A suit for permanent injunction without a declaration of title is not maintainable, particularly where the title is disputed; plaintiffs must include both claims to ensure legal coherence.

JUDGMENT :

Arun Monga, J.

Present revision petition is to set aside impugned order dated 14.10.2022 (Annexure P1) passed by learned Civil Judge (Junior Division), Patiala whereby application dated 06.09.2022 (Annexure P2) under Order 23 Rule 1(3) read with Section 151 of Code of Civil Procedure, 1908 filed by the petitioner-plaintiff to withdraw the suit with liberty to file fresh one on the same cause of action, was dismissed.

2. Learned counsel for the petitioner-plaintiff, inter alia, contends that plaintiff-petitioner filed a suit seeking permanent injunction restraining respondent-defendant from interfering in the peaceful possession of the property in question as well as for mandatory injunction. Notice was issued and respondent-defendant filed written statement. Before framing of issues, plaintiff-petitioner filed an application under Order 23 Rule 1(3) read with Section 151 of Code of Civil Procedure, 1908 seeking permission to withdraw the suit with liberty to file fresh one on the same cause of action. Learned Court below vide impugned order dated 14.10.2022 (Annexure P1) dismissed the said application.

2.1. Learned counsel further contends that at the time of filing the suit, plaintiff-petitioner failed to seek declaration qua the property in question and simpliciter suit for injunction had been filed. He further contends that simpliciter suit for injunction without claiming declaration was not maintainable and as such, there was a formal defect in the suit. Learned counsel also contends that respondent-defendant is not going to suffer any loss on account of the fact that application has been filed by the plaintiff-petitioner at initial stage itself even before framing of issues by learned trial Court.

3. Given the nature of order being passed, there is no necessity to issue notice to the respondent, as no prejudice would be caused to him. Notice to the respondent is thus dispensed with.

4. Heard.

5. Since it is the objection taken by the respondent-defendant in the written statement that in fact she is the owner in possession of the property and simpliciter suit for injunction is not maintainable without seeking declaration qua proprietary rights of the suit property, in the premise, petitioner-plaintiff on legal advice, moved an application to cure the defect in the plaint by seeking to withdraw the suit with liberty to re-file a fresh suit on the same cause of action after carrying out necessary changes, including seeking relief of declaration along with injunction. In this context, reference may also be had to Section 34 read with Section 38 (1) of the SPECIFIC RELIEF ACT , 1963 (for short `Act'). The same are extracted hereinbelow:-

"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."

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38. Perpetual injunction when granted.- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication."