IMPORTANT POINT
The judgment emphasizes the importance of allowing the amendment of pleadings and production of additional evidence to achieve substantial justice, as provided under Order VI Rule 17 CPC and Order 41 Rule 27 CPC.

JUDGMENT :

Miscellaneous second appeal is filed by the defendants praying to set aside the judgment and order dated 11.10.2017 passed by the II Addl. District & Sessions Judge, Mandya, in R.A.No.7/2014 by calling for records in the original suit and in a regular appeal.

2. Rank of the parties are stated as before trial court for easy reference and convenience.

3. The brief facts of the case are as under:

The plaintiffs have filed the suit for declaration, mandatory injunction and permanent injunction to declare that the plaintiffs are the absolute owners and are in possession of the suit schedule property and for mandatory injunction dismantling the borewells dug in the suit land and for consequential relief of permanent injunction. During the pendency of the suit the plaintiffs have filed an application under Order VI Rule 17 CPC seeking for amendment in the plaint and relief of possession. The said application was allowed and the plaint got amended regarding relief of possession. The plaintiffs are claiming title over the suit schedule property by virtue of sale deeds and consequently revenue records prepared. The defendants have contested the suit by filing respective written statement. The trial court after full fledge trial has decreed the suit in part, declaring the plaintiffs as absolute owners of the suit schedule property, but suit of the plaintiffs in respect of relief of possession, mandatory injunction and consequential relief of permanent injunction, is dismissed on the ground that plaintiffs got amended the reliefs so far as possession is concerned, but not pleaded in the plaint regarding possession. Therefore, in the absence of pleadings in the plaint regarding possession, the trial court has decreed the suit only for declaration and dismissed the suit for possession, mandatory injunction and permanent injunction.

4. Being aggrieved by this, the plaintiffs have preferred the regular appeal before the first appellate court on 24.02.2014. During the pendency of the appeal in the year 2017, the plaintiffs have filed applications namely I.A.No.11 under Order VI Rule 17 of CPC for amendment of the plaint and I.A.No.12 is filed under Order 41 Rule 27 of CPC for production of additional evidence. The defendants have also filed cross objection under Order 41 Rule 22 of CPC challenging the findings given so far as relief of declaration is given. The first appellate court has allowed the appeal filed by the plaintiffs thereby setting aside the judgment and decree passed in O.S.No.13/2004 impugned therein so far as dismissing the suit of the plaintiffs in respect of relief of possession, mandatory injunction and permanent injunction. Further, the first appellate court has allowed I.A.No.11 filed under Order VI Rule 17 CPC and I.A.No.12 filed under Order 41 Rule 27 CPC and permitted the plaintiffs to amend the plaint as prayed in I.A.No.11 before the trial court and also permitted to produce the additional evidence as prayed in I.A.No.12 before the trial court. Consequently, the matter is remanded to the trial court with a direction to permit the plaintiffs to amend the plaint and to produce the documents.

5. Being aggrieved by this order of the first appellate court, the defendants have preferred the instant miscellaneous second appeal by invoking the provision under Order 43 Rule 1(u) r/w Section 104 of CPC.

SUBMISSION OF APPELLANTS/ DEFENDANTS:

6. Learned counsel for the defendants/appellants has argued on following grounds:

6.1 The suit filed for mere declaration without seeking relief of possession is not maintainable as per Section 34 of Specific Relief Act, and also suit filed only for declaration, mandatory injunction and for permanent injunction, is not maintainable without seeking relief of possession with necessary pleadings.

6.2 The plaintiffs have got an opportunity when they have filed an application in the suit for amendment under Order VI Rule 17 CPC to get the plaint amended for possessionary relief, but not claimed