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2016 DIGILAW 2122 (HP)

Satya Pal v. Union of India

2016-09-30

SURESHWAR THAKUR

body2016
JUDGMENT : SURESHWAR THAKUR, J. 1. The learned Additional FTC, Shimla, H.P. returned findings against the defendants therein/petitioner No.1 and respondents No. 3 to 5 herein (for short ?the defendants?) on preliminary issues No. 1 and 2 as stand extracted hereinafter. The defendant No. 1/petitioner herein stands aggrieved by the aforesaid findings rendered thereon by the learned trial Court, hence he stands constrained to therefrom institute herebefore the instant revision petition. ?1. Whether the present suit for permanent and prohibitory injunction without seeking declaration of title is maintainable, on the facts pleaded in the plaint? OPP 2. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPP.? 2. An incisive perusal of the plaint unveils of the plaintiffs/respondents herein (for short ?the plaintiffs) claiming a relief of permanent prohibitory injunction qua the suit property vis-à-vis the defendants. A scanning of the plaint also unveils of the plaintiffs acquiescing to the factum of the defendants holding unauthorized possession of the suit land. For reasons assigned hereinafter hence prima-facie the relief of permanent prohibitory injunction ventilated qua the suit property by the plaintiffs vis-à-vis the defendants may falter. 3. The plaintiffs had on various grounds delineated in the plaint assailed the validity of the relevant mutation (s) attested qua the suit land qua the predecessor-in-interest of the contesting defendants. Further more the relief of permanent prohibitory injunction stands thereupon erected by the plaintiffs, relief whereof for reasons hereinafter assigned may prima-facie stagger besides the effect of the plaintiffs' acquiescing qua the contesting defendants holding unauthorized possession of the suit land is qua theirs standing enjoined to apart from challenging the efficacy of the relevant mutation (s) attested qua the suit property vis-à-vis the predecessor-in-interest of the contesting defendants, to also claim a relief of restoration of possession of the suit property from them. However, the plaintiffs omit to both seek a declaratory decree qua setting aside of the relevant mutation (s) attested qua the suit land by the revenue authority vis-à-vis the predecessor in interest of the contesting defendants also omit to ask for a consequential relief for restoration of possession of the suit property to them from the contesting defendants. 4. Concomitantly also advolram Court fee qua the relief of possession remains unaffixed on the plaint. 4. Concomitantly also advolram Court fee qua the relief of possession remains unaffixed on the plaint. The learned Court below has for grossly untenable reasons dispelled the effect of the omissions of the plaintiffs to in their plaint embody the aforesaid relief (s). 5. A perusal of order-sheets makes a vivid disclosure qua the plaintiffs' instituting before this Court OMP No. 613/2004 claiming therein a relief for permission to institute a separate suit for possession qua the suit property. This Court had thereon pronounced orders on 21.5.2004 whereupon the relief as prayed for in the aforesaid OMP stood accorded vis-à-vis the plaintiffs subject to just exceptions besides if a separate suit for possession qua the suit property is maintainable in law. The omissions of the plaintiffs' to materialize the relief as granted to them by this Court on 21.5.2004 justifiably estopps them to ventilate here before when evidently the defendants' hold possession of the suit property qua hence their simpliciter suit for injunction prima-facie holding tenacity also they stand estopped to dehors theirs omitting to ask for a declaratory relief for setting aside the mutation (s) attested qua the suit property qua the predecessor-in-interest of the contesting defendants, espouse here before qua their simpliciter suit for injunction when otherwise for reasons aforesaid is prima-facie embedded in shaky foundations, being maintainable. Conspicuously with the proactive waiver and abandonment of the plaintiffs' comprised in theirs not concerting to materialize the relief as stood granted to them by this Court on 21.5.2004 they prima-facie stand estopped to urge here before qua without a declaratory relief qua the relevant mutation (s) being quashed and set aside their simpliciter suit for injunction being amenable for its standing decreed. Moreso when they do not hold possession of the suit land hence assumingly even if a declaratory decree is affordable, it without the apposite relief of possession standing claimed its rendition if any being illusory besides unfructifiable. 