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2019 DIGILAW 485 (JK)

Ghulam Rasool v. Mohd. Sharief

2019-11-05

RAJESH BINDAL

body2019
ORDER : 1. The plaintiff is in appeal against the judgment of the 1st Appellate Court. The appeal was admitted on 26.07.2019 for consideration of the following substantial question of law: “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?” 2. Mr. V. R. Wazir, learned senior counsel appearing for the appellant submitted that the suit was filed by the appellant for declaration 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 by the Trial Court. However, the lower appellate court, though found that the appellant is owner of the property in dispute, however, since he was not found to be in possession and the relief for possession had not been claimed, the suit was dismissed. 3. Referring to a Division Bench judgment of Punjab High Court in Union of India v. Pearl Hosiery Mills, AIR 1961 Punj 281, it was submitted that if the lower appellate court was to come to a finding that the appellant was not in possession of the property and relief for possession had not been claimed in suit, opportunity should have been afforded to him to amend the suit, to seek the relief of possession as well. It is for the reason that the Trial Court had decreed the suit in totality and it was found that the appellant was in possession of the property in dispute. The defendants were restrained from interfering in the possession of the appellant. While referring to the judgment of Hon'ble the Supreme Court in H. Siddiqui (D) By Lrs. v. A. Ramalingam, (2011) 4 SCC 240 , it was submitted that while dealing with appeals the Appellate Court is bound to consider all the issues and the evidence led by the parties. The findings are to be recorded on all the issues while appreciating the evidence. But the learned court below has failed to adhere to those principles. Hence, the judgment of the learned lower Appellate Court deserves to be set aside. 4. The findings are to be recorded on all the issues while appreciating the evidence. But the learned court below has failed to adhere to those principles. Hence, the judgment of the learned lower Appellate Court deserves to be set aside. 4. On the other hand, learned counsel for the respondents submitted that the suit filed by the appellant was totally frivolous and has rightly been dismissed by the learned lower Appellate Court. A simplicitor suit for declaration as owner is not maintainable unless relief for possession is claimed. The appellant very well knew even on the date of filing of suit that he was not in possession of the property. The Trial Court recorded the finding in favour of the appellant only on misreading of evidence. The error was corrected by learned lower Appellate Court. There is no question of grant of opportunity to the appellant to amend the suit at the appellate stage as the amended provisions of Order 6 Rule 17 CPC clearly provided the stage up to which the pleadings could be amended. It is always for a party to seek amendment. 5. No other issue can be raised by the appellant as the appeal was admitted only for consideration of one substantial question of law. In fact at the time of filing of the suit, the appellant made false averment in the plaint regarding he being in possession of the property. It was just with a view to avoid payment of court fee. In fact, the property had been sold by him to the respondents and the consideration money also received. It has been so proved in the evidence led by the respondents. There being no substantial question of law involved in the present appeal. The same deserves to be dismissed. 6. In response, learned counsel for the appellant submitted that there is no evidence led by the respondents to prove the fact that they ever paid any consideration money to the appellant for the alleged sale which they had claimed in their favour. 7. Heard learned counsels for the parties and perused the relevant record. 8. The issue regarding maintainability of simplicitor suit for declaration without consequential relief was considered by Hon'ble the Supreme Court in Venkataraja and others v. Vidyane Doureadjaperumal (D) Thr. 7. Heard learned counsels for the parties and perused the relevant record. 8. The issue regarding maintainability of simplicitor suit for declaration without consequential relief was considered by Hon'ble the Supreme Court in Venkataraja and others v. Vidyane Doureadjaperumal (D) Thr. Lrs and others, 2013 (3) RCR (Civil) 176, wherein considering the earlier judgments on the issue it was opined that a simplicitor suit for declaration is not maintainable. The very purpose of proviso to Section 34 of the Specific Relief Act is to avoid multiplicity of litigation and also check loss of revenue of court fees. History of the law and report of the Law Commission was discussed. A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking amendment of the plaint. The relevant paras there from are extracted below:- “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. 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 ). In Muni Lal v. The Oriental Fire & General Insurance Co. 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 ). In Muni Lal v. The Oriental Fire & General Insurance Co. Ltd & Anr., 1996 (1) R.R.R.418, this Court dealt with declaratory decree, and observed that “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.” In Shakuntla Devi v. Kamla & Ors, (2005) 5 SCC 390 , this court while dealing with the issue held: “a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if 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.” 18. In view of the above, it is evident that the suit filed by the appellant/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent Nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves. As a consequence, the appeal lacks merit and, are accordingly dismissed. There is no order as to costs.” (Emphasis supplied) 9. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves. As a consequence, the appeal lacks merit and, are accordingly dismissed. There is no order as to costs.” (Emphasis supplied) 9. Now coming to the issue raised in the present appeal, in my opinion in para 17 of the aforesaid judgment of the Hon'ble the Supreme Court, the opinion expressed is 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 needful has to be done at the earliest. 10. In the case in hand, at the very first instance the respondents/defendants had taken the plea in the written statement that they are in physical possession of the property in dispute, as they had been delivered the possession in pursuance of sale of the land in their favour. The consideration money was also paid. Despite this plea having been taken by the respondents/defendants in the written statement filed, no steps were taken by the appellant/plaintiff to amend the suit for claiming the relief of possession. Merely because the trial court had recorded a finding in favour of the appellant/plaintiff by misreading the evidence, it is not for the court to grant permission for amendment of the plaint without any prayer made for the same. It is always for the parties to seek permission to amend the pleadings. The court is to decide the lis as presented to the court. Any application for amendment of the pleadings has to be considered in the light of the provisions of law and the stage of the case. 11. As far as the reliance placed on the judgment of the Punjab High Court in Pearl Hosiery's case (supra) is concerned, the same is clearly distinguishable as it was recorded therein that a reading of the plaint and especially the prayer clause contained therein, leaves no manner of doubt that the case was one for declaration and consequential relief and not for a declaration simpliciter. 12. The case in hand is not similar as it was a case simplicitor for declaration where the appellant claimed that he is in actual physical possession of the property. 12. The case in hand is not similar as it was a case simplicitor for declaration where the appellant claimed that he is in actual physical possession of the property. Additional prayer was for injunction restraining the defendants from interfering in their possession. 13. For the reasons mentioned above, the substantial question as framed above, has to be answered in the negative i.e. against the appellant opining 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. 14. As far as plea regarding non-consideration of the evidence and the arguments is concerned, the same is to be noticed and rejected for the reason that the issues have been dealt with by the court below while appreciating the evidence properly to which no error has been pointed out. Findings on the common issues are always recorded while dealing the same collectively instead of individually. 15. For the reasons mentioned above, I do not find any merit in the present appeal, the same is, accordingly, dismissed.