Madhya Pradesh High Court
Nihal Singh vs Savitri Bai on 17 October, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 17th OF OCTOBER, 2023
MISC. APPEAL No. 4516 of 2019
BETWEEN:-
NIHAL SINGH S/O SHRI HARNAM SINGH,
AGED ABOUT 37 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE
JAGTHAR, TEHSIL SIRONJ, DISTRICT
VIDISHA (MADHYA PRADESH)
........APPELLANT
(BY SHRI SAMEER KUMAR SHRIVASTAVA -
ADVOCATE )
AND
1. SAVITRI BAI D/O SMT. IMRAT BAI W/O
SHRI SUMER SINGH DANGI, AGED
ABOUT 45 YEARS, R/O VILLAGE BEHANE,
TEHSIL MUNGAWALI, DISTRICT
ASHOKNAGAR (MADHYA PRADESH)
2. MEERA BAI D/O SMT. IMRAT BAI W/O
PRATAP DANGI, AGED ABOUT 43 YEARS,
R/O VILLAGE BEHANE, TEHSIL
MUNGAWALI, DISTRICT ASHOKNAGAR
(MADHYA PRADESH)
3. SHEELA BAI D/O SMT. IMRAT BAI W/O
JAGANNATH DANGI, AGED ABOUT 41
YEARS, R/O VILLAGE BAREKHEDI,
TEHSIL KURWAI, DISTRICT VIDISHA
(MADHYA PRADESH)
4. SUKHWATI BAI D/O SMT. IMRAT BAI W/O
MAJJU, AGED ABOUT 39 YEARS, R/O
VILLAGE HANSALKHEDI, TEHSIL
BEENA, DISTRICT SAGAR (MADHYA
PRADESH)
5. SUSHILA BAI D/O SMT. IMRAT BAI W/O
CHANDRABHAN SINGH, AGED ABOUT 37
YEARS, R/O VILLAGE JOAP, TEHSIL
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
2
BEENA, DISTRICT SAGAR (MADHYA
PRADESH)
6. SHARDA BAI D/O SMT. IMRAT BAI W/O
KARAN SINGH DANGI, AGED ABOUT 35
YEARS, R/O VILLAGE JOAP, TEHSIL
BEENA (MADHYA PRADESH)
7. COLLECTOR SINGH S/O MEHTAB SINGH,
AGED ABOUT 40 YEARS, R/O VILLAGE
JAGTHAR TEHSIL SIRONJ, DISTRICT
VIDISHA (MADHYA PRADESH)
8. DESHRAJ SINGH S/O MEHTAB SINGH,
AGED ABOUT 30 YEARS, R/O VILLAGE
JAGTHAR, TEHSIL SIRONJ, DISTRICT
VIDISHA (MADHYA PRADESH)
9. KHOOB SINGH S/O ROOP SINGH DANGI,
AGED ABOUT 50 YEARS, R/O VILL
JAGTHAR, TEHSIL SIRONJ, DISTRICT
VIDISHA (MADHYA PRADESH)
10. NARAYAN SINGH S/O ROOP SINGH
DANGI, AGED ABOUT 48 YEARS, R/O
VILLAGE JAGTHAR, TEHSIL SIRONJ,
DISTRICT VIDISHA (MADHYA PRADESH)
........RESPONDENTS
(BY SHRI R.P. RATHI - ADVOCATE)
----------------------------------------------------------------------------------------
This appeal coming on for hearing this day, the Court passed the
following:
---------------------------------------------------------------------------------------
ORDER
This Misc. Appeal Order 43 Rule 1(u) of CPC has been filed
against the order dated 18.07.2019 passed by First Additional District
Judge Sironj, District Vidisha (M.P.) in Regular Civil Appeal No.5-
A/2017 whereby, the judgment and decree passed dated, 30.11.2016
passed by Civil Judge Class-II, Sironj District Vidisha (M.P.) has been
set aside and the matter has been remanded back for giving an
opportunity to plaintiff to amend the plaint and seek the recovery of
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
possession.
2. The facts in brief to decide the present appeal are that plaintiffs -
Imrat Bai, Collector Singh and Dehsraj Singh filed a civil suit for
declaration of title and possession in respect to disputed land bearing
survey no.400 area 1.063 hectare, min 400/2 area 0.532 hectare before
the Civil Judge, Class-II Sironj, District Vidisha (M.P.) [hereinafter
referred to as ''the trial Court'']. The learned trial Court dismissed the
suit filed by the plaintiffs. Against the impugned judgment and decree
dated, 30.11.2016 passed by trial Court, a Regular Civil Appeal
No.5A/2017 was preferred before First Additional District Judge Sironj,
District Vidisha (M.P.) [hereinafter referred to as '' the first appellate
Court '']. The first appellate Court after hearing the parties remanded the
matter back by impugned order on the ground that under the proviso of
Section 22 (2) of Specific Relief Act, the plaintiffs should have been
granted an opportunity for amendment in plaint, against which the
present appeal has been filed.
