Debangsu Basak, J.@mdashOne Sakhir Chand Dhawan filed the instant suit for specific performance of the agreement for sale entered into by him with the Defendant No. 1 in respect of two apartments in premises No. 7/1, Russel Street, Kolkata-700071. Apparently Sakhir Chand Dhawan settled with the Defendant No. 1. Seven persons claiming to be agreement holders in respect of different flats at the said premises applied for transposition and/or addition of party to the suit in the category of plaintiffs, as the case of the individual party required such party to do. Such application was allowed. Seven additional persons became plaintiffs in the suit filed by Sakhir Chand Dhawan.
2. The transposed plaintiffs sought specific performance of the respective agreements against the Defendant Nos. 1 and 2. They claimed that the Defendant Nos. 1 and 2 did not make over possession of the respective flats to which they are entitled to.
3. The Defendant Nos. 1 and 2 opposed the prayers. They contended that, the scope of the suit filed by Sakhir Chand Dhawan did not permit any other agreement holder to have specific performance of their agreement. They also contended that, the claims of the transposed plaintiffs were barred by the laws of limitation.
4. When Sakhir Chand Dhawan filed the suit the building was incomplete. In fact, under the agreement between Sakhir Chand Dhawan and the Defendant No. 1 the building at the premises was required to be completed prior to June 30, 1981 and possession of his flats made over to him not later than June 30, 1981. When the suit was instituted by Sakhir Chand Dhawan, the building was not complete. From time to time diverse orders were passed in the suit. Many of such interim orders were appealed against. From some of the orders passed by the Appeal Court special leave petitions were also filed. During the pendency of the suit the building at the said premises was completed pursuant to the orders passed by the Court.
5. An application was taken out for replacing the personnel of the Receiver appointed in the suit on the ground that, the learned Receiver had expressed her view not to continue as a Receiver. The application and the suit were taken up for hearing together. At the time when such application was moved, I posted the application to be taken up along with the final hearing of the suit. As such the application and the suit were taken up for final hearing.
6. The suit came up of hearing at the final stage. Three persons representing three plaintiffs adduced evidence on behalf of the three plaintiffs in the suit. Various documents were marked as exhibits.
7. Mr. Jishnu Saha, learned Senior Advocate for the plaintiffs contended that, his clients were ready and willing to discharge their obligations under the respective agreements. They were entitled to specific performance of their respective agreements. Although leave under Order I Rule 8 of the Code of Civil Procedure, 1908 was not applied for and obtained, the suit for all practical purposes was considered to be a representative suit. The Court passed diverse orders on the basis of consideration that, the suit was a representative suit. The parties including the Defendant Nos. 1 and 2 took benefit of the orders passed from time to time by this Court. In fact, he pointed out that, the Defendant Nos. 1 and 2 applied for extension of time for completion of construction under the sanctioned plan issued by the Kolkata Municipal Corporation. Such permission was granted by this Court by the Order dated June 13, 1989. The Defendant Nos. 1 and 2 took benefit of such order. The Defendant Nos. 1 and 2 had subsequently constructed the building on the basis the extension of time granted by the Court including the Order dated June 13, 1989. The Defendant Nos. 1 and 2 themselves considered the instant suit to be a suit for administration of the entire building lying and situate at the premises No. 7/1, Russel Street, Kolkata-700071. Having taken such advantage, the Defendant Nos. 1 and 2 were not entitled to contend that, the suit and the reliefs prayed for therein were limited to two flats of the original plaintiff. Mr. Saha referred to various orders passed by the Court from time to time to emphasize the submission that, the parties proceeded on the basis that, the suit was for administration of the entire premises and that, the suit was in a representative character.
8. Mr. Saha contended that, the suit assumed a representative character and that, the parties proceeded on the basis that, the suit was a suit for administration of the entire building. The Defendant Nos. 1 and 2 obtained advantage of orders passed in the present suit as also its pendency. The Defendant Nos. 1 and 2 treated the present suit to be a suit in a representative character and a suit for administration of the entire building. The Defendant Nos. 1 and 2, therefore, cannot contend that, the suit was not for administration of the entire building and that, the suit did not assume a representative character. Once the suit assumed a representative character and was a suit for administration of the entire building the question of limitation and the question of abatement raised by the Defendant Nos. 1 and 2 would not be available to such defendants.