6. Moreso when they do not hold possession of the suit land hence assumingly even if a declaratory decree is affordable, it without the apposite relief of possession standing claimed its rendition if any being illusory besides unfructifiable. 6. Be that as it may the learned counsel for the plaintiffs though had instituted before this Court OMP No. 163 of 2004 whereon this Court had pronounced an order as referred hereinabove yet their counsel despite holding awareness qua the statutory mechanisms engrafted in Order 6 Rule 17 CPC being available to be resorted to, for incorporating in the plaint the relief of declaration qua the relevant mutations being set aside also for incorporating therein the relief of possession of the suit land, he in his wisdom omitted to avail them whereas they constituted the apposite statutory mechanisms for adoption by him. The imposition of trammels or fetters thereon qua its maintainability visibly stands sparked from the awareness of this Court qua the effect of non-availment by the plaintiffs of the apposite statutory mechanisms for begetting incorporation with the leave of the Court the aforesaid relief (s) in the plaint also the imposition of the aforesaid trammels upon the plaintiffs' while this Court proceeded to accord permission to them to institute a separate suit for possession palpably emanated from its perceiving the play of the provisions of Order 2 Rule 2 CPC against the institution of a separate suit by the plaintiffs qua the relevant relief (s) besides causes of action which remained alive at the stage of institution of the extant suit whereat they were peremptorily enjoined to be included or consolidated in the extant suit. The provisions of Order 2 Rule 2 CPC encapsulate therein the trite principle qua the plaintiffs standing peremptorily enjoined to incorporate in their plaint their entire claim qua the suit property, omission whereof begetting the statutory sequel of the subsequent suit holding ventilations qua relief (s) or causes of action evidently accruing or occurring at the stage contemporaneous to the institution of extant suit, facing the ordeal qua its non-maintainability arising from its attracting the embargo of estoppel constituted under Order 2 Rule 2 CPC. Emphatically the underlying nuance of the provisions occurring in Order 2 Rule 2 CPC is to obviate successive institution of suits qua a cause of action or relief which the plaintiffs were peremptorily obliged to consolidate in the earlier suit. Emphatically the underlying nuance of the provisions occurring in Order 2 Rule 2 CPC is to obviate successive institution of suits qua a cause of action or relief which the plaintiffs were peremptorily obliged to consolidate in the earlier suit. However the plaintiffs omitted to consolidate all the causes of action besides all the relief (s), predominantly relief of possession qua the suit property also the relief of declaration qua the relevant mutations attested qua the suit property by the revenue agency vis-à-vis the predecessor in interest of the contesting defendants being quashed and set aside conspicuously when they accrued or occurred at the stage contemporaneous to the institution of the extant suit by them. As a corollary with accentuated vigor, a conclusion is drawable qua their relevant omissions stirring their counsel to proceed to institute before this Court the OMP aforesaid, relief accorded whereon appears to for obvious reasons remain un-actioned by the plaintiffs. The institution of the aforesaid OMP before this Court by the learned counsel for the plaintiffs is a portrayal of theirs acquiescing qua theirs suit suffering from an inherent defect of non-incorporation therein with specificity the apposite relief (s), for overcoming whereof they conceived besides instituted the OMP aforesaid before this Court. Nonetheless the aforesaid OMP obviously is misconceived. In aftermath the inability of the plaintiffs to work to their benefit the provisions of Order 6 Rule 17 CPC for theirs thereupon with the leave of the Court begetting incorporation in the plaint the relief of possession qua the suit property also relief for a declaratory decree qua the mutation (s) attested qua the suit property qua the predecessor-in-interest of the contesting defendants being quashed and set aside prima facie spells doom to the suit of the plaintiff wherein a simpliciter relief of injunction qua the suit property is claimed despite an admission made by the plaintiffs in their plaint qua the defendants' holding its possession whereupon the trite principle of law governing the according or declining of relief of injunction vis-à-vis the plaintiffs' founded upon the plaintiffs evidently holding its possession whereas the aforesaid factum probandum for affording relief of injunction to them for reason aforesaid stands prima-facie negativated besides infracted. In sequel, the effect of the plaintiffs' despite the dire necessity of their incorporation in