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2019 DIGILAW 36 (CAL)

Fatima Bibi v. Jakir Khan

2019-01-10

BISWAJIT BASU

body2019
JUDGMENT : BISWAJIT BASU, J. 1. The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiffs/appellants in a suit for declaration of title and injunction and is directed against order No. 21 dated August 3, 2016 passed by the learned Additional District Judge, 1st Track Court (1), at Howrah, in Title Appeal No. 104 of 2013. 2. The petitioners filed Title Suit No. 209 of 2008 for declaration of their right, title and interest over the suit property and also for decree of injunction. The learned Trial Judge by the judgment and decree dated September 9, 2013 dismissed the said suit holding that the plaintiffs although are the owners of the suit property but defendants are in possession of the same as such the suit is hit by the proviso to Section 34 of the Specific Relief Act, 1963. 3. The plaintiffs being aggrieved by and dissatisfied with the said judgment and decree preferred an appeal being Title Appeal No. 144 of 2013. The plaintiffs in the said appeal filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking amendment of the plaint to include the prayer for a decree of recovery of possession of the suit property. 4. The learned Judge of the appeal Court below by order impugned has dismissed the said application holding that the plaintiffs practically have admitted the view and judgment of the learned Trial Judge and at this stage they want to amend the whole plaint and there is no explanation why the appellant did not raise this issue at the time of initial stage of the proceeding before the learned Trial Judge in the year 2008. 5. Mr. 5. Mr. Jiban Ratan Chatterjee, learned senior counsel appearing on behalf of the petitioners submits that the learned Trial Judge when has come to the finding that the plaintiffs are the owners of the suit property an opportunity should have been given to the plaintiffs to suitably amend the plaint so as to include the prayer for recovery of possession of the suit property to obviate the bar of the proviso appended to Section 34 of the Specific Relief Act, instead of dismissing the suit on the ground that the defendants are in possession of the suit property and the plaintiffs have omitted to pray for an appropriate decree for recovery of possession of the suit property. 6. In support of his such submission he placed reliance on the decision of the learned Single Judge of this Court in the case of BIBHUTI BHUSAN ROY VERSUS- SARALABALA AND ORS. reported in, (1981) 86 CalWN 735 . 7. Ms. Shebatee Datta, learned Counsel appearing on behalf of the opposite party Nos. 1 to 7 at the threshold submits that the amendment sought for if allowed would contradict the pleadings of the original plaint, inasmuch as the plaintiffs in paragraph Nos. 3,4 and 5 of the original plaint have claimed their possession over the suit property, but by the proposed amendment the plaintiffs are seeking to include the statement that they are not in possession of the suit property without praying deletion of those paragraphs of the plaint. Therefore, according to her the amendment sought for being contradictory to the original pleadings of the plaint cannot be allowed. 8. Ms. Datta, further submits that the plaintiffs in the application for amendment have stated that at the time of trial of the suit it transpired that the plaintiffs are not in a possession of the suit property and in fact on the said ground the amendment of the plaint has been sought for, therefore, according to her the amendment sought for is hit by the proviso appended to Order 6 Rule 17 of the Code as admittedly such amendment has been sought for after commencement of the trial. Ms. Ms. Datta further submits that the decision reported in 86 C.W.N. 735 (supra) is not applicable in the present case as the said judgment was delivered prior to the amendment of the Order 6 Rule 17 of the Code by the Code of Civil Procedure (Amendment) Act, 2002. 9. Ms. Datta, thereafter submits since no leave under Order 2 Rule 2 of the Code has been prayed for in the suit, the plaintiff is debarred under Order 2 Rule 2(3) of the Code from claiming the relief of the possession of the suit property. In support of her such contention she relied on the decision of the Hon'ble Apex Court in the case of VENKATARAJA AND OTHERS Versus VIDYANE DOURER ADJA PERUMAL (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in, (2014) 14 SCC 502 . 10. Ms. Datta, further contends that the suit for declaration of ownership simpliciter without praying the relief of possession is not maintainable. In support of her such contention she relies on the decision of the Hon'ble Apex Court in the case of RAM SARAN AND ANOTHER VERSUS SMT. GANGA DEVI reported in, (1973) 2 SCC 61 . 11. Mr. Chatterjee, learned senior counsel responding to the said submissions of Ms. Datta submits that as soon as the amendment sought for would be allowed the statement of the plaintiff in the plaint regarding their possession over the suit property would automatically be obliterated and as such there will be no contradictions in the statements of the plaint. He further submits that there is no dispute with regard to the proposition of law that when the plaintiff is not in possession of the suit property a suit for declaration of title only over the suit property without the prayer for recovery of possession of it is not maintainable but law is equally settled that in such situation instead of dismissing the suit the plaintiff should be given an opportunity to ask for the relief of possession, which the plaintiffs are now seeking by the proposed amendment. 