9. He next dealt with the contentions raised on behalf of the Defendant Nos. 1 and 2. He referred to the defences taken by such defendants. The first defence of the defendants, according to him, was that, the suit had abated with the death of the some of the defendants.
10. He submitted that, such defence was not available since the suit assumed a representative character and it did not abate with a death of a party.
11. Maintainability of the suit was questioned by the Defendant No. 1 on two counts, namely, limitation and secondly the transposed plaintiffs were not entitled to the reliefs of specific performance of agreements different to that of the original plaintiff Sakhir Chand Dhawan as the transposed plaintiffs were not allowed to and could not have in law altered the pleadings of the original plaint.
12. On the question of limitation the plaintiffs submitted that, the Defendant Nos. 1 and 2 at no stage of the suit denied the existence of the right of the respective plaintiffs to receive their respective flats in terms of the respective agreements for sale. In other words, the agreement for sale which the respective plaintiffs were seeking decree for specific performance was never in dispute. The rights of the plaintiffs to receive their flats pursuant to the respective agreements were not disputed at any stage by any of the defendants. The only dispute was with regard to the rate at which the Defendant Nos. 1 and 2 were agreeable to make over the flats to the respective plaintiffs.
13. Mr. Saha relied on Article 54 of the Limitation Act, 1963. He also referred to Section 55 of the Indian Contract Act, 1872 which provided that, a time fixed for performance of an agreement could be extended by the parties. He then referred to the facts of the case and submitted that, the building itself was not complete within the time stipulated. As such the time for performance, by implication, was extended. He pointed out that, the suit was of 1982. The building obviously was incomplete in 1982. Even after seven years of the institution of the suit, the parties had to approach Court to seek extension of time for completion of the building. He placed emphasis on the Order dated June 13, 1989 passed by the Court on the application of the Defendant Nos. 1 and 2 by which, time for completion of the construction of the building by 38 months was extended. He referred to Order dated April 16, 1990 where the Defendant Nos. 1 and 2 were directed to construct the remaining apartments within 29 months. All allottees of apartments whose apartments were yet to be constructed were directed to pay at the rate of Rs. 550/- per square feet or take refund.
14. He also emphasized the fact that, neither prior to the suit nor after the filing of the suit did the Defendant Nos. 1 and 2 deny the right of the transposed plaintiffs to receive the flats allotted to them. On the contrary till April 16, 1990 the Defendant Nos. 1 and 2 expressly acknowledged such right.
15. Ms. Nilakshi Dutta, learned Advocate for the Defendant No. 1 submitted that, the suit was not maintainable. She submitted that, the order of amendment of the plaint dated April 12, 1996 allowed such parties to be transposed in the category of the plaintiffs subject to the laws of limitation. Such order also allowed filing of written statement by the transposed plaintiffs which was directed to be treated as the plaint in the suit again subject to the laws of limitation. She contended that, amendment of the plaint filed by Sakhir Chand Dhawan was made at the behest of the transposed plaintiffs after a period of eleven years. Therefore, according to her, the claim of the transposed plaintiffs was hopelessly barred by the laws of limitation.
16. She next contended that, in the event the amendments did not fail on the ground of limitation then the prayer of Sakhir Chand Dhawan made in the plaint remained. Admittedly, Sakhir Chand Dhawan had received full satisfaction of his claim. The transposed plaintiffs did not adopt the case of the original plaintiff. Adopting the case of the original plaintiff did not help the transposed plaintiffs since the claim of the original plaintiff was limited to his two flats only. Therefore, according to her, the transposed plaintiffs cannot obtain any relief in the suit.
17. She referred to the orders of the Supreme Court dated January 8, 1993 and March 27, 2000, which stated that, the transposed plaintiffs were to seek their relief before the Trial Court if they were entitled to any, in law. The transposed plaintiffs according to her, were seeking to obtain specific performance of their seven independent agreements through one suit after all their claims becoming barred by limitation. The transposed plaintiffs were trying to obtain such relief in a plaint filed by somebody else. The transposed plaintiffs were seeking to alter the cause of action of the original plaintiff and to substitute their cause of action in the suit. Such alteration was not permitted in law.
