[Specific Relief Act] Opportunity To Amend Must Be Given Before Dismissing Suit U/S 34 Proviso: Karnataka High Court
The Karnataka High Court has held that before dismissing a suit under the proviso to Section 34 of the Specific Relief Act, 1963 for want of appropriate consequential relief, the Court must afford the plaintiff an opportunity to amend the plaint or, in deserving cases, mould the relief. The Court observed that the proviso is intended to avoid multiplicity of litigation and not to defeat substantive rights on technical grounds, and recommended that Parliament revisit the Law Commission's suggestion to amend the provision to resolve continuing interpretational controversy.
Justice Anant Ramanath Hegde was hearing a Regular Second Appeal arising from a suit for declaration of title and permanent injunction in respect of immovable property. The Trial Court had dismissed the suit, whereas the Appellate Court reversed the decree and granted a declaration and injunction in favour of the plaintiffs. The defendants preferred the second appeal, contending that the suit was barred under the proviso to Section 34 as the plaintiffs, though not in possession, had failed to seek the consequential relief of possession and had instead sought only declaration and injunction.
On the issue of title, the Court found that since no registered conveyance existed in favour of the defendants