12. Heard learned Counsels for the parties perused the materials on record. 13. 12. Heard learned Counsels for the parties perused the materials on record. 13. The petitioners filed the Title Suit No. 209 of 2008 in the 2nd Court of learned Civil Judge (Junior Division), at Howrah praying the following reliefs:- "(a) a decree of declaration that as per Deed No. 250 for the year 1920, the plaintiffs and the proforma defendants are the absolute owners of the suit property as scheduled herein below. (b) a decree of Ruther declaration that the principal/defendants have no right title interest over the suit property; and also have no right for illegal invasions over the suit property; (c) a decree of mandatory injunction restraining the principal defendants from making any construction over the suit property; (d) a decree of permanent injunction restraining the principal defendants from digging the earth into the suit property; (e) a decree of temporary injunction against the principal defendants restraining them to change the nature character of the suit property any way; (f) Costs; (g) Any other relief/reliefs as per law and equity;" 14. The plaintiffs in the plaint have claimed that they are in possession of the suit property. On the contrary the defendants in their written statement have claimed that they are possessing the suit property for more than sixty years. The suit property has been described in the schedule of the plaint in the following manner:- SCHEDULE "All that piece and parcel of a mokrari mourasi land measuring a out more or less 13 Kathatah under Mouja Shibpur, P.S. Shibpur, sheet No. 83 within Katian No. 248, Dag No. 144 & 145 now renumbered as 16 & 17 Carry Road, P.S. Shibpur, District- Howrah is the subject matter of the suit being butted and bounded by:- In the East : The land of Abdul Saheb used as Kabarsthan. In the West : Garden land of Nurul Haque Khan and Makshed Ali Khan. In the North : Garden land of Nurul Haque Khan. In the South : Bastu & Bagan land as Shorb Ali Khan." 15. It is apparent from the description of the suit property in the aforementioned schedule that it is a piece of land measuring about 13 katha. The learned Trial Judge considering the documents filed by the parties and exhibited in the suit has come to a conclusion that the suit property is in possession of the defendants. 16. It is apparent from the description of the suit property in the aforementioned schedule that it is a piece of land measuring about 13 katha. The learned Trial Judge considering the documents filed by the parties and exhibited in the suit has come to a conclusion that the suit property is in possession of the defendants. 16. The suit property being a vacant piece of land the plaintiffs to prove their possession over the suit property relied on original khajna dakhila (Exhibit-2) Original L.R. searching form (Exhibit-3) and some other documents. Whereas the defendants to substantiate their claim of having possession over the suit property relied on original khajna dakhila in respect of holding No. 17, Carry Road a part of the suit property (Exhibit-A), notice issued by revenue officer dated May 28, 1999 (Exhibit- B) and some other documents. The documents relied on by the defendant outweighed the claim of the plaintiff of having possession over the suit property. The propriety of the finding of the learned Trial Judge in the judgment under challenge in Title Appeal No. 144 of 2013 regarding possession of the defendants over the suit property on the basis of the documents produced by the defendants would be decided in the said appeal. The plaintiffs however, notwithstanding throwing challenge to the said finding of the learned Trial Judge in the said appeal are now seeking amendment of the plaint to include the prayer for recovery of possession of the suit property in the suit. 17. The plea that further relief though available to the plaintiffs not asked for should be raised at earliest time as has been held by the Hon'ble Apex Court in the case of Mst. Rukhmabai, v. Lala Laxminarayan and Others reported in, (1960) AIR SC 335. Paragraph 30 of the said report being relevant to the present context is reproduced below:- "(30) The next question raised by the learned Counsel for the appellant is that the suit should have been dismissed in limine as the plaintiff asked for a bare declaration though he was in a position to ask for further relief within the meaning of S. 42 of the Specific Relief Act. The proviso to S. 42 of the said Act enacts that "no Court shall make any such declaration when the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so". The proviso to S. 42 of the said Act enacts that "no Court shall make any such declaration when the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so". It is a well-settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. The learned Counsel for the appellant contends that in the plaint the cause of action for the relief of declaration was given as the execution of the partition decree through the Commissioner appointed by the Court and, therefore, the plaintiff should have asked for a permanent injunction restraining the appellant from interfering with his possession. The appellant did not take this plea in the written statement; nor was there any issue in respect thereof, though as many as 12 issues were raised on the pleadings; nor does the judgment of the learned District Judge disclose that the appellant raised any such plea. For the first time the plea based on