.Rs. of the deceased Sundaram Pillai, who actually entered into the Joint Venture Agreement is concerned, it is true that they had given consent to the first defendant for getting execution of the sale deed. That did not mean that they were prevented from impleading as parties to the suit. They are parties to the Memorandum of Understanding. Hence, they are necessary parties to the suit. If they are not heard, their rights would be prejudiced.
6. Learned counsel would further submit that insofar as the amendment of the plaint is concerned, amendment could be ordered at any point of time at any stage of the proceedings. Even written statement was not filed. It is true, the suit was filed for declaration, but it has been mistakenly done. After understanding the mistake, to get the proper relief, amendment application has been filed seeking for specific performance. Learned Trial Judge has dismissed the application on the ground that it was time barred. In the instant case, it was not said to be time barred. Since the application was filed within three years from the date of publication made by the defendants, that suit has been filed. Apart from that, there is no change in character of the suit, cause of action has also not changed. Hence, there cannot be any impediment for allowing the application for amendment. Learned Trial Judge has taken the erroneous view.
7. In support of his contentions, learned counsel relied on the decision of a Full Bench of this Court reported in the case of HI. SHEET INDUSTRIES v. LITELON LIMITED (2006(5) CTC 609).
8. Learned counsel appearing for respondents 1 and 2 has made his honest attempt to dismiss the appeals filed by the appellant.
9. The Court heard the learned counsel appearing for both sides and looked into the materials available on record. After doing so, the Court is afraid, whether it can accept the contention put forth by the learned counsel appearing for the appellant. In the instant case, it is not in controversy that originally, one Sundaram Pillai and the plaintiff entered into a Joint Venture agreement and thereafter, pending the same, before performing the obligation, Sundaram Pillai died. Thereafter, the plaintiff entered into a Memorandum of Understanding as referred to by the first defendant.
10. At this juncture, it is pertinent to point out that all these L.Rs., who are not added as parties, have given their consent letters to the Tamil Nadu Housing Board for execution of sale deed in favour of the first defendant in respect of the property in question. When they themselves have given consent, there is no question of adding them as parties to the suit would arise. Hence the contention put forth by the learned counsel for the appellant that the L.Rs. of Sundaram Pillai, who entered into the Joint Venture Agreement, should be heard and they are necessary parties cannot be accepted.
11. A test to be applied by the Court of law before impleadment as to whether the presence of the party is essential for the issue before this Court for effective disposal. After applying the said test, the Court is of the considered opinion that the L.Rs. of Sundaram Pillai are not at all necessary to implead them as parties for two reasons. Firstly, they have given consent to the Tamil Nadu Housing Board in favour of the first respondent. Secondly, to decide the issue that would arise before the Trial Court, their presence is not necessary. Hence, the application for impleadment does not require any disturbance and the same is dismissed.
12. Insofar as the application for amendment is concerned, it was originally a suit for declaration in respect of the title of the property in favour of the plaintiff. It is true that written statement was not filed. It is also true that as could be seen from the provisions of Civil Procedure Code, amendment application can be filed at any stage of the proceedings. Learned counsel also cautioned the Court that in the matter of amendment of the pleadings, the Court should be liberal, but at the same time it would be within the frame work of law.
13. It would be apt and appropriate for this Court to refer the decision of the Full Bench of this Court in 2006(5) CTC 609 (cited supra) wherein it is held that while considering the application for amendment of the pleadings, the Court must consider the following things:-
“(a) Whether amendment should be allowed or not?
(b) When it does not affect the cause of action?
(c) It does not introduce the new cause of action.
(d) It would not cause serious prejudice to the opposite party and
(e) when such amendment is required in interest of justice.”
14. If the decision of the Full Bench even referred to by the appellant is applied, the Court is of the considered opinion that the Court has no other option than to dismiss the application for amendment. It is a case where originally the plaintiff came forward with a suit for declaration. Now pending the suit, he has come forward with the prayer of specific performance in respect of the same property. It is needless to say that the character of the suit would be changed and entire cause of action would also be changed. All would suffice to refuse the relief of amendment of plaint.
15. At this juncture, learned counsel appearing for the respondents brought to the notice of this Court the decision of the Apex Court reported in the case of VIJENDRA KUMAR GOEL v. KUSUM BHUWANIA ((1997) 11 SCC 457), which, in the considered opinion of the Court, would apply to the present circumstances of the case. If the character of the suit would be changed and also it would cause prejudice to the opposite party, the Court can refuse the amendment. Nothing canvassed in favour of the appellant to interfere even to make an admission of the appeals at this stage. Both the appeals have got to be dismissed and accordingly, they are dismissed. Consequently, the connected M.P. is also dismissed. No costs.
ssa
To
The Sub Assistant Registrar
(Original Side),
High Court,
Madras