Rakesh Singhai vs Arvind Kumar
2023 Latest Caselaw 439 MP

                                                             1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                               ON THE 9 th OF JANUARY, 2023
                                              CIVIL REVISION No. 100 of 2017

                          BETWEEN:-
                          RAKESH SINGHAI, S/O SHRI RAJ KUMAR SINGHAI,
                          AGED ABOUT 45 YEARS, R/O CHANDRASHEKHAR
                          WARD, KHIMLASA ROAD, SAGAR (MADHYA PRADESH)

                                                                                           .....PETITIONER
                          (BY SHRI AVINASH ZARGAR, ADVOCATE)

                          AND
                          1.    ARVIND KUMAR (DEAD) THROUGH LRS.:
                                SMT. BHARTI JAIN WD/O LATE ARVIND KUMAR
                          A.    JAIN, AGED ABOUT 60 YEARS,

                                ANSHUL JAIN S/O LATE ARVIND KUMAR JAIN,
                                AGED ABOUT 40 YEARS,
                          B.
                                ANUL JAIN S/O LATE ARVIND KUMAR JAIN,
                                AGED ABOUT 37 YEARS,

                          C.    AMUL JAIN S/O LATE ARVIND KUMAR JAIN,
                                AGED ABOUT 35 YEARS,
                                ALL R/O HOME COMFORT, GAUR MARUTI
                          D.    SAGAR, DISTRICT SAGAR (M.P.)

                          2.    STATE OF MADHYA PRADESH, THROUGH
                                COLLECTOR, SAGAR, DISTRICT SAGAR (MADHYA
                                PRADESH)

                                                                                        .....RESPONDENTS
                          (BY SHRI ABHIJIT BHOWMIK, ADVOCATE)

                                Th is revision coming on for hearing this day, th e court passed the
                          following:
                                                              ORDER

This civil revision has been preferred by the applicant/plaintiff challenging Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 1/13/2023 5:20:50 PM

the order dated 31/01/2017 passed by Civil Judge Class- I, Bina, District Sagar in Civil Suit No.163-A/2010, whereby application under Order 7 Rule 11 CPC of the plaintiff filed for rejection of the counter claim of the defendant 1, for want of relief of possession, has been dismissed.

Learned counsel for the applicant submits that in the suit filed by the plaintiff/applicant for declaration of title and permanent injunction, the defendant 1 has filed counter claim but despite he being out of possession, has not claimed relief of possession, therefore, his counter claim is not maintainable and is barred in view of Section 34 of the Specific Relief Act and thus, the same is liable to be rejected under Order 7 Rule 11(d) CPC. In support of his

contentions, he placed reliance on the decisions of this Court in the case of Jai Vilas Parisar and Anr. vs. Alok Kumar Hardatt & Anr. 2016 (2) Cur.C.C. 396 and of Delhi High Court in the case of Oval Investment P. Ltd. and Ors vs. Indiabulls Financial Services Ltd. and others 2009 165 DLT

Learned counsel for the respondents supports the impugned order. Heard learned counsel for the parties and perused the record. It is apparent fact on record that the plaintiff has instituted the suit for declaration of title and permanent injunction, in which the defendant 1 has filed counter claim seeking declaration to the effect that the mutation of the plaintiff is illegal & contrary to law and mutation of the defendant 1 be done, further, the consequential relief of permanent injunction restraining the plaintiff from taking possession and alienation has been prayed.

The plaintiff’s case as per para 10 of the application under order 7 rule 11 CPC is that the counter claim of the defendant 1 is for declaration of title and permanent injunction, whereas the defendant 1 is not in possession of the Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 1/13/2023 5:20:50 PM

land and without seeking possession, the relief of declaration and injunction is barred by law, therefore, counter claim is liable to be rejected being barred by law.

While considering the bar contained in section 34 of the Specific Relief Act, the supreme court has in the case of Akkamma & Ors. Vs. Vemavathi & Ors. (2021) 14 SCALE 293 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 Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 1/13/2023 5:20:50 PM

and the suit is liable to be dismissed as not maintainable".

In view of the aforesaid decision in the case of Akkamma & Ors. (supra), it cannot be said that the counter claim filed for declaration and permanent injunction is not maintainable for want of relief of possession. As such the decisions cited on behalf of the applicant/plaintiff do not come to his rescue and do not give any help to him and resultantly counter claim cannot be rejected under Order 7 Rule 11(d) CPC for want of relief of possession.

Accordingly, declining interference in the impugned order, the civil revision deserves to be and is hereby dismissed.

Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE RS

Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 1/13/2023 5:20:50 PM