S. 42 of the Specific Relief Act was raised before the High Court, and even then the argument advanced was that the consequential relief should have been one for partition : the High Court rejected the contention on the ground that the plaintiff, being in possession of the joint family property, was not bound to ask for partition if he did not have the intention to separate himself from the other members of the family. It is not necessary in this case to express our opinion on the question whether the consequential relief should have been asked for; for, this question should have been raised at the earliest point of time, in which event the plaintiff could have asked for necessary amendment to comply with the provisions of S. 42 of the Specific Relief Act. In the circumstance, we are not justified in allowing the appellant to raise the plea before us." 18. On perusal of the written statement it appears that the defendants although have claimed possession over the suit property but did not question the maintainability of the suit on the ground that the plaintiffs being able to seek further relief of possession have omitted to do so as such the suit is hit by the proviso appended to Section 34 of the Specific Relief Act, 1963. It further appears on perusal of the judgment passed in the Title Suit No. 209 of 2008 that although an issue regarding maintainability of the suit in its present form, being issue no. 1 was framed in the suit but the said plea was not specifically taken by the defendants in their written statement. As has been held in the abovementioned reported judgment of the Hon'ble Apex Court that such question should been raised at the earliest point of time in which event the plaintiffs could have prayed for necessary amendment to comply with the provisions of Section 42 now Section 34 of the Specific Relief Act. 19. Under Order 2 Rule 2(3) of the Code when a person is entitled to more than one relief in respect of same cause of action but he omits to sue for all such reliefs shall not afterwards sue for any relief so omitted. The said provision of the Code is reproduced below for ready reference:- ORDER II FRAME OF SUIT 1. Suit to include the whole claim.- (1) .. (2) .. (3) Ommission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. 20. Therefore, it is apparent that the bar under Order 2 Rule 2(3) of the Code is in respect of a fresh suit. The appeal is the continuation of the suit. In the present case the plaintiffs have filed the application for amendment of the plaint in the appeal to include the prayer for recovery of possession of the suit property as such they are seeking the relief possession in the same suit, by amending plaint, not by a fresh suit as such bar under Order 2 Rule 2(3) of the Code does not get attracted in the present case, consequently the decision of the Hon'ble Apex Court reported in (2014) 14 Supreme Court Cases 502 (supra) relied on by Ms. Datta is of no help for her client. 21. Datta is of no help for her client. 21. There is no dispute with regard to the proposition of law that where the plaintiffs being able to seek further relief than a mere declaration the Court shall not make such declaration. It is equally settled position of law that when the plaintiffs omit to seek further relief instead of dismissing the suit for such default opportunity should have been given to the plaintiffs to include the relief so omitted. Therefore, the decision of the Hon'ble Apex Court relied on by Ms. Datta reported in, (1973) 2 SCC 60 (Supra) is also of no help for her client in the facts and circumstances of the present case. 22. It has rightly been pointed out by Mr. Chatterjee, learned senior Counsel that as soon as the amendment as prayed for by the plaintiffs would be allowed the statements of the plaintiffs in the plaint claiming possession over the suit property would automatically be obliterated. Therefore, the amendment sought for cannot be disallowed, on the ground that the proposed amendment if allowed would contradict the averments of the original plaint, as argued by Ms. Datta. 23. The dismissal of the suit on the ground for the omission of the plaintiffs to make appropriate prayer for recovery of possession of the suit property promoted the plaintiffs to seek amendment of the plaint to include the said prayer in the suit. The plaintiffs, therefore, are seeking amendment of the plaint on the basis of the event occurred subsequent to the filing of the suit the proviso appended to Order 6 Rule 17 of the Code has not curtailed and/or restricted the power of the appellate court to amend the pleadings in appropriate cases. Therefore, the submission of Ms. Datta that the amendment sought for cannot be allowed being hit by the proviso under Order Rule 17 of the Code fails. 24. In view of the discussion made above, the order no. 21 dated August 03, 2016 passed by the learned Additional Distract and Sessions Judge, Fast Track Court -1 at Howrah in Title Appeal No. 144 of 2013 is set aside. The plaintiffs/petitioners are directed to file amended plaint within two weeks from date. The defendants/opposite parties are at liberty to file additional written statement within three weeks thereafter. C.O. No. 3366 of 2016 is, thus, allowed. There shall be no order as to costs. The plaintiffs/petitioners are directed to file amended plaint within two weeks from date. The defendants/opposite parties are at liberty to file additional written statement within three weeks thereafter. C.O. No. 3366 of 2016 is, thus, allowed. There shall be no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.