There are two substantial questions that have been answered by the Hon’ble High Court in the instant Judgment. First, whether Simpliciter suit for declaration is maintainable without seeking consequential relief and the stage of seeking amendment of pleadings to claim the unsought relief.
A civil suit was filed by the appellant before the trial court for declaring him as owner of the land in dispute and further for decree of permanent prohibitory injunction restraining the defendants from interfering in the possession of the appellant. The suit was decreed in favour of the appellant/plaintiff.
Thereafter the defendant filed first appeal before the Appellate Court (Trial Court) on the ground that a simplicitor suit for declaration as owner is not maintainable unless relief for possession is also claimed. The appellate Court below though found that the appellant is the owner of the property in dispute, dismissed the suit on the ground that the appellant is not found to be in possession and the relief for possession has not been claimed. The appellant has challenged the impugned judgment of the First appellate Court before the High Court by filing Second Civil Appeal.
In the said appeal, the substantial question of law was framed for consideration;
Whether the First Appellate Court, after upholding the decree of the trial Court with regard to the declaration of ownership of the appellant, could have dismissed the suit on the ground that the appellant had not prayed for any relief of possession, without first affording an opportunity to him to amend the suit and claim the relief of possession?
Observations of the Court:
The Single Bench of the Hon’ble High Court presided over by Justice Rajesh Bindal noted that the appellant at the time of filing of suit made false averment in the plaint regarding his being in possession of the property just in order to avoid the payment of court fee.
The Court referred to various judgments while considering the question of maintainability of simplicitor suit for declaration without seeking consequential relief.
The relevant paras of the judgments are given below;
Venkataraja and others v. Vidyane Doureadjaperumal (D) Thr. Lrs and others, 2013 (3) RCR (Civil) 176
13. Thus, the only relevant issue on which the judgment hinges upon is, whether the suit was maintainable without seeking any consequential relief.
In Deo Kuer & Anr. V. Sheo Prasad Singh & Ors., AIR 1966 SC 359, this Court dealt with a similar issue, and considered the provisions of Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the plaintiff in a suit to declaration of title to property, to claim the possession. While laying down such a proposition, this Court placed reliance upon the judgments of Privy Council in Sunder Singh Mallah Singh Sanatan Dharam High School Trust v. Managing Committee, Sunder Singh Mullah Singh Rajput High School, AIR 1938 PC 73; and Humayum Begam v Shah Mohammad Khan, AIR 1943 PC 94.
14. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, this Court while dealing with a similar issue held:
“It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.” (emphasis added)
15. The facts in the case of Deo Kuer (Supra) are quite distinguishable from the facts of this case, as in that case the tenants were not before the court as parties. In the instant case, respondent Nos. 3 to 10 are tenants, residing in the suit property. The said respondents were definitely in a position to deliver the possession. Therefore, to say that the appellants would be entitled to file an independent proceedings for their eviction under a different statute, would amount to defeating the provisions of Order 2 Rule 2 Civil Procedure Code as well as the proviso to Section 34 of the Act 1963. Thus, the First Appellate Court, as well as the High Court failed to consider this question of paramount importance.
16. The very purpose of the proviso to Section 34 of the Act 1963, is to avoid the multiplicity of the proceedings, and also the loss of revenue of court fees. When the Specific Relief Act, 1877 was in force, the 9th Report of the law Commission of India, 1958, had suggested certain amendments in the proviso, according to which, the plaintiff could seek declaratory relief without seeking any consequential relief, if he sought permission of the court to make his subsequent claim in another suit/proceedings. However, such an amendment was not accepted. There is no provision analogous to such suggestion in the Act 1963.
17. A mere declaratory decree remains non-executable in most cases generally. However this is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC 2065; and State of M.P.V. Mangilal Sharma, 1998 (1) S.C.T 322).
Mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the plaintiff to seek both reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief.
“a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like a possession. In such cases, if a suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree.”
The Court held in light of the judgments referred hereinabove that the simpliciter suit for declaration is not maintainable without seeking consequential relief.
The Court also opined that there is no bar upon a party from seeking amendment of the plaint to include the unsought relief, provided that it is saved by limitation.
The Court also observed that since the defendants in their written statement had taken the plea that they are in actual possession of the property in dispute, no steps were taken by the appellant/plaintiff to amend the suit for claiming the relief of possession.
The Court while dismissing the appeal held that it is not for the Courts to grant opportunity to any party to amend the pleadings without any prayer made for the purpose. Prayer has to be made by the parties. As and when such a prayer is made, the Court is to consider the same in terms of law laid down for the purpose and the stage of the case.
Civil Second Appeal No: CSA No. 17/2017
Mr. V. R. Wazir, Sr. Advocate with Mr. Neeraj Magotra, Advocate appeared on behalf of the appellant.
Mr. Shiekh Najeeb, Advocate appeared on behalf of the respondents.