A suit for declaratory relief can be maintained independently under Section 34 of the Specific Relief Act, regardless of concurrent claims for possession.

ORDER :

DWARKA DHISH BANSAL, J.

This civil revision has been preferred by the petitioner/defendant 1 challenging the order dated 15.01.2020 (Annexure P/4) passed by 15^th Civil Judge Class-I, Jabalpur in civil suit No.301-A/17, whereby learned court below has dismissed the defendant 1’s application under Order 7 Rule 11 CPC.

2. Learned counsel for the petitioner submits that despite the fact that plaintiff is out of possession and is in a position to seek the relief of possession and partition, has filed the suit simplicitor for declaration of her 1/6th share and permanent injunction. As such he submits that the suit as filed is not maintainable in the light of section 34 of the SPECIFIC RELIEF ACT . He further submits that the plaintiff without any basis, has valued the suit for Rs.50 lacs and has paid fixed court fees, which cannot be said to be proper.

3. Heard learned counsel for the petitioner and perused the record.

4. From perusal of the plaint it is clear that the plaintiff has filed the suit claiming her 1/6th share in the house property, as well as for permanent injunction valuing the suit for declaration at Rs.50 Lacs and for permanent injunction the suit has been valued at Rs.1,000/-. For declaration the plaintiff has paid fixed court fees of Rs.1,000/- and on the valuation of permanent injunction the court fees of Rs.120/- has been paid.

5. In the case of Akkamma and Ors. vs. Vemavathi and Ors. (2022) 2 Supreme 7 = (2021) 14 SCALE 293 the Supreme Court has held as under :

“16. The prohibition or bar contained in proviso to Section 34 of the 1963 Act determines the maintainability of a suit and that issue has to be tested on the basis the plaint is framed. If the plaint contains claims for declaratory relief as also consequential relief in the form of injunction that would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory relief, such relief could be granted. On this count, we do not accept the ratio of the Karnataka High Court judgment in the case of Sri Aralappa (supra) to be good law. In that decision, it has been held:

“31. Even if the plaintiff comes to Court asserting that he is in possession and that if it is found after trial that he was not in possession on the date of the suit, even then, the suit for declaration and permanent injunction is liable to be dismissed as not maintainable, as no decree for permanent injunction can be granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of possession. Therefore, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the suit, when he is able to seek further relief of recovery of possession also, omits to do so, the Court shall not make any such declaration and the suit is liable to be dismissed as not maintainable”.

17. So far as the reliefs claimed in the suit out of which this appeal arises, prayer for declaration was anchored on two instances of interference with the possession of land of the plaintiffs and injunctive relief for restraint from interference with the property was also claimed. But possession of the said property by the original plaintiff was not established. The alternative relief sought to be introduced at a later stage of the suit was also found to be incapable of being entertai