Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1181 (PNJ)

Gurpreet Kaur v. Sub Post Master

2012-09-11

M.Jeyapaul

body2012
JUDGMENT Mr. M. Jeyapaul, J.:- C.M.NO.10786-C of 2012. For the reasons stated in the application, the delay in filing the appeal is condoned. RSA No.3977 of 2012 The 5th defendant Gurpreet Kaur who was non suited by both the Courts below has come up with the appeal before this Court challenging the mandatory relief granted in favour of the plaintiff, despite the fact that only permanent injunction was sought for by the plaintiff in the suit. 2. It is the case of the plaintiff that he opened two Monthly Income Scheme (MIS) accounts on 13.07.2012 for a sum of Rs. 2 lacs each for a period of 6 years along with his sister Gurpreet Kaur, the 5th defendant in the suit. Taking advantage of the fact that the 5th defendant figures as the first depositor, she proposed to withdraw the amount exclusively without sharing the money with the plaintiff. Apprehending that the first defendant Sub Post Master of the Sub Post office and C.P.M.G., Haryana Circle, Ambala, may make payment in any of the accounts in the name of the plaintiff and the 5th defendant, the plaintiff has filed the suit seeking permanent injunction restraining the defendants no.1 and 2 from making any payment of those two deposits to defendants no.3 and 6 without his consent and approval. Of course, the plaintiff also has sought yet another relief for restraining the defendants no.3 to 6 from withdrawing any amount from defendants no.1 and 2 against any other accounts which is either in their names jointly or with the plaintiff without consent and approval of the plaintiff. 3. The 1st and 2nd defendants have contended that as per the Post office rules anyone of the depositors can very well approach the Post Office along with the withdrawal form and pass book for releasing the amount on maturity. The moment the payment is made by the Post Office to such a depositor, the liability of the Post Office stands discharged. 4. The defendants no.3 to 5 have contended in their separate written statements that the name of the first defendant finds the first place at the pass book as she was the person who deposited the amount. The name of the plaintiff was added as he was only a nominee. It is contended by them that the plaintiff has got no right to restrain the answering defendants from receiving withdrawing the amounts. The name of the plaintiff was added as he was only a nominee. It is contended by them that the plaintiff has got no right to restrain the answering defendants from receiving withdrawing the amounts. Both the Courts below having thoroughly analyzed the evidence on record returned the finding that the pass books Ex. D3 and D4 have been issued in the joint names of the plaintiff and the 5th defendant-appellant. They have also held that the case of the defendants no.3 to 5 that the plaintiff was only a nominee was not substantiated. Both the Courts having found that the 5th defendant as per the rules of the Post Office may withdraw the amount being one of the depositors on production of the withdrawal form along with the pass book and walk away with the money without giving the share of the plaintiff, moulded the relief sought for permanent injunction and granted mandatory injunction directing the defendants no.1 and 2 to pay the amount deposited in the subject MIS accounts both to the plaintiff and the 5th defendant equally. They have also restrained permanently from paying the amount lying in those two accounts to any of the defendants no.3 to 6. 5. The learned counsel appearing for the appellant-5th defendant would submit that DW2 Avtar Kaur, mother of the plaintiff and the 5th defendant has deposed that the amount was deposited in the subject MIS accounts only for the benefit of the 5th defendant and 6th defendant who are her daughters, on receipt of terminal benefits. Therefore, the very admission of DW2 would falsify the case of the plaintiff that he contributed anything to the subject deposit. Further, it is his contention that the plaintiff has been shown as one of the account holders in the deposit account only in his capacity as a nominee. It is his vehement contention that when there is no prayer for mandatory injunction the Courts below travelling beyond the scope of Order 7 Rule 7 of the Code of Civil Procedure should not have granted mandatory injunction which was not sought for. He also cited the decision of the Hon’ble Supreme Court in Dr.Shehla Burney and others versus Syed Ali Mossa Raza(Dead) by Lrs. He also cited the decision of the Hon’ble Supreme Court in Dr.Shehla Burney and others versus Syed Ali Mossa Raza(Dead) by Lrs. and others, [2011(5) Law Herald (SC) 3836] : 2011(6) SCC 529 , to support his contention that in the absence of pleading and necessary prayer sought for, no relief can be granted. 