18. According to her, the reliefs sought for by the transposed plaintiffs destroyed the nature and character of the original plaint. The amendments were not in accordance with law. She cited
19.
20. The following issues were, therefore, raised by the parties during the course of their submissions:-
1. Are the transposed plaintiffs entitled to continue with the suit filed by Sakhir Chand Dhawan?
2. Are the claims of the transposed plaintiffs barred by the laws of limitation?
3. Did the suit abate due to death of parties to the suit on their failure to substitute the deceased party?
4. Were and are the transposed plaintiffs ready and willing to perform the respective contracts?
5. Are the transposed plaintiffs entitled to any relief in the suit?
21. The suit was originally filed by Sakhir Chand Dhawan. In his suit Sakhir Chand Dhawan claimed specific performance of two agreements that he had entered into for two flats at premises No. 7/1, Russel Street, Kolkata- 700071 with the Defendant Nos. 1 and 2. He prayed for an administration of such building in respect of his two flats. Some of the transposed plaintiffs were party defendants to the suit.
22. Sakhir Chand Dhawan settled his claim with the Defendant Nos. 1 and 2 and did not seek to pursue the suit. The Defendants, therefore, caused themselves transposed in the category of the plaintiffs. Such transposition was done by virtue of an Order dated April 12, 1996.
23. The Order dated April 12, 1996 traced the entire history of the suit up to the date of the order. The order found that by an Order dated December 22, 1982, 19 persons were directed to be added as party defendants to the suit. The suit continued. Diverse orders were passed in the suit.
24. In 1987 the present Plaintiff Nos. 1 and 2 applied to Court for being transposed as the plaintiffs. It was claimed by the present Plaintiff Nos. 1 and 2 that in or about 1987 they came to learn that the original plaintiff Sakhir Chand Dhawan had arrived at an out of Court settlement with the Defendant Nos. 1 and 2 in respect of his two apartments.
25. By an Order dated September 16, 1987 the Court allowed the application for transposition. The present Plaintiff Nos. 1 and 2, therefore, stood transposed to their present position. Kolkata Municipal Corporation was also added as a party defendant by the same order. The suit, thereafter, proceeded with the present Plaintiff Nos. 1 and 2 as the plaintiffs. Interestingly this order of transposition dated September 16, 1987 was not challenged by any of the parties to the suit.
26. Five original defendants, thereafter, applied for being transposed into the category of the plaintiff. Such transposition was allowed by the Order dated April 12, 1996. The then existing Defendant Nos. 8, 9, 21, 23 and 27 who had applied for being transposed in the category of the plaintiffs were allowed to do so. Such parties were directed to be treated as Plaintiff Nos. 3 to 7. The then existing Plaintiff Nos. 1 and 2 were directed to continue as such plaintiffs. The name of Sakhir Chand Dhawan, if already not struck out from the category of the plaintiff, was directed to be struck out from the category of the plaintiff and transposed to the category of the defendant. The written statement and/or counter-claim of the transposed plaintiffs were directed to be treated as plaint subject to the question of limitation. The prayers made in the original plaint filed by Sakhir Chand Dhawan were directed to remain as the prayers in the suit subject of course to the rights of the transposed plaintiffs who were originally defendants and/or added defendants to file their respective written statements and to make their counter-claims in accordance with law. The counter-claims were to be subject to the laws of limitation. The written statement and/or counter-claims of the transposed plaintiffs were directed to be treated as pleadings subject to the laws of limitation and having regard to the scope of the suit as originally filed.
27. No prayer for leave under Order I Rule 8 of the Code of Civil Procedure, 1908 was made in the suit for treating the suit as a representative one. However, orders passed in the suit from time to time and the conduct of the parties to the suit amply demonstrated the fact that, the parties to the suit considered the suit to be a suit for administration of the entire building and that, the suit was in respect of each and every allottee of the building. Numerous persons having the same interest in the suit were brought on record. The first order to consider was the Order dated March 5, 1982. Such order was passed on the basis of the application of the original plaintiff. The order directed the Defendant Nos. 1 and 2 to give the names of the allottees other than the parties to the suits at that point of time to the Advocate on Record of the original plaintiff. The original plaintiff was directed to serve notice of the application on such allottees. A member of the Bar was appointed as an administrator to ascertain ways and means for expediting the construction.
