Chamber Summons No.991 of 2002,IN Suit No.2967 of 2001

16th December, 2002

Petitioner Counsel: Mr. SASIDHARAN
Respondent Counsel: Mr. S.J. PUROHIT, b PRAKASH & Co., Mr. SNEHAL SHAH, M/s. Mehta & Co.

Cases Cited:
Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, (1995)3 S.C.C. 147 [Para 5,6,7,8,9]
Durga Prasad Vs. Deep Chand, AIR 1954 S.C. 75 [Para 7,8]
Kafiladdin Vs. Samirddin, A.I.R. 1931 Cal. 67 (C) [Para 7]
Potter Vs. Sanders, (1946)67 ER 1057(D) [Para 7]
R.C. Chandiok Vs. Chuni Lal Sabbarwal, 1970 (3) S.C.C. 140 [Para 8]
Dwarka Prasad Singh Vs. Harikant Prasad Singh, (1973)1 SCC 179 [Para 8]
Kanda Vs. Waghu, AIR 1950, PC 68 [Para 10]
Shikharchand Vs. D.J.P. Karini Sabha, AIR 1974 SC 1178 [Para 13]
Rai Charan Vs. Biswanath, AIR 1915 Cal. 103 [Para 13]
Velammal Vs. C. Gounder, AIR 1971 Madras 470 [Para 15]
Re.Sundaram Ayer, AIR 1963, Madras 217 [Para 16]

JUDGMENT

JUDGMENT :- The Plaintiff seeks to amend the plaint by impleading the Respondent and seeking a declaration that an agreement entered into between the Respondent and the Defendant dated 8th November, 2001 is illegal, unenforceable and not binding on him.

2. The suit was filed on 24th August, 2001, for specific performance in respect of an agreement dated 26th March, 2001 by which the Plaintiff agreed to purchase from the Defendant various plots of land. The Plaintiff filed Notice of Motion No.2069 of 2001 for the usual interlocutory reliefs in a suit for specific performance. The Defendant in his affidavit in reply disclosed the M.O.U. dated 8th August, 2001, by which they agreed to sell and transfer the suit property to the Respondent. The Plaintiff therefore filed the present Chamber Summons.

3. The Plaintiff contends that the M.O.U. dated 8th August, 2001 is not valid and binding on him, as it was made invalidly and during the subsistence of his agreement dated 26th March, 2001. The Plaintiff has further alleged that the M.O.U. dated 8th November, 2001 is a collusive and fabricated document and as such cannot confer any right in the suit property upon the Respondent.

4. Mr.Shah, the learned counsel appearing on behalf of the Respondent opposed the Chamber Summons on two grounds viz. that the Respondent is neither a necessary nor a proper party and that the amendment seeks to introduce a new cause of action.

5. In support of his first submission, Mr.Shah, relied upon on a judgment of the Supreme Court in Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, (1995)3 S.C.C. 147. In that case the original Plaintiff filed a suit for specific performance of a contract by which he agreed to purchase land from the Defendant. The Plaintiff having died, his son came on record as a legal representative. He sought leave to amend the plaint by impleading the Respondent on the basis that the Defendant had colluded with his sons and his wife and obtained a collusive decree under the U.P. Zamindari Abolition and Land Reforms Act. Under the decree, the Defendant and his said family members became co-sharers of the property. The Supreme Court in paragraphs 8 and 10 held as follows :-

"8. The question is whether the person who has got his interest in the property declared by an independent decree but not a party to the agreement of sale, is a necessary and proper party to effectually and completely adjudicate upon and settle all the questions involved in the suit. The question before the court in a suit for the specific performance is whether the vendor had executed the document and whether the conditions prescribed in the provisions of the Specific Relief Act have been complied with for granting the relief of specific performance.

10. ............................................