the apposite relevant portion of the plaint not concerting to beget the apposite amendments in the plaint, is qua the learned Court below hence overlooking their impact. Also the effect of the afore-stated proactive omissions, abandonments and waivers of the plaintiffs' is conspicuously qua theirs prima-facie estopping the plaintiffs' to prima-facie seek a simpliciter relief of injunction qua the suit property. In aftermath, the preliminary issues afore-stated were trite vis-à-vis the relevant omissions also were enjoined to be read by the learned trial Court in conjunction with the aforesaid omissions on the part of the plaintiffs to beget the apposite amendments in the plaint whereas the learned trial Court has committed a gross impropriety by relegating their effect to the realm of obscurity predominantly when the apposite provisions engrafted in Order 6 Rule 17 CPC are an exception to the provisions of Order 2 Rule 2 CPC and could well be resorted to by the counsel for the plaintiff to preempt the sway of the provisions of Order 2 Rule 2 CPC vis-à-vis the subsequently instituted suit against the defendants qua causes of action besides a relief which had occurred contemporaneous to the stage of institution of the extant suit. 7. Consequently when the relief of permanent prohibitory injunction claimed by the plaintiffs for reasons aforesaid may prima-face falter also when the trite assault qua the contesting defendants' holding unauthorized possession of the suit property stands anvilled upon the relevant mutation (s) attested qua it by the revenue agency concerned vis-à-vis the predecessor-in-interest of the contesting defendants', holding no validity. Obviously it was incumbent upon the plaintiffs to seek a declaratory relief qua the relevant mutation (s) being quashed and set aside. Also it was incumbent upon the plaintiffs' to seek a consequential relief of possession qua the suit property. Moreover, it was also incumbent upon the plaintiffs' to affix advalorem Court fee on the plaint vis-à-vis relief of possession. However, all the aforesaid facets remained un-attended by the plaintiffs. Significantly when the relevant apposite averments in consonance therewith remain unincorporated in the apposite relevant para of the plaint despite the dire necessity of their incorporation therein, entails a ensuing sequel qua the findings returned in favour the plaintiffs on preliminary issues extracted hereinabove suffering from an inherent fallacy. However, all the aforesaid facets remained un-attended by the plaintiffs. Significantly when the relevant apposite averments in consonance therewith remain unincorporated in the apposite relevant para of the plaint despite the dire necessity of their incorporation therein, entails a ensuing sequel qua the findings returned in favour the plaintiffs on preliminary issues extracted hereinabove suffering from an inherent fallacy. The reason for the plaintiffs not availing the mechanism engrafted in order 6 Rule 17 CPC for thereupon theirs with the leave of the Court incorporating in the relief clause of the plaint the relevant amendments afore-stated, though their incorporation therein was of utmost significance besides was facilitative qua rendition of an omnibus executable decree qua the suit property, visibly generated from their contriving to not affix on the plaint advalorem Court fee vis-à-vis the relief of possession. 8. The learned Deputy Advocate General has relied upon a decision of Hon'ble Apex Court reported in (1989) 3 SCC 612 , relevant paragraph whereof is extracted hereinafter wherein it stood mandated qua the entire plaint standing read and not the relief portion alone, reading whereof when unveils of the relief of injunction standing foisted upon the predominant factum of the aggrieved plaintiffs thereupon concerting to establish title qua the suit property would render a simpliciter suit for injunction to be maintainable dehors the plaintiffs' not asking for a relief of declaratory decree of title qua the suit property also therein theirs not asking for relief of possession of the suit property. However this Court would not accept the contention of the learned Deputy Advocate General given the foundation of his contention resting upon a verdict of the Hon'ble Apex Court getting shaken in the evident contradistinctivity occurring in the factual matrix prevailing thereat vis-à-vis the factual matrix prevailing hereat, tritely the one of therein the plaintiffs holding possession of the suit land, factum whereof stood concluded by the Hon'ble Apex Court to not debar the plaintiffs to obtain relief of injunction dehors its not claiming the declaratory decree of title qua it, significantly when relief of injunction on a wholesome reading of the plaint stood entrenched on title thereto standing evidently asserted by the plaintiffs also