28. A subsequent order was passed on March 12, 1982 by which the Defendant Nos. 1 and 2 were restrained from dealing with any of the flats in the building until further orders. The Special Officer was directed to put up a notice on the building stating that further transactions of the flats in the building were stayed by the order of Court. In compliance with the order of the Court directing the Defendant Nos. 1 and 2 to disclose the names and addresses of the respective allottees, by an affidavit, names of the respective allottees was disclosed to Court.
29. By the Order dated July 14, 1982 a Special Officer appointed in the suit was directed to give notice to all the parties and make a report as to the present stage of construction of the building. By the Order dated December 22, 1982 the Court found that, a multistoried building was agreed to be constructed at the premises in dispute. The allottees of the flats who were not impleaded in the suit were directed to be added as parties to the suit as their presence at the trial was found necessary to enable the Court to dispose of the suit finally and settle all question involved. Consequently, the Court directed addition of 19 other persons as defendants to the suit by the Order dated December 22, 1982. The Defendant Nos. 1 and 2 were given liberty to negotiate with the parties other than the original allottees.
30. The next order of importance in the context was of April 16, 1990. By such order the Court tried to settle a rate and a mechanism by which the disputes in the suit between the promoters and the respective allottees could be settled. The same order permitted the Defendant Nos. 1 and 2 as promoters to construct the remaining apartments within 29 months from the date of the order taking a rate of Rs. 550/- per square feet. The allottees who did not want to proceed further with the transaction were given liberty to exit on the formula specified in the order.
31. The Order dated April 16, 1990 was carried in appeal. The Appeal Court by its judgment and order dated April 26, 1991 was of the view that, it was not open to the learned Judge to substitute a different rate for the transfer of the flats in question than the agreed rate. The order of the Division Bench was challenged before the Supreme Court. The Supreme Court by a judgment and order dated August 7, 1992 appointed a retired Judge of this Hon''ble Court as a Receiver with three-fold task enumerated in such order.
32. Order I Rule 8 of the Code of Civil Procedure, 1908 required permission of the Court to institute or defend a suit under such provision and notice of such suit to all persons interested either by personal service, or by public advertisement where personal service was not reasonably practicable.
33. In the instant case, permission to institute the suit under Order I Rule 8 was not applied for. The Court, however, directed notice to allottees to be given and also directed their addition as defendants. The Court also directed addition of Kolkata Municipal Corporation as a defendant. The orders showed that the Court was treating the suit as a suit for administration of the building and a suit filed in a representative character. Permission under Order I Rule 8 of the Code of Civil Procedure, 1908 need not be express. The orders of the Court in the suit and the conduct of the parties led one to come to the irresistible inference that the suit was in a representative character for the benefit of all allottees of the flats of the building concerned and that permission to institute and continue with such suit was present.
34. The prayers in the original plaint were limited to the two agreements that Sakhir Chand Dhawan entered into the Defendant Nos. 1 and 2. The prayer for administration made in the original plaint was also in respect of the said two flats. The Defendant Nos. 1 and 2 sought to take advantage of the pleadings in the original plaint and contended that, the transposed plaintiffs could not amend the original plaint. In fact, such amendment was not allowed. The relief prayed for in the original plaint had worked itself out and nothing remained for the transposed plaintiffs to have in the instant suit. Prayer (e) of the original plaint contemplated administration of the building so far as the two flats of the original plaintiff were concerned.
35. The original plaintiff could not have had administration of two flats belonging to him in respect of the building, which was incomplete at the time of filing of the plaint. For the original plaintiff to have an administrator in respect of the two flats that he was concerned with, the Court necessarily was required to appoint an administrator for the purpose of completing the construction of the entire building. In law till such time the entire building was completed and a certificate of completion in accordance with the relevant provisions of the Municipal Act was issued, the building was not complete for the purpose of the original plaintiff to possess and occupy his two respective flats. In such context prayer (e) in the original plaintiff could not be read to limit the suit to be a suit for administration of two flats of the original plaintiff only.