The petitioner therein was not claiming this legal status nor through the respondent. In Lala Durga Prasad. Vs. Lala Deep Chand, in a suit for specific performance the subsequent purchaser was held to be a necessary party. In this case the petitioner is merely seeking the specific performance of the agreement of sale. Section 15 of the Specific Relief Act, 1963, provides that except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by "any party thereto", and under Section 16, though discretionary, created personal bars to relief under given circumstances enumerated in clauses (a) to (c) therein. Therefore, based on the fact situation, the court would mould the relief. The respondent is neither a necessary nor a proper party to adjudicate upon the dispute arising in the suit so as to render an effective and complete adjudication of the dispute involved in this suit."

(emphasis suppled)

6. The judgment of the Supreme Court is clearly distinguishable from the case before me. It must be noticed immediately that in Anil Singh's case, while the Respondent was sought to be impleaded as a Defendant, nothing further was sought to be done in respect of the plaint. No further declarations or reliefs were claimed. The only relief which the Plaintiff continued to seek even after impleading the Respondent was a decree for specific performance of the agreement for sale.

In the application before me, the Plaintiff, in addition to impleading the Respondent has also sought a decree against the Defendant and the Respondent for a declaration that the subsequent MOU dated 8th August, 2001 is illegal and not binding on the Plaintiff.

7. Indeed Anil Singh's case itself indicates that it is permissible, in a suit for specific performance to add a subsequent purchaser and seek relief against him. This course has been adopted throughout. The only point at issue in a long line of judgments had been the nature of the decree that the Plaintiff ought to seek or be granted in the event of the defendant having entered into an agreement with another party in respect of the property which is the subject matter of the suit. This controversy was resolved by the Supreme Court in Durga Prasad and another Vs. Deep Chand and others, AIR 1954 S.C. 75. In paragraph 42, the Supreme Court held thus :-

"42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the Plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the Plaintiff and his vendor all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in - 'Kafiladdin Vs. Samirddin', A.I.R. 1931 Cal. 67 (C) and appears to be the English practice. See Fry on Specific Performance, 6th Edn. page 90, paragraph 207; also - Potter Vs. Sanders, (1846)67 ER 1057 (D). we direct accordingly".

8. Durga Prasad's case was referred to in Anil Singh's without any reservation. It has been followed by the Supreme Court in R.C. Chandiok & another Vs. Chuni Lal Sabbarwal & others in 1970 (3) S.C.C. 140 and in Dwarka Prasad Singh & Others Vs. Harikant Prasad Singh & Others (1973) 1 SCC 179.

9. It is thus clear that there is no question of the subsequent purchaser not being a necessary or a proper party in a suit for specific performance of an agreement. A Plaintiff may choose to adopt independent proceedings against a subsequent purchaser simultaneously or later. But that would not disentitle the Plaintiff from joining a subsequent purchaser in a suit for specific performance. Indeed it would be appropriate in most cases to bring a composite suit. It would avoid multiplicity of proceedings and unnecessary additional expenses.

It is clear therefore that the ratio in Anil Singh's case is applicable only in case where the Plaintiff merely seeks to add the subsequent purchaser as a Defendant without challenging the sale in his favour or seeking any other reliefs against him.

10. In support of his submission that the amendment ought not to be allowed as it seeks to introduce a new cause of action Mr. Shah relied upon a judgment of the Privy Council in Kanda Vs. Waghu. AIR 1950, PC 68. In paragraph 12 of the judgment the Privy Council held that it would not be open to a Court under Order 6 Rule 17 of the CPC to allow an amendment which altered the real matter in controversy between the parties.

11. The question therefore is whether the proposed amendment alters the real matter in controversy. It does not. In view of the Defendant having entered into an agreement subsequent to the Plaintiff's agreement, the Plaintiff has sought to obtain complete and effectual relief qua his agreement which continues to be the real matter in controversy. This he seeks to do by adding the Respondent as a Defendant and seeking certain reliefs qua the alleged subsequent agreement. If the Plaintiff succeeds it will be open to the Court not only to grant the reliefs specifically sought in the amendment but, either in exercise of its power under the omnibus prayer "(i) such other and further reliefs as the nature and circumstances as the case may require and (be) deemed, just and necessary ......." or even otherwise decree the suit in accordance with the judgment of the Supreme Court in Dugra Prasad's case. The amendment is a necessary consequence of the Defendant and the Respondent's conduct. There is no change in the fundamental character of the suit. The basic foundation on which the suit was filed remains the same. Nor does the amendment seek to substitute an existing cause of action or the subject matter of the suit.

12. As I have already held, it would have been open for the Plaintiff, in view of the long line of cases including the judgment of the Supreme Court in Durga Prasad's case to seek such reliefs in the plaint as filed. The Plaintiff was however not aware of the subsequent agreement dated 8th November, 2001 when the suit was filed on 24th August, 2001. It would be inequitable and improper then to deny the Plaintiff leave to amend. I have no hesitation in rejecting Mr.Shah's submission that the Plaintiff must in these circumstances first obtain a decree in this suit and thereafter file a suit against the Respondent on the basis thereof. Such a course would not only be contrary to law and result in multiplicity of proceedings but would make a mockery of the process of law.

13. The Supreme Court in Shikharchand Vs. D.J.P. Karini Sabha, AIR 1974 SC 1178, held :-

"11. ............................................

Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties (See Rai Charan Vs. Biswanath. AIR 1915 Cal. 103)".

14. In the present case there is greater reason to allow the amendment. The reliefs claimed in the plaint have not even become inappropriate. The amendment ought to be allowed to do complete justice, to shorten the litigation and to ensure that the decree which may be passed would be effective. If not, while the decree presently prayed for will not become inappropriate it certainly would be inadequate, ineffective and force the Plaintiff to file further proceedings as suggested by Mr. Shah. Thus the amendment ought to be allowed to do complete justice between the parties.

15. In Velammal and others Vs. C. Gounder and other, AIR 1971 Madras 470, the suit as originally filed was one for maintenance, the cause of action being the Plaintiff's husband's neglect to maintain her. The husband subsequently expired, as a result of which the Plaintiff's right had enlarged giving rise to a claim for partition and separate possession of a half share as and from the date of the death of her husband. A learned single Judge of Madras High Court held as under :-

"2. ........................................

Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of the institution of the suit. But where it is shown that the original relief claimed has by reason of the subsequent change of circumstances become inappropriate or that it is necessary to have a decision of the court on the altered circumstances in order to shorten the litigation or to do complete justice between the parties, it is incumbent upon the court to take note of the altered circumstances which happened subsequent to the filing of the suit, and mould its decree according to the circumstances at the time the decree is made".

16. A full Bench of Madras High Court In Re: Sundaram Ayer, AIR 1963 Madras 217 held as under :-

"4. Broadly and generally stated, the rule is that the rights of parties have to be determined and pronounced upon as on the date of commencement of the lis before the court. This is not however a stubborn or inflexible rule and it has to give way in instances where, unless the subsequent events are considered and taken into account, grave injustice would result or the decision of the court would become a mockery. A spouse applies for restitution of conjugal rights. During the pendency of the proceedings, the marriage is dissolved by a decree of competent court. The court dealing with the restitutional application is bound to have regard to the altered circumstances. A landlord sues to evict his tenant on the ground of forfeiture of lease. Before the suit is tried, the term of the lease expires. The court can take notice of this circumstances and grant relief. It would be pedantry to multiply instances. The discretion of the court, under its inherent powers, to adjust the rights of parties on the basis of events happening after the starting of the action, is well recognised and accepted as a rule of justice, equity and good conscience. In some cases, it is almost the duty of the court to advert to subsequent events brought to its notice lest it should fail to do substantial justice between the parties".

17. I am in respectful agreement with the judgments of the Madras High Court. I would add that the case to allow an amendment where the Defendants had not disclosed a subsequent agreement entered into by them before the filing of the suit is stronger.

18. The Chamber Summons is made absolute in terms of prayer (a). The Defendant and the Respondent shall pay to the Plaintiff the costs of this Chamber Summons fixed at Rs.1500/- each. At the request of Mr. Shah the order is stayed till 1st February, 2003. The amendment shall be carried out within six weeks thereafter.

Parties to act on an ordinary copy of this order duly authenticated by the Chamber Registrar/ C.S. of this Court.

Chamber Summons made absolute.