Chandra Kanta Saikia Vs Bhabakanta Borah

2. In this petition under Article 227 of the Constitution of India and Section 115, read with Section 151 of the Code of Civil Procedure, the petitioner has challenged the order dated 13.12.2024, passed in Misc.(J) Case No.14/2024, in Title Suit No.03/2016, passed by the learned Civil Judge (Jr. Division), Bokakhat. It is to be noted here that vide impugned order dated 13.12.2024, passed in Misc.(J) Case No.14/2024, arising out of Title Suit No.03/2016, the learned Civil Judge (Jr. Division), Bokakhat (Trial Court, for short), has dismissed the petition filed by the petitioner, under Order VII Rule 11 of the CPC, for rejection of the plaint.

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3. Mr. Das, learned counsel for the petitioner submits that the respondent herein, as plaintiff, has instituted a title suit, being Title Suit No. 03/2016, arraying the present petitioner as defendant, praying for following relief(s):-

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(a) a decree of eviction of the defendants from the suit land and handing over the possession of the same to the plaintiff,

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(b) a decree of permanent injunction over the rented premises restraining the defendants from any sort of disturbance upon the plaintiff,

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(c) cost of the suit and

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(d) any other relief/reliefs to which the plaintiff may be entitled to.

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Mr. Das further submits that in the said title suit, the petitioner herein has filed written statement and contested the suit. Thereafter, the petitioner has filed a petition before the learned Trial Court, for rejection of the plaint on 04.10.2024, under Order VII Rule 11 and Section 34 of the Specific Relief Act read with Section 151 CPC, on the ground that though the plaintiff has sought for consequential relief, yet it has not sought for any declaration of the suit and without there being any declaratory relief, a suit for eviction and permanent injunction is not maintainable under the provision of the law. Upon the said petition the learned Trial Court has registered a Misc Case, being Misc. (J) Case No. 14/2024. But, the learned Trial Court after hearing both the parties has dismissed the petition, vide impugned order, dated 13.12.2024.

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4. Mr. Das further submits that while rejecting the petition under Order VII Rule 11, read with Section 151 CPC and Section 34 of the Specific Relief Act, the learned Trial Court has relied upon a decision of Hon'ble Supreme Court in the case of Gurdev Singh vs. Harvinder Singh , [Special Leave to Appeal (C) No.19018/2022, dated 09.11.2022]. He also submits that the learned Trial Court has also held that the issue raised by the petitioner is an issue to be heard on merit, which may arise between the parties and would not be within the realm of Order VII Rule 11 of the CPC and that the order, so passed by the learned Trial Court and the observation so made are illegal and arbitrary and under such circumstances, Mr. Das has contended to allow this petition by setting aside the impugned order. In support of his submission, Mr. Das has also referred to a decision of Hon'ble Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs & Ors. , reported in (2008) 4 SCC 594 .

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5. Per contra, Mr. Sahu, learned counsel for the respondent has supported the impugned order passed by the learned Trial Court. Mr. Sahu submits that though the prayer for declaration has not been made in the title suit, yet, the respondent herein has prayed for consequential relief in the plaint and apart from permanent injunction and possession, he has also prayed for any other relief which the respondent/plaintiff is entitled to and that the learned Trial Court has rightly held that the issue is to be heard on merit and cannot be decided in a petition under Order VII Rule 11 of the CPC. Under the above facts and circumstances, Mr. Sahu has contended to dismiss this petition. In support of his submission, he has referred the following decisions of Hon'ble Supreme Court, and also of a Coordinate Bench of this Court and also of Madhya Pradesh High Court:-

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(i) Gurdev Singh (supra) ;

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(ii) Abdul Latif & Ors. v. On the Death of Digendra Nath His Legal Heirs & Wife , reported in 2003 (3) GLR 611 ; and

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(iii) Qamarali Wahid Ali v. State , reported in AIR 1959 Madhya Pradesh 46 .

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Page No.# 4/8

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6. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the decisions relied upon by the learned counsel for both the parties and also the impugned order dated 13.12.2024, passed by the learned Trial Court. Also perused the relevant provision of law.

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7. It is to be noted here that section 34 of the Specific Relief Act deals with discretion of court as to declaration of status or right. It read as under:-

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“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:

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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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13 Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not inexistence, and for whom, if in existence, he would be a trustee.

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8. Thus, a cursory perusal of the section reveals that there is a bar in granting declaratory relief where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The word ‘further relief’ in the proviso of the Section appears to be the consequential relief which the plaintiff can pray, besides the declaratory relief.

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9. In the instant case, it appears from the plaint that the respondent, as plaintiff, has already prayed for consequential relief(s). Now, what left to be seen is whether on this count alone the plaint can be rejected.

