Hon'ble Om Prakash-VII,J.
(Delivered by Hon'ble Rajes Kumar, J.) Heard Sri P.K. Ganguly, learned counsel for the appellants and Sri M.D. Singh Shekhar, learned Senior Advocate, appearing on behalf of the respondents.
This is an Appeal against the order of the Civil Judge (Senior Division), Kanpur Nagar, dated 2nd August, 2014 by which the Suit no. 107/14, filed by the appellants, under Order VII, Rule 11 of the Code of Civil Procedure (In short 'CPC'), has been rejected on the ground that the suit for declaration without seeking the relief of possession is not maintainable.
The appellants filed the Suit No. 107 of 2014, seeking following reliefs:
"A) A decree for Declaration that the plaintiffs are the sole and exclusive owners of the premises No. 117/193, I- block, Navin Nagar, Kanpur Nagar, fully detailed and bounded below.
B) A decree for Permanent Injunction restraining the defendants, their agents servants and assigns from causing any interference in the free ingress and egress by the plaintiffs and from forcefully dispossessing the plaintiffs from the suit accommodation viz ground floor portion, excluding one room on the front side of premises no. 117/193, I-block, Navin Nagar, Kakadeo, Kanpur, both fully detained at the foot of the plaint, and from taking its illegal possession till disposal of the suit.
C) Cost of the suit be passed in favour of the plaintiffs and against the defendant.
D)Any other relief which this learned court deems fit and proper in the circumstances of the case may also be passed in favour of the plaintiffs against the defendant."
It appears that the appellants also moved an application, under Order 39, Rule 1 of the CPC, seeking the interim relief. The court below, after hearing both the parties, granted interim injunction on 15th April, 2014. It further appears that the respondent-defendants filed an application, under Order VII, Rule 11 of the CPC, with the prayer to reject the plaint as the suit is barred by the provisions of Section 34 of the Specific Relief Act. The respondent-defendants also filed FAFO No. 1512 of 2014 before this Court against the order dated 15th April, 2014, passed by the Trial court, granting interim injunction. This Court, by the order dated 20th May, 2014, has directed the Trial court to dispose of the application, under Order VII, Rule 11 of the CPC pursuant to which present impugned order has been passed by the Trial court.
Learned counsel for the appellants submitted that in the house in dispute, the respondent-defendants are in possession of one room on the ground floor and one room on the first floor. Rest portion of the house in dispute is in the possession of the appellants.
There is no dispute about this fact. The Trial court has rejected the suit on the ground that in the suit, relief of declaration, declaring the plaintiffs as the sole and exclusive owners of premises no. 117/193, I-block, Navin Nagar, Kanpur Nagar, has been sought, though the defendants are in possession of one of the room on the ground floor and one of the room on the first floor, but no relief has been sought seeking possession of the said room on the ground floor and the other room on the first floor. Therefore, the suit is barred by Section 34 of the Specific Relief Act. Reliance has been placed by the Trial court on the decisions of the Apex Court in the case of Vinay Krishna v. Keshav Chandra, reported in AIR 1993 SC 957 and the case reported in AIR 2002 SC 1499.
Learned counsel for the appellants submitted that no opportunity has been given to the appellants to amend the plaint. If the opportunity would have been afforded to them, they would have would have amended the plaint. The reliance is being placed on the decision of the Apex Court in the case of Sampath Kumar v. Ayya Kannu and another, reported in (2002) 7 SCC 559. He further submitted that under Order VII, Rule 11 of the CPC, the application, under Order VII, Rule 1 is to be decided on the basis of the averments made in the plaint and not on the basis of the plea taken in the written statement. To strengthen his submission, learned counsel placed reliance on the decision of the Apex Court in the case of Saleem Bhai and others v. State of Maharashtra and others, reported in (2003) 1 SCC 557. The submission is that Order VII, Rule 11(d) applies only in a situation where the statement, as made in the plaint, without any doubt or dispute, shows that the suit is barred by any law in force. It does not apply in a case where disputed questions are involved. Reliance is being placed on a decision of the Apex Court in the case of Popat and Kotecha Property v. State Bank of India Staff Association, reported in (2005) 7 SCC 510.
