The Himachal Pradesh High Court dismissed a petition, filed under Article 227 of the Constitution of India, for setting aside an order dated 11.11.2019, passed by an Additional District Judge, whereby an application filed by the petitioners-defendants under Order 7 Rule 11 (d) of Code of Civil Procedure was rejected. The Court observed that Section 34 provides that no such declaration shall be made by the Court for omission on the part of the respondents-plaintiffs to seek further relief other than a mere declaration of title which could have been sought by the respondents-plaintiffs.
Brief Facts:
The respondents-plaintiffs are claiming them owners in possession of the suit property. It has been contended on behalf of the petitioners-defendants that they are married at different places and residing with their respective families-in-laws and, therefore, their claim of possession is false, and as they have failed to seek relief for possession, their suit for mere declaration is not maintainable, because, for omission to seek such further relief, they are falling within the scope of proviso of Section 34 of the Act.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that respondents-plaintiffs have never had possession of the suit property and, therefore, prayer to declare them owner in possession is devoid of merit. Further, it has been argued that the suit was for declaration only but without consequential relief seeking possession of the suit property and, therefore, the suit is barred by provisions of Section 34 of the Specific Relief Act, 1963, and thus the plaint is liable to be rejected under Order 7 Rule 11 (d) CPC.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that averments made in the application, filed for rejecting the plaint, are to be adjudicated and decided on merit in the main suit, and, thus, the application is not maintainable at this stage.
Observations of the Court:
The Court noted that whether a person is in possession or not, actual, deemed, or constructive, is a fact to be established or dismantled by the parties by leading evidence to be appreciated by the Trial Court at the conclusion of the trial. It is not a fact that can be elucidated or extracted from the averments of the plaint and documents filed therewith. The Court said that the suit filed by the respondents-plaintiffs is not a suit merely for declaration, but consequential relief, as considered necessary and fit, including a suit for permanent prohibitory injunction and damages, has also been sought.
The Court observed that Section 34 of the Act does not mandate that declaratory suit without consequential relief which respondents-plaintiffs being able to seek have omitted to do so, is not maintainable at all. Rather it provides that no such declaration shall be made by the Court for omission on the part of the respondents-plaintiffs to seek further relief other than a mere declaration of title which could have been sought by the respondents-plaintiffs.
The decision of the Court:
The Himachal Pradesh High Court, dismissing the petition, held that there is no illegality, irregularity, judicial impropriety, or perversity in the impugned order.
Case Title: Sudhakar Sharma & Ors. v Nandini Mishra & Ors.
Coram: Hon’ble Justice Vivek Singh Thakur
Case no.: CMPMO No. 387 of 2020
Advocate for the Petitioner: Mr. Sameer Jain
Advocate for the Respondents: Mr. Sudhir Thakur
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