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10. It appears that the learned Trial Court has dismissed the petition on the ground that the issue raised by the petitioner is to be considered on merit and it would not be

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within realm of what Order VII Rule 11 CPC postulates. It also appears that the learned Trial Court has relied upon a decision of Hon'ble Supreme Court in the case of Gurdev Singh (supra) . Notably, in the case of Gurdev Singh (supra) , Hon'ble Supreme Court has held as under:

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“ 1. The application preferred by the petitioner to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) has been dismissed by the Trial Court which has been confirmed by the High Court. It is the case on behalf of the petitioner that the plaintiff is not entitled to any relief in the suit. The aforesaid cannot be a ground to reject the plaint at the threshold in exercise of powers under Order 7, Rule 11 of the CPC. The learned Trial Court has rightly rejected the application under Order 7, Rule 11 of the CPC, which is rightly not interfered with by the High Court. We are in complete agreement with the view taken by the High Court. The Special Leave Petition stands dismissed. ”

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11. A Coordinate Bench of this Court also in the case of Abdul Latif & Ors. (supra), in paragraph No.14, has held that admittedly, there was no prayer for declaration of right and title in the plaint, but there is specific averment that the plaintiff had acquired right, title over the suit land in view of the sale deed executed in 1945, by Sarojini, and her husband Girija Kumar Das. An application under Order 1 Rule 8 CPC was filed in representative capacity seeking permission for instituting the suit for a declaration of right, title, interest and for confirmation of possession against the defendants and for and on behalf of the co-villagers of the two villages having same and similar right, title, interest and possession in the suit land along with the plaintiff and thereafter, this Court has held that there is no illegality or infirmity in the impugned judgment and decree passed by the Court below declaring right, title and possession of the plaintiff. Thereafter, the bench had arrived at a finding that in view of the settled proposition of law there is no illegality or infirmity in the impugned judgment and decree passed by the court below declaring right, title and possession of the plaintiff. In arriving at such a conclusion, the

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bench has also relied upon a decision of Hon'ble Supreme Court in the case of Kedal Lal Seal v. Hari Lal Seal , reported in AIR 1952 SC 47 , wherein it was held as under:-

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“ I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however, clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.”

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12. In the case of Qamarali Wahid Ali (supra) , Madhya Pradesh High Court has in paragraph No.8, held as under:-

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“ 8. The learned Government Advocate pointed out that the plaintiff had not sought any declaration for quashing the order of the dismissal and as such, having failed to claim the main relief, he was not entitled to a decree for arrears of salary. As I have observed earlier, the prayer clause, in the plaint may be defective, but the body of the plaint certainly contained all the necessary facts upon which this Court could grant a relief as may be found necessary.

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At any rate, I hold that the relief of declaration could be implicit in the residuary item of the prayer clause under the description “any other relief”. If the plaintiff is entitled to a relief, it cannot be denied to him upon a hypertechnical view, as is suggested by the learned Government Advocate. ”

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13. In the instant case, it appears from a bare perusal of the plaint that besides making a prayer for a decree of eviction and handing over of possession and for permanent injunction, the respondent herein as plaintiff has also prayed for any other relief to which he is entitled to under clause (d) of the prayer portion of the plaint. And as

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held by the Madhya Pradesh High Court in the case of Qamarali Wahid Ali (supra) , the relief of declaration could be implicit in the said prayer under the description “any other relief”.

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14. Thus, having considered the submission of learned counsel for both the parties and also considering the facts and circumstances on the record and also applying the law, laid down by Hon’ble Supreme Court and a co-ordinate bench of this Court and also by the Madhya Pradesh High Court, as discussed herein above, to the facts and circumstances of the case in hand, this Court is of the view that the impugned order, so passed by the learned Trial Court, rejecting the application, so filed under Order VII Rule 11 of the CPC, for rejection of the plain, suffers from no infirmity or illegality requiring any interference of this Court. As held by the learned Trial court the suit of the plaintiff cannot be dismissed and the issue raised by the petitioner is to be considered on merit and it would not be within the realm of what Order VII Rule 11 CPC postulates. The plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11 CPC.

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15. Yet, for another reason, the petition filed under Order VII Rule 11 of the Code of Civil Procedure is not maintainable. While dealing with the issue of rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, Hon’ble Supreme Court in the case of Kum. Geetha, D/o Late Krishna & Ors. v. Nanjundaswamy & Ors. [Civil Appeal No.7413/2023, arising out of SLP(C) No.8147/2016], has laid down the test to be applied while dealing with an application under Order VII Rule 11 CPC in paragraph No.7 as under:-

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“ 7. In simple terms, the true test is first to read the plaint meaningfully and as a whole, taking it to be true. Upon such reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 of the CPC must fail. To put it negatively, where it does not disclose a cause of action, the plaint shall be rejected. ”

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16. In the instant case, it is not the case of the petitioner that the plaint does not disclose any cause of action and having perused the plaint of the Title Suit No.03/2016, this Court find that the same discloses cause of action and as such, the question of

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rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure as held by the Hon’ble Supreme Court in the case of Kum. Geetha (supra) does not arise.

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17. Accordingly, this civil revision petition stands dismissed leaving the parties to bear their own cost. Interim stay, if granted earlier, stands vacated.

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JUDGE

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Chandra Kanta Saikia v. Bhabakanta Borah

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Chandra Kanta Saikia v. Bhabakanta Borah

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