6. It is found that the defence set up by the defendants no.3 to 5 that the plaintiffs name was incorporated in the pass books Ex. D3 and D5 only as nominee, does not hold water, in as much as the name of the plaintiff figured as one of the depositors in the pass books Ex.D3 and D5 along with the Gurpreet Kaur, the appellant herein. Just because the appellant’s name figures at the first place and the plaintiff’s name figures in the second slot in the pass book, no presumption can be drawn that the person referrable to the second name is only a nominee and the person referrable to the first name in the pass book, is the sole depositor. On facts it has been held by both the Courts below that the column bearing ‘nominee’ has been left blank. If at all the plaintiff has been intended to be shown as nominee, his name would have been incorporated against the column ‘nominee’ in the pass book. The very fact that the plaintiff’s name finds a place along with the appellant herein would go to establish that the plaintiff as well as the appellant are co-depositors as rightly held by the Courts below. 7. DW2 Avtar Kaur, supporting the defence set up by the 5th defendant, would depose that the pensionary benefits were deposited in the name of the 5th defendant only for the benefit of the daughters. No oral evidence can be let in to upset the documentary proof available on record. The documentary evidence in the form of Ex.D3 and D5 produced before the Court would go to establish that there is no scope for doubt that the deposit has been made only in the name of the plaintiff and the appellant herein as both of them figure as depositors in the pass book issued by the first defendant. The documentary evidence in the form of Ex.D3 and D5 produced before the Court would go to establish that there is no scope for doubt that the deposit has been made only in the name of the plaintiff and the appellant herein as both of them figure as depositors in the pass book issued by the first defendant. As rightly held by the Courts below both of them are equally entitled to share the amount, though, as per the rules of the Post Office any one of the depositors can withdraw the amount by producing the withdrawal slip along with the pass book in his or her possession. 8. In the aforesaid decision referred to by the learned counsel appearing for the appellant, I do not find any observation made by the Hon’ble Supreme Court that the Courts are prohibited from granting relief moulding the original relief sought for in the plaint. That was the case where no relief sought for by the plaintiff in that suit as against one of the defendants namely the second defendant. But the Court has granted a relief in favour of the plaintiff as against the second defendant therein. In such circumstances The Hon’ble Supreme Court has held that when there was no relief sought for against a particular defendant a relief should not have been granted as against him. 9. As per the provisions of Order 7 Rule 7 of the Code of Civil Procedure, the plaintiff is bound to state specifically the relief sought for by him. Order 7 Rule 7 of the Code of Civil Procedure does not prohibit the Court from moulding the relief and grant necessary relief to avoid further litigation. 10. In the instant case, it appears that necessary pleadings have been properly pleaded by both the parties to the suit. Relevant issues have also been framed. Both the parties have let in evidence adverting to those issues framed. The Courts below having found that the 5th defendant may walk away with the entire deposit amount by producing the withdrawal slip and the pass book in her possession to the 1st defendant, thought it fit to mould the relief. 11. In my considered view, the relief granted in the nature of mandatory injunction is the consequence of moulding of the relief of permanent injunction originally sought for by the plaintiff. 11. In my considered view, the relief granted in the nature of mandatory injunction is the consequence of moulding of the relief of permanent injunction originally sought for by the plaintiff. Further, such a moulded relief was warranted in the facts and circumstances of the case in order to avoid further litigation between the parties concerned. I find that the Courts below have rightly determined the issues involved in the suit. I do not find any merit in the appeal. No substantial question of law has arisen in the appeal. Therefore, the appeal stands dismissed. No costs. --------0.B.S.0------------