Learned counsel for the respondents submitted that it is apparent from the plaint that a decree for declaration to declare the appellants as the sole and exclusive owners of house no. 117/193, I-block, Navin Nagar, Kanpur Nagar, has been sought. Admittedly, one of the shop on the ground floor and on the first floor are in possession of the respondents. Therefore, without seeking the relief for possession of those portions, which are not in the possession of the appellants, suit for declaration is barred by Section 34 of the Specific Relief Act and proviso to Section 42. To buttress the submission, Reliance is being placed on the decision of the Apex Court in the case of Vinay Krishna v. Keshav Chandra, reported in (1993) Suppl. 3 SC 129. He submitted that ample time was available to the appellants to move the amendment application to amend the relief, if they so desired, but no such amendment application has been moved. Therefore, the court below proceeded to decide the suit on the basis of the admitted facts and the averments made in the plaint. It is submitted by Sri Shekhar that the appellants are not remedy-less, even after dismissal of the present suit, it is open to them to file a fresh suit as provided under Order 7, Rule 13 of the CPC.
We have considered rival submission and perused the record.
We do not find any error in the impugned order. The relief sought in the plaint has been referred hereinabove. The admitted fact is that the appellants were not in possession of one of the shop on the ground floor and the other on the first floor of the house in dispute, while the decree of declaration was being sought to declare the appellants as the sole and exclusive owners of the house no. 117/193/I, block, Navin Nagar, Kanpur Nagar, without seeking the relief of possession of those portions of the house which were not in the possession of the appellants.
Section 34 of the Specific Relief Act reads as follows:
34. Discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a little adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."
Section 34 is pari materia to Section 42 of the Specific Relief Act, 1877 before the amendment.
In the case of Vinay Krishna v. Keshav Chandra (Supra), the Apex Court categorically held that if the plaintiff had been in possession, then a suit of mere declaration would be maintainable. The Apex Court in paragraph 14 of the said judgment held as follows:
"14- From the reading of the plaint it is clear that the specific case of the plaintiff Jamuna Kunwar was that she was in exclusive possession of property bearing No. 52 as well. She thought that it was not necessary to seek the additional relief of possession. However, in view of the written statement of both the first and the second defendant raising the plea of bar under Section 42, the plaintiff ought to have amended and prayed for the relief of possession also. Inasmuch as the plaintiff did not choose to do so she took a risk. It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There was 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."
In the case of Mehar Chandra Das v. Lal Babu Siddiqui, reported in (2007) 14 SCC 535, the apex Court held as follows:
"11. The appellant defendant, therefore, had been in possession of the suit property. In that view of the matter the respondent-plaintiffs could seek for further relief other than for a decree of mere declaration of title.
12. The High Court, in our opinion, committed a manifest error in not relying the decision of this Court in Vinay Krishna. The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable."
In a recent case, reported in (2013) 3 AWC (SC) 2213, Venkata Raja and others v. Vidyane Doureradjaperumal (D) through Lrs and others, the Apex Court held as follows:
"17. A mere declaratory decree remains non-executable in most cases generally. However, there 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 : Prakash Chand Khurana etc. v. Harnam Singh and others, AIR 1973 SC 2065 and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal v. Oriental Fire and General Insurance Co. Ltd. And another, AIR 1996 SC 642, this Court dealt with declaratory decree, and observed that "mere declaration without consequential relief dos 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 and others, (2005) 5 SCC 390 : 2005 (2) SCCD 838 : 2005 (2) AWC 1599 (SC), 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 appellants/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 worshiper 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 therein was for the benefit of the appellants/plaintiffs themselves.
As a consequence, the appeals lack merit and, are accordingly dismissed. There is no order as to costs."
In view of the law laid down by the Apex Court, we are of the view that the Trial court has not committed any error in rejecting the suit as barred by Section 34 of the Specific Relief Act.
The decisions cited by the learned counsel for the appellants, referred hereinabove, are not applicable to the present case and are of no help to the appellants. The appellants are not remedy-less. It is open to them to file a fresh suit, as provided under Order VII, Rule 11 of the CPC.
In view of what has been discussed above, in the result, the Appeal, being devoid of merits, fails and is dismissed.
Order Date :- 5.9.2014 bgs/