36. Furthermore, the orders enumerated above treated the suit as a suit for administration of the entire building. Remedies or measures for the purpose of having the building completed so that respective flats could be allotted to the respective allottees of the flat and/or the transferees of the allottees could be made, was put in place for the parties to the suit. All persons affected by the suit and having interest the flats at the premises were added as parties to the suit. All allottees to the building were directed to be added as parties to the suit. The Kolkata Municipal Corporation was directed to be a party defendant. These orders remained unchallenged and at least were not reversed. The parties to the suit acted on such basis. More importantly, the Defendant Nos. 1 and 2 acted on such basis. The Defendant Nos. 1 and 2 took advantage of the orders extending the time to construct the building. All of the orders were passed in presence of the Defendant Nos. 1 and 2. The Defendant Nos. 1 and 2 took advantage of the treatment of the suit as one of a representative character and for the administration of the entire building. Therefore, it was not for the Defendant Nos. 1 and 2 to raise a plea at the final hearing of the suit, when the parties to the suit acting on the basis of the orders passed on a particular platform, alter their stand to contend that, the suit was not for the administration of the entire building.
37. Orders from time to time added all persons who were concerned and/or connected with the building such as the allottees and the Kolkata Municipal Authorities. Therefore, all persons who would conceivably be affected by the relief that may be granted in the instant suit were directed to be added as parties to the suit. Subsequent to their addition orders were passed from time to time modulating the construction of the building, and if possible, the specific performance of the respective agreements for sale. The Court brought within the scope and ambit of the suit all parties that may be affected by the completion of the building that was incomplete at the time of institution of the suit. The Court was attempting to grant complete relief to all state holders in the building in the suit. By such process, the Court was preventing proliferation of litigations in respect of the same property. All the parties likely to be affected were made parties to the suit. The transposed plaintiffs were brought into the suit, initially, as defendants and then allowed to be transposed. The reliefs sought by the transposed plaintiffs were specific performance of the respective agreements after completion of the building. The original plaintiff sought the same relief albeit, specific performance of agreements different to that the transposed plaintiffs. The building and its completion were the same.
38. The Defendant Nos. 1 and 2 denied the eligibility of the plaintiffs to obtain any relief in the suit of Sakhir Chand Dhawan on the ground that prayer (a) of the plaint limited itself to specific performance of two agreements. The present plaintiffs were not entitled to and in fact, were not permitted to amend the reliefs sought for by the original plaintiff. That being so, no relief can be granted to the present plaintiffs. That defence of the Defendant Nos. 1 and 2 was not available to them, in view of the Order dated April 16, 1990. The order recorded that, the Defendant Nos. 1 and 2 were agreeable to specifically perform the respective agreement for sale. The rate at which such specific performance will take place was, however, in dispute. The order settled a rate. On appeal it was held that, the Court could not have settled such rate. In the Appeal Court also the Defendant Nos. 1 and 2 did not say that, they would not act in terms of the respective agreement for sale as they were barred by limitation.
39. The suit was for the administration of the entire building. In such circumstances the plaintiffs were entitled to have specific performance of their respective agreements made within the scope of the suit. Prayer (a) of the original plaint was not a bar to the present plaintiffs seeking their right for specific performance in such suit. The transposition of the present plaintiffs in the category of the plaintiffs and the relief that they were seeking did not destroy the original suit or the relief prayed for in the agreement. The transposed plaintiffs were entitled to continue with the suit filed by Sakhir Chand Dhawan and were entitled to the reliefs as sought for by them within the scope of ambit of the suit.
40. The point of limitation of the Defendant Nos. 1 and 2 would, therefore, be negated on the same reasoning as above. The transposed plaintiffs were parties to the suit on and from December 22, 1982 when notice of the suit was issued to all allottees including the transposed plaintiffs. The transposed plaintiffs were, therefore, parties to suit well within the period of limitation. The building was not complete till then. By the Order dated March 5, 1982 when the Defendant Nos. 1 and 2 were directed to give names of the allottees of the other flats and the plaintiffs were directed to serve notice on such allottees. At that point of time none of the claims of the plaintiffs were barred by the laws of limitation. The subsequent Order dated April 16, 1990 extended the period of limitation for the plaintiffs. In such order the concession of the Defendant Nos. 1 and 2 that, they were ready and willing to make over the respective flats to the respective allottees was recorded subject, however, to the rate at which the Defendant Nos. 1 and 2 were agreeable to specifically perform the agreement for sale being kept open. The suit, therefore, was not barred by the laws of limitation.
