Mohd. Sultan Wani vs Qasim Ali and Another

Mian Jalal-Ud-Din, J.—The plaintiff applicant brought a suit for permanent injunction against the defendants respondents in the court of City

Munsiff Srinagar. He averred that he is the tenant in a shop owned by the defendant No. 1. Defendants 1 and 2 have been interfering with his

possession and have been indulging in other acts of malfeasance to pressurise the plaintiff to vacate the shop. He, therefore, sought decree for

permanent injunction against the defendants and also for mandatory injunction for compelling the defendants to reconstruct the demolished wall.

The defendants in their written statement denied the plaintiff's claim and pleaded that the plaintiff had already surrendered the possession of the

shop of his own accord as that shop was in a dilapidated condition and there were huge amounts of rent outstanding against the plaintiff.

On the application of' the plaintiff the court passed an interim injunction against the defendants temporarily restraining them from interfering with

the possession of the plaintiff. During the progress of the trial of the case the plaintiff moved an application for contempt in the trial court averring

therein that the defendant forcibly turned out the plaintiff from the shop and thus violated the interim order of the court. On this application the court

invited objections of the defendants. Proceedings however, continued, The plaintiff did not seek any amendment of the plaint because of the

subsequent event alleged by him. On conclusion of the trial in the main case the court found that the plea of the defendants that the plaintiff had

surrendered the possession of the shop was not established. It further found that the plaintiff was in the possession at the time of institution of the

suit, the possession of the plaintiff was disturbed during the pendency of the suit, the order of temporary injunction notwithstanding. The trial court,

instead of passing the decree in terms of the reliefs sought for passed a decree for possession of the shop in favour of the plaintiff. On appeal filed

before the Sub Judge (C.J.M.) the learned appellate court on appraisal of the evidence came to the conclusion that the plaintiff had not established

that he was in possession of the suit property at the time of the institution of the suit. Further, the court held that the relief of possession granted by

the trial court was outside the pleadings of the parties. The trial court had erred in giving the relief which was not at all asked for by the plaintiff. No

amendment was sought by the plaintiff in this behalf. For these reasons the appeal was allowed and the judgment and decree of the trial court were

set aside. Aggrieved by this judgment and decree of the first appellate court the plaintiff has come up in revision before this Court.

Shri J.N. Langer appearing for the petitioner has submitted that the first appellate court has misconstrued the provisions of Order 7, Rule 7 of

the CPC which confer power on the court to grant such relief as it may think just to grant. It is not necessary for the plaintiff to ask for general or

other relief which the court could in the circumstances of the case grant to the plaintiff. Because the defendant, had violated the order of interim

injunction issued by the court against him during the pendency of the suit and by doing this the defendant had disturbed the status quo ante in

respect of the suit property, therefore the court could take notice of the subsequent event and grant appropriate relief of possession to the plaintiff

in order to secure the ends of justice.

On merits it is submitted that there was cogent evidence on the record to establish the fact that the plaintiff was in de facto possession of the suit

property at the time of the institution of the suit and the story put forth by the defendant that the plaintiff had himself vacated the shop was a cock

and bull story which defendant had not established by any evidence whatsoever. The first appellate court had not appreciated the evidence in its

right perspective. The trial court had the chance to mark the demeanour of the witnesses and to know their worth. In view of all this the plaintiff, it

is submitted, is entitled to claim decree for possession.

Mr. Z.A. Shah appearing for the defendants respondents has, on the other hand, submitted that Order 7 Rule 7 of the CPC could not be relied

upon by the plaintiffs in-as-much as that order did not in general terms authorise the Court to pass a decree for possession in a suit for permanent

injunction. In the present case the decree of the trial court was passed when the defendants had no chance to meet the case of the plaintiff in

respect of his claim for possession. The plaintiff never sought any amendment of his plaint by seeking consequential relief of possession. The court

could not on its own grant that relief to the plaintiff in the absence of any application for amendment. It is also pointed out that the trial court had

erred in pressing into service the evidence recorded in the application for contempt in the main suit while adjudging the claim of the plaintiff

applicant. The trial court bad relied upon the evidence recorded in the application for contempt, That could not be done as it was not legally

permissible to act on the evidence tendered in another miscellaneous proceeding.

Order 7 Rule 7 of the CPC provides that the plaintiff shall state specifically the relief which the plaintiff claims either simply or in the alternative

and it shall not be necessary to ask for general or other relief which may always be given as the court may deem just to the same extent as if it had

been asked for. In (1898) 25 Ind App 195 (PC) the Privy Council observed that the general rule is that the plaintiff cannot be entitled to relief

upon facts and documents not stated or referred to by him in his pleadings. Relief can be granted in such cases on the basis of such matters. The

ratio of this authority is that no relief can be granted by the court to a party upon extraneous consideration or facts not disclosed in the pleadings.

Therefore Rule 7 is to be construed in that light. The general or other relief envisaged in Rule 7 means an ancillary relief which if granted should not

be inconsistent with the case set up by the plaintiff and the relief must be based on the same cause of action as the relief claimed in the suit. Thus

the general or the other relief granted by the court should not be relief of different description from the one claimed in the plaint. In no case should

the defendant be taken by surprise. It is true that the court can take notice of subsequent events but in that case the plaintiff must invite attention of

the court to the altered circumstances and ask for appropriate relief. Where in a suit for declaration in which the plaintiff claims a right to a legal

character in respect of certain property and in the course of litigation he is dispossessed, the court cannot, if the right claimed is adjudged in his

favour, ipso facto on its own grant relief of possession in his favour without asking him to amend the plaint and add consequential relief in the plaint

as the granting of such a relief would be inconsistent with the pleadings of the parties and would also be inconsistent with the averments as

disclosed in the pleadings of parties, In the same way where a plaintiff in a suit for permanent injunction is dispossessed by the defendant during the

pendency of the suit, the court can no doubt take notice of this subsequent event but it has no power under Order 7 Rule 7 to grant relief of

possession to the plaintiff without notice to the defendant and without asking the plaintiff to amend the plaint. It is to meet such situations that Order

6 Rule 17 has been engrafted in the CPC to enable a party to seek amendment of its pleadings. That Rule does empower the court to allow either

party to alter or amend its plaint or written statement in such manner and in such terms as may be just and all such amendments can be made as

may be necessary for the purpose of determining the real questions in controversy between the parties. This can be done at any stage of the

proceedings. In my opinion therefore the proper course for the plaintiff was to apply for amendment, seek consequential relief. The Court could the

by raising an appropriate issue in the case go into this question which was vital for the decision of the case.

The State of Bihar Vs. Usha Devi and Another, , Kanakku Kumara Pillai Thanu Pillai Vs. Mathevan Mathevan of Aravamkadu Karakkattu

Madathu Veedu and Another, and Sayu Mohammed Abdulla Vs. Neelakantan Krishnan and Others, relied upon by the counsel for the petitioner

can have little application to the facts of the present case. The authorities are distinguishable. On the other hand it has been laid down in Trojan and

Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, :

The decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an

amendment of the plaint the Court was not entitled to grant the relief not asked for.

For all what has been stated above the learned Munsiff was not, therefore, justified in passing decree for possession in the case.

The result is that the revision is dismissed and the judgment and decree of the first appellate court is upheld. I, however, make no order as to

costs.