with the revenue records therein qua the suit land depicting the plaintiff therein to be holding title to the suit property whereas hereat with the plaintiffs' acquiescing qua the defendants holding unauthorized possession of the suit property contrarily enjoined them, to, especially when they also assail the legitimacy of the relevant mutation (s) attested qua the suit property, qua the predecessor-in-interest of the contesting defendants, concomitantly ask for a declaratory decree for theirs being quashed and set aside, preeminently when the title of the defendants qua the suit land rests upon the relevant mutation (s), mutation (s) whereof unless prayed to be set aside would preserve the title of the contesting defendants in the suit property. Tritely when hence for stripping the relevant mutation (s) of their validity a consequential relief qua theirs standing declared to be quashed and set aside was enjoined to imperatively occur in the plaint, its nonoccurrence therein would render the relevant averments constituted in the plaint qua theirs purportedly holding invalidity to be merely an idle exercise. Tritely when hence for stripping the relevant mutation (s) of their validity a consequential relief qua theirs standing declared to be quashed and set aside was enjoined to imperatively occur in the plaint, its nonoccurrence therein would render the relevant averments constituted in the plaint qua theirs purportedly holding invalidity to be merely an idle exercise. In sequel with the plaintiff in a case relied upon by the learned Deputy Advocate General standing depicted in the relevant records to be holding title to the suit property therein also his prima-facie holding its possession obviously constrained the Hon'ble Apex Court to construe of a simpliciter suit for injunction being maintainable against the defendants dehors the plaintiff therein not asking for a declaratory decree of title qua the suit property, especially when title to the suit property of the plaintiff therein was not under cloud whereas the plaintiffs' herein concerting to cloud the title of the defendant qua the suit land also with the defendants holding possession of the suit property, besides the revenue records concerned manifesting of the defendants standing pronounced therein to be holding ownership of the suit property warranted the plaintiffs to, also when they do not hold its possession, not constitute a simplicitor suit for injunction rather to by resorting to the provisions of Order 6 Rule 17 CPC concert to with the leave of the Court incorporate in the plaint all the relief (s) inclusive of possession of the suit property also qua a declaratory decree of the relevant mutation (s) being quashed and set aside, preeminently when to strip the vigor of the mandate of Order 2 Rule 2 CPC their incorporation in the extant suit in the afore-stated manner by the plaintiffs was a preemptory necessity also when the provisions of Order 6 Rule 17 CPC are a statutory exception thereto. Consequently all the omissions qua the facets aforesaid by the plaintiffs does constrain this Court to conclude of the findings recorded by the learned Court on the preliminary issues aforesaid being amenable for interference. ?So far the scope of the suit is concerned, a perusal of the plaint clearly indicates that the foundation of the claim of the plaintiffs is the title which they have pleaded in express terms in paragraph 2 of the plaint. ?So far the scope of the suit is concerned, a perusal of the plaint clearly indicates that the foundation of the claim of the plaintiffs is the title which they have pleaded in express terms in paragraph 2 of the plaint. It has been stated that after cancelling the acquisition of the suit property for a burial ground the land was transferred to Guttahalli Hanumaiah under G.O No. 3540 dated June 10, 1929 on payment of upset price. In paragraphs 3 and 5 the plaintiffs have reiterated that the first plaintiff was the owner-in-possession. It is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion, and the plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the appellant corporation. The Court fee payable on the plaint has also to be assessed accordingly. It follows that the appellant's objection that the suit is not maintainable has to be rejected. The Additional Civil Judge, who heard the appeal from the judgment of the trial Court, examined the question of the plaintiffs' separately taken up and it was found that the plaintiffs had failed to prove their possession until August 24,1973 when they allege that the appellant corporation trespassed. Accordingly the appeal was allowed and the suit was dismissed.? 9. In view of the above, the present petition stands allowed. The impugned order stands quashed and set aside. Records be sent back. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.