41. Since, I have held the suit to be one of a representative character, the question of abatement does not arise. Moreover, the transposed plaintiffs were seeking reliefs against the Defendant Nos. 1 and 2 only. The death of the other defendants did not affect their right of the plaintiffs to obtain the reliefs sought by them.
42. The Defendant Nos. 1 and 2 questioned the readiness and willingness of the transposed plaintiffs. The act of the transposed plaintiffs to have themselves categorized as the plaintiffs in a suit filed by Sakhir Chand Dhawan amply demonstrated the readiness and willingness of the transposed plaintiffs to have specific performance of their respective agreements. The transposed plaintiffs took such steps as they were entitled to in law to enforce their rights. Three of the transposed plaintiffs led evidence at trial and expressed desire to have specific performance. No evidence was produced by the Defendant Nos. 1 and 2 that the three transposed plaintiffs were not ready and willing to discharge their obligations in terms of the respective agreements.
43. Various authorities were cited at the Bar. M/s. Ganesh Trading Co. (supra) held that, a suit for recovery of money due under a promissory note filed by a firm through a partner was allowed to be amended on the ground that, the partnership firm stood dissolved on the date of filing the suit. It was held that, such amendment did not alter the cause of action or the character of the suit nor did it change the identity of the plaintiffs who remained the same. It goes on to say that, if the plaintiffs sought to alter the cause of action itself and to introduce indirectly, through the amendment of the pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint in place of what was originally there, the Court will refuse to permit it if it amounted to depriving the party against which a suit was pending of any right which may have accrued in its favour due to lapse of time.
44. Adverting to the present case the transposed plaintiffs did not alter the nature and character of the suit. The suit was originally was of administration of entire building. Transposition of the defendants or adding the Plaintiff Nos. 1 and 2 as plaintiffs to the suit did not alter the character of the suit from being one of administration of the building to anything else.
45. It was contended that, the original plaintiff Sakhir Chand Dhawan had sought specific performance of his two agreements only and, therefore, when the transposed plaintiffs were asking for specific performance of different agreements for sale the same amounted to substitution and alteration of the original cause of action of the original plaintiffs.
46. The cause of action of the original plaintiff was required to be deduced on a meaningful reading of the original plaint. The original plaintiff was seeking specific performance of his two agreements since the Defendant Nos. 1 and 2 did not perform their obligations in constructing the building and making over the flats to the original plaintiff at the time when the suit was filed. The original plaintiff also sought administration of the entire building. The Defendant Nos. 1 and 2 suggested that, prayer (e) of the original plaint limits the administration of the building to the two flats of original plaintiff Sakhir Chand Dhawan. I have already held that, the two flats of Sakhir Chand Dhawan could not be in an incomplete building and without the entire building being completed and a certificate of completion thereof being issued by the Kolkata Municipal Authorities in respect of the entirety of the building, the original plaintiff could not have had specific performance of his two agreements. In such context, the transposed plaintiffs were not altering of the cause of action of the original plaintiff which was a specific performance of agreements for sale and for administration of the entire building.
47. Jayanta Mohan Chatterjee (supra) held that, amendment of a plaint in appeal where the amendment was such that it was changing the nature and character of the suit and was raising fresh issues triable on evidence, could not be allowed at the belated stage of appeal. I have already held that, the transposition of the present plaintiffs in the category of plaintiffs did not alter the nature and character of the present suit.
48. In Suraj Singh (supra) it was held that, when a proforma defendant in a suit became a co-plaintiff on his own application, he adopted all the statements made in the plaint which support the cause of action and those statements only. The cause of action of the suit was for specific performance of the agreement for sale and the administration of the entire building. The substituted plaintiffs were not doing anything in derogation of the reliefs sought for by the original plaintiff. The reliefs sought for by the transposed plaintiffs were not contrary to the agreements of the original plaintiff.
49. In Udhav Singh (supra) it was held that a pleading had to be read as a whole to ascertain its true import. It was not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Applying the same ratio to the facts of the case the only logical conclusion, in my view, was that, the original plaintiff was seeking specific performance of agreement for sale entered into by the respective allottees with the promoters and for administration of the entirety of the building. In such context the transposed plaintiffs were entitled to seek the reliefs as sought by them.