3. Learned counsel for the appellant argued that the order impugned
passed by first appellate Court is against the settled principles of law as
well as material available on record, therefore, the same is liable to be
set-aside. It is further argued that learned first appellate Court has failed
to consider that the possession of respondents/plaintiffs has not been
proved in civil suit and the possession of appellant/defendant was
admitted by the plaintiff herself. Further argument is that there was no
prayer on behalf of respondents/plaintiffs for amendment in suit,
however, learned first appellate Court granted the relief which is barred
by limitation and cannot be granted in the light of the proviso of Order 6
Rule 17 of CPC. Learned first appellate Court has also passed the
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
impugned judgment against the provision of Order 41 Rule 23-A of
CPC, therefore, the impugned order be set aside.
4. On the other hand, learned counsel for the respondents argued that
impugned judgment is in accordance with settled principles of law
because the Court should grant an opportunity to plaintiffs to amend the
suit before rejecting it, therefore, the present appeal be dismissed.
5. Heard learned counsel for the rival parties and perused the
material available on record.
6. On perusal of record it is crystal clear that present
appellant/defendant filed written statement and specifically pleaded that
the plaintiffs/respondents were having possession over the disputed land
and without seeking the relief of possession, the civil suit is not
maintainable. It is further pleaded by appellant/defendant that he is
having right in the disputed property. The learned trial Court after
recording of evidence in which the possession of appellant/defendant
was admitted by plaintiffs, held that since the plaintiffs have not sought
any relief of recovery of possession and in view of the admission of
plaintiffs that defendant is in possession of the property prior to
institution of the suit, the civil suit is not maintainable in view of the
proviso to Section 34 of Specific Relief Act. It is apparent that
amendment was not sought for by the respondents/plaintiffs before the
learned Courts below.
7. The first appellate Court has passed the impugned order by citing
the proviso of Section 22 of Specific Relief Act which reads as under;
22. Power to grant relief for possession, partition, refund of
earnest money, etc.--
(1) Notwithstanding anything to the contrary contained in the
Code of Civil Procedure, 1908 (5 of 1908), any person suing
for the specific performance of a contract for the transfer of
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
immovable property may, in an appropriate case, ask for--
(a) possession, or partition and separate possession, of
the property, in addition to such performance; or
(b) any other relief to which he may be entitled,
including the refund of any earnest money or
deposit paid or 1[made by] him, in case his claim
for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1)
shall be granted by the court unless it has been specifically
claimed:
Provided that where the plaintiff has not claimed
any such relief in the plaint, the court shall, at any
stage of the proceeding, allow him to amend the
plaint on such terms as may be just for including a
claim for such relief.
(3) The power of the court to grant relief under clause (b) of
sub-section (1) shall be without prejudice to its powers to
award compensation under section 21.
8. On plain reading of Section 22 of Specific Relief Act indicates
that this provision is applicable for the specific performance of contract
for the transfer of immovable property. In this case, suit is not filed for
specific performance of contract, but is filed for declaration of title and,
therefore, the learned first appellate Court has committed illegality by
applying the proviso of sub-Section 2 of Section 22 of Specific Relief
Act.
9. In the case at hand, it is apparent that the appellant/defendant
from the very beginning claimed to have possession over disputed land
and pleaded that the plaintiffs/respondents are not in possession,
therefore, the suit is not maintainable under the proviso of Section 34 of
Specific Relief Act.
10. The Apex Court in the case of Union of India Vs. Ibrahim
Uddin [(2012) 8 SCC 148]; held that if relief of recovery of possession
has not been asked for, then the suit is required to be dismissed. Hon'ble
Apex Court nowhere has held that an opportunity should be given to
cure the lacuna. Once the suit is filed without claiming consequential
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
relief then the suit is required to be dismissed.
11. It is also apparent that impugned order of remand was passed by
learned first appellate Court against the provision of Order 41 Rule
23(A) of CPC which reads as under;
[23A. Remand in other cases.-
Where the Court from whose decree an appeal is preferred has
disposed of the case otherwise than on a preliminary point, and
the decree is reversed in appeal and a re-trial is considered
necessary, the Appellate Court shall have the same powers as it
has under rule 23.]
12. However in the case at hand, the learned first appellate Court has
not given any finding that re-trial is necessary. Unless and until there is
a finding that re-trial is necessary, the case cannot be remanded back.
13. The Apex Court in the case of Municipal Corporation,
Hyderabad Vs. Sunder Singh [(2008) 8 SCC 485]; held in order to
exercise the power of remand under Order 41 Rule 23A of CPC, there
has to be a specific finding of the Court that a retrial is necessary.
