Mannilal Dube vs Gyasiram - 1992 Supreme(MP) 736

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
R.D. Jain, S.K. Jain for appellant; Swami Saran for respondent.

Headnote:(1) Specific Relief Act, 1963 -- S. 34 -- suit for declaration and injunction by plaintiff not in possession - plaintiff should be given an opportunity to amend the plaint asking further relief of possession.
        (2) Civil P.C., 1908 -- O. 6, R. 7 -- amendment of plaint - plaintiff seeking incorporation of prayer for restoration of possession -- should be allowed.

       ¼1½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 34 && dCtk u j[kus okys oknh }kjk ?kks"k.kk vkSj O;kns‘k ds fy, okn && oknh dks dCts ds fy, Hkh vuqrks"k ek¡xus ds fy, la‘kks/ku gsrq volj fn;k tkuk pkfg,A

        ¼2½ flfoy Áfdz;k lafgrk] 1908 && vk-6] fu-17 && okni= dk la‘kks/ku && oknh }kjk dCts ds izR;korZu ds fy, izkFkZuk lfEefyr djus dh bZIlk && vuqKkr dh tkuk pkfg,A

        The plaintiff alleged that he was owner in possession of the suit properly which is a piece of open land where on the defendant had threatened trespass by attempting at sinking foundation. The defendant set up title in himself in denial of plaintiffs title. Both the Courts below have found that the plaintiff was the owner of the suit property and the defendant was a trespasser. The trial Court decreed the suit. The lower appellate Court in spite of having held in favour of the plaintiff on all the material issues, directed the suit to be dismissed solely on the ground that the defendants trespass was a completed act and unless and until the plaintiff had prayed for consequential relief, his suit for declaration and issuance of permanent preventive injunction merely was not maintainable.
        Before this Court, the plaintiff/appellant has moved an application seeking amendment of the plaint so as to claim an additional relief of issuance of injunction in mandatory form directing removal of defendants trespass.
        The prayer for amendment has been opposed by the learned counsel for the defendant/respondent submitting that the prayer was highly belated and the relief which has become time-barred cannot be allowed to be claimed by the plaintiff. The learned counsel also pressed his cross-objections challenging the several findings recorded by the lower appellate Court in favour of the plaintiff. It was also submitted that before the lower appellate Court the defendant/respondent (Appellant threat) had moved an application under Order 41, Rule 27 C.P.C. proposing to place on record material documents of undoubted veracity which would have had material bearing on decision of the points at controversy between the parties.
        Held: It is true, as submitted by the learned counsel for the defendant/respondent, relying on Madho v. Chhotelal (1960 JLJ SN 26) that a bare declaratory suit without conseljuential relief is not maintainable if the plaintiff be in a position to ask for further relief and yet fails in asking for the same. However, that principle of law has to be read along with other principles of law deduced and laid down by a recent decision of this Court on a review of several available authorities of the Supreme Court and this Court in Kalyan Singh v. Vakil Singh and others (1990 MPJR 177).
        Following the law laid down by the Supreme Court in Rukhmahai v. Laxminarayan (AIR 1960 SC 335), this Court has further held in Kalyan Singh (supra) that failure on the part of the plaintiff to ask for further relief does not entail dismissal of the suit automatically hut it is a well settled rule of practice to allow the plaintiff an opportunity of making the necessary amendment. As already stated, such an application was not made before the lower appellate Court because of want of the opportunity; nevertheless the amendment has been applied for before this Court.
        The amendment has to be allowed and is allowed accordingly, but subject to payment of Rs. 100/- by way of costs to the opposite party. Needless to say, the defendant shall have to be allowed an opportunity of incorporating consequential amendment in the written statement. It would be appropriate to remit the matter back to the lower appellate Court which would also examine the necessity of framing additional issues, if any, and having additional evidence recorded on such additional issues. The prayer made under Order 41, Rule 27 C.P.C. by the defendant before the lower appellate Court can very well be considered afresh thereafter.
        For the foregoing reasons, the appeal is allowed. The judgment and decree of the lower appellate Court are set aside. The case is remitted back to the lower appellate Court. The original application for amendment in the plaint filed on 5.11.1992 by the plaintiff/appellant shall also be forwarded to the lower appellate Court which shall permit the amendment being incorporated in the plaint subject to payment of costs within a time limit to be appointed thereat. The appeal shall thereafter, be heard and disposed of afresh in accordance with law and consistently with the observations made hereinabove. There shall be no order as to the costs of this appeal. AIR 1960 SC 335 followed.