50. In Mansukhlal & Ors. (supra) the Bombay High Court was of the view that, in the facts of that case, the plaintiffs were not having identical interest. The plaintiffs had individual contracts. Such contracts were on the basis of different facts and different conduct of parties. Facts of the each case required different approach and analysis and as such Order I Rule 1 or Order I Rule 8 was not attracted. It was found that, the suit could not be in the representative character. In the instant case, the common denominator was the building in which all the flats were situate and the completion of such building by appointment of an administrator for the same.
51. In Jugal Kishore Kundu & Ors. (supra) a Division Bench of this Court was of the view that, the Court could not make a new case not made out in the pleadings. In the instant case by allowing transposition the Court did not make out a new case for the transposed plaintiffs as suggested by the Defendant No. 1. In fact, the Court did not allow amendment to the plaint and directed written statement and/or additional written statement filled to be taken into consideration at the final hearing of the suit.
52. In Sheodhari Rai & Ors. (supra) the Court found that on the failure of the defendant to prove his case, the Court could not make out a new case for him which was not only not made in the written statement but which was wholly inconsistent with the title set up by the defendant. The fact scenario in the instant case was completely different. Of the seven transposed plaintiffs three were before me to press their reliefs.
53. The building concerned is complete and the flats involved in the suit are ready for being handed over to the respective allottees. In such circumstances, three of the transposed plaintiffs will be entitled to a decree for specific performance of their respective agreements entered into by them with the Defendant Nos. 1 and 2. Mr. Surya Kant Gupta will be entitled to specific performance of the agreement dated September 24, 1979, the heirs and legal representatives of Kulmit K. Singh would be entitled to specific performance of the agreement dated October 10, 1973 and Usha Rani Gujral will be entitled to specific performance of the agreement dated June 20, 1979. The respective persons noted above will tender the balance of the consideration agreed to be paid under the respective agreements for sale to the Defendant No. 1 together with interest calculated at the rate of 9% per annum on and from the respective dates of the agreements until the date of the tender. Such payment will be tendered by the Advocate on Record of the plaintiffs to the Advocate on Record for the Defendant No. 1. The three transposed plaintiffs will make demand drafts in the name of the Defendant No. 1 in respect of the consideration amount inclusive of interest. The Advocate on Record for the transposed plaintiffs will send such demand drafts by speed post with acknowledgement due card to the Advocate on Record of the Defendant No. 1. The Advocate on Record of the transposed plaintiffs will send and make over the draft conveyances in respect of the three respective agreements for sale to the Advocate for the Defendant No. 1 within a week from date. The Advocate on Record for the Defendant No. 1 will approve of the same within a fortnight thereafter. The Advocate for the transposed plaintiffs will require the Defendant Nos. 1 and 2 to present the deed of conveyance before the appropriate registering authority on any date thereafter. The Defendant Nos. 1 and 2 will be present on such date as fixed by the Advocate for the transposed plaintiffs and will execute such document and take appropriate steps for the purpose of having such documents registered. The cost of registration, however, will be borne by the respective plaintiffs. In the event, Advocate on Record for the Defendant No. 1 failing to take any of the steps as stated hereinabove, the Registrar, Original Side will execute such conveyances and take appropriate steps to have them registered at the cost expense of the transposed plaintiffs. The transposed plaintiffs as indicated will, therefore, be entitled to a decree for specific performance as stated herein. Till the decree is executed, the Defendant Nos. 1 and 2 will not sale, alienate, transfer, encumber, part with possession or create third party rights in respect of the flats in question in favour of any person other than to the persons in execution of this decree.
54. The application for substitution of the Receiver remained for consideration. The suit being decreed, there was no necessity for continuing with the Receiver. The transposed plaintiffs in whose favour the decree is passed jointly will pay a sum of Rs. 1,50,000/- to the Receiver as her full and final remuneration. Such payment is to be made within 15 days from the date. The Receiver will stand discharged immediately without requirement of any file any accounts. All pending applications are disposed of accordingly. No order as to costs.
55. The department will draw and complete the decree as expeditiously as possible.