14. Power to seek amendment in plaint is governed by the provisions
contained in Order 6 Rule 17 of CPC. If any specific pleading or relief
has not been asked for, then the substantive provision for seeking the
relief is to ask for amendment under this provision. The provision under
Order 6 Rule 17 of CPC is not absolute rather, it comes with a proviso.
15. For ready reference and convenience, Order 6 Rule 17 of CPC
reads as under;
"[17. Amendment of pleadings.- The Court may at any stage
of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just,
and all such amendments shall be made as may be necessary
for the purpose of determining the real questions in controversy
between the parties:
Provided that no application for amendment shall be
allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of the due diligence, the
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
party could not have raised the matter before commencement
of trial.
16. By the above mentioned provision, it is clear that the relief for
amendment in pleadings cannot be asked at a later stage when the relief
was available earlier and not asked for. In this case, no application
seeking amendment in plaint was filed. Despite this fact, the learned
lower appellate Court permitted the respondent/plaintiff to amend the
plaint which is per se illegal.
17. Learned first appellate Court has also not considered the fact that
the plaintiff is not in possession of the property even prior to the filing
of the suit, therefore, the relief of amendment is now barred by time. It
is settled principles of law that a relief which is barred by time cannot
be granted.
18. Learned counsel for the respondents cited the decision of Apex
Court in the case of Mst. Rukhmabai Vs. Lala Laxminarayan and
Ors. [AIR 1960 SC 335] wherein, it is held that an opportunity should
be given to amend the plaint before dismissing it on account of non
compliance of claiming consequential relief of recovery of possession.
However, this judgment of Hon'ble Apex Court is not applicable since
in that judgment the objection of suit being barred under proviso to
Section 42 of Specific Relief Act, 1877 was raised before the High
Court for the first time in arguments. Therefore, Hon'ble Apex Court
held that since for the first time the point of suit being barred for non
compliance of claiming relief of recovery of possession, therefore, an
opportunity should be given. However, in this case, since inception, a
specific objection was raised that suit is not maintainable as it was filed
without claiming the relief of possession, specific issue as regards to
possession was also framed which was decided against the plaintiffs.
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
Therefore, the instant judgment is not applicable to the present facts.
19. Learned counsel for the respondents further cited the case of
Kalyan Singh Vs. Vakilsingh [AIR 1990 MP 295] wherein, at para-20
this Court has held that an opportunity should be granted to amend the
plaint before dismissing the same. Even this judgment does not lay
down the said preposition of law in absolute terms. This judgment says
that in the event of any subsequent fact enabling the plaintiff to claim
consequential relief happened, then in that condition the suit cannot be
dismissed without granting the opportunity to amend the plaint. Para-20
reads as under;
20. The legal position that flows from the above said
authorities is as under :
(i) Further relief than a mere declaration referred to in the
proviso to Section 34 of Specific Relief Act, 1963
contemplates the entitlement of the plaintiff as obtaining on the
date of the suit;
(ii) Entitlement of the plaintiff enabling seeking further relief
based on an event occurring during the pendency of the suit
would not render the suit not maintainable;
(iii) It is the choice of the plaintiff to rest content by a mere
decree for declaration in that suit and then to sue for further
relief by bringing an independent suit subject to Law of
Limitation or to pray for further relief by making an
amendment in the plaint in that suit itself;
(iv) Bar enacted by the proviso does not automatically entail
dismissal of the suit but the plaintiff must be afforded an
opportunity of amending the plaint if so desired;
(v) Further relief cannot be granted to the plaintiff without the
same having been specifically asked for.
20. On bare perusal of Clause - (ii),(iii) & (v) it reflects that in the
event of any subsequent fact happening, which entitles a person to claim
consequential relief, then an opportunity should be granted to amend the
plaint. Condition No.(v) itself clarifies that no such consequential relief
can be granted unless it is asked for. In the case at hand, admittedly no
application for amendment in plaint has been filed and, therefore, the
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
first appellate Court was having no jurisdiction to allow the plaintiffs to
claim the consequential relief without even asking for the same.
21. In view of the aforesaid discussion, the impugned order of remand
is found to be against the settled principles of law and perverse.
22. Consequently, the present appeal is allowed and the impugned
judgment dated 18.07.2019 passed by First Additional District Judge,
Sironj, District Vidisha (M.P.) in Civil Appeal No.5-A/2017 is found be
against the settled principles of law and the same is hereby set aside.
Learned first appellate Court is directed to decided the appeal on merits.
23. Registry is directed to immediately send back the record of the
trial Court alongwith the copy of this Order.
(SUNITA YADAV )
JUDGE
Vpn/-
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 19-10-2023
05:02:39 PM
