1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMONS NO. 249 OF 2009 IN SUIT NO. 2500 OF 2007 Prajan Property Developer Pvt. Ltd. & Anr. .. Plaintiffs V/s Rashmikant P. Shah & ors. .. Defendants And Municipal Commissioner of Greater Mumbai & Ors. .. Respondents Mr. S.U. Kamdar, Senior Advocate i/b Thakore Jariwala & Associates for the plaintiffs. Mr. P.K. Samdani i/b Mr. S. Nagvadaria for defendantt nos.1 to 5. Ms. S.M. Dandekar for defendant nos.2 and 3. Mr. Hemant Mehta with Ms. Dipti Shah and Mr. P. Jani i/b Mehta & Co. for defendant no.6. CORAM : D.G. KARNIK, J. DATE : 29TH JUNE 2009 P.C. : 1. Heard the learned counsel for the appearing parties. 2 2. This chamber summons is taken out by the plaintiffs for amendment of the plaint proposing to add the respondent nos.1 to 3 to the chamber summons as defendant nos.7, 8 and 9 and for addition of para 21-A to 21-L, and also for addition of prayer clauses (a-i) (b-i) and (c-i) in the plaint. 3. The chamber summons is seriously opposed by the defendants as well as the proposed defendants (respondents) to the chamber summons. The opposition is principally on the following grounds: (i) The proposed amendment alters the nature of the suit. (ii) The proposed amendment cannot be allowed in the light of the principles laid down by the Supreme Court in Bharat Karsondas Thakkar v. Kiran Construction Co., AIR 2008 SC 2134, which has been followed by this Court in Yusuf Mohamed Lakdawala v. Sudhaka K. Bokade & Richie Rich Resorts Ltd., (Chamber Summons No. 561 of 2008 decided by me on 23rd July 2008). (iii) The chamber summons is mala fide. The plaintiffs initially added the defendant no.6 (transferee) as a party to the suit by an amendment carried out in September-October 2007. At that time itself, the plaintiffs could have applied for the amendment which is now sought but they did not make the averments so as to get that amendment through and now want to add further grounds which ordinarily would not have been allowed if both the 3 amendments were applied together. 4. In order to appreciate the grounds of opposition, it is necessary to state the basic facts. The plaintiffs filed the suit originally against the defendant nos.1 to 5 for specific performance of 5 agreements, all dated 1st April 1993 executed by the defendant nos.1 to 5 in their favour. The agreements were terminated by the plaintiffs by a notice dated 31st May 2007 and thereafter by a conveyance dated 1st June 2007, the plaintiffs conveyed the suit property in favour of the defendant no.6. In ignorance of the fact that the suit property was conveyed by the plaintiffs to the defendant no.6, the plaintiffs filed the suit for specific performance on 23rd October 2007 without initially joining the defendant no.6 as a party. However, after reading the affidavit in reply to the motion for injunction filed by them, the plaintiffs came to know that the defendant nos.1 to 5 had transferred the suit property to the defendant no.6 on 1st June 2007, that is prior to the filing of the suit. The plaintiffs, therefore, applied for amendment of the plaint to join the defendant no.6 as a party to the suit and also made a prayer that the defendant no.6 be also directed to specifically perform the suit agreements. Now the present application has been made for further amending the plaint. 5. The proposed amendment is exhaustive. It firstly seeks to challenge the sale deed dated 1st June 2007 executed by the defendant nos.1 to 5 in favour of the defendant no.6. Several grounds for challenge are sought to be 4 added in the body of the plaint. The plaintiffs also propose to add the Municipal Corporation of Greater Mumbai as a party to the suit and seek an injunction restraining it from sanctioning the building plans. By the proposed amendment, the plaintiffs seek to contend that the defendants had obtained permission from the Authorities under the Urban Land (Ceiling & Regulation) Act, 1976 by suppression of facts and misrepresentation. The plaintiffs also seek to add the Registrar of Assurances and Collector as parties to the suit. 7. Mr. Samdani, learned senior advocate appearing for the plaintiffs, submitted that the amendment, if allowed, would completely change the nature of the suit. The original suit was for specific performance. The defendant no.6 could be and was joined as a party to the suit in view of the provisions of section 19 of the Specific Relief Act and the decision of the Supreme Court in the case of Durga Prasad v. Deepchand, AIR 1954 SC 75 on the ground that a person who purchases the property after the agreement in favour of the plaintiff can be joined as a party to the suit so as to compel him to join in the conveyance which will ultimately be ordered to be executed by the original contracting parties-defendants. 8. In the case of Bharat Karsondas (supra), the Supreme Court distinguished its earlier decision in Durga Prasad’s case (supra). The Supreme Court held that where by an amendment further allegations are 5 sought to be made in the plaint quashing the sale deed which has been made in favour of the purchaser and the title of the subsequent purchaser is sought to be impeached, that would completely alter the character of the suit. In that case where apart from joining the subsequent purchaser as party to the suit the plaintiff therein had sought to add a prayer for setting aside the consent decree obtained by the subsequent purchase, it was held that by such an amendment the suit would be converted into a suit regarding title and that would amount to change in the nature of the suit. The amendment, therefore, was not allowed. 9. According to Mr. Samdani, the learned counsel for the plaintiff, the facts of the present case are similar to the facts in Bharat Karsondas’s case and the amendment, if allowed, would change the character of the suit. Prayer (a-i), which is sought to be added by the present amendment, reads thus: “(a-i) that this Hon’ble Court be pleased to set aside the illegal transaction dated 01.06.2007 between the Defendant No.1 to 5 on the one hand and the Defendant No.6 on the other hand.” The plaintiffs are thus trying to impeach the title of the defendant no.6 by praying to quash the sale deed dated 1st June 2007. The grounds of such impeachment have been set out in detail in the proposed amendment. As 6 such the amendment cannot be allowed. 10. In my view, the proposed amendment alters the character of the suit from a mere suit for specific performance to a suit for impeaching the title of the defendant no.6. The amendment therefore cannot be allowed. The chamber summons is therefore dismissed. 11. At this stage, learned counsel for the plaintiffs submits that the plaintiffs may be permitted to delete the prayer challenging the conveyance, but retain the portion regarding the defendant no.6 not being a bonafide purchaser for value without notice. Firstly, the contention relating to bonafide purchaser for value without notice has not been specifically averred. The portion suggesting fraudulent transaction between the defendant nos.1 to 5 and the defendant no.6 is inseparable from the other parts of the proposed amendment. Hence, the request is rejected. (D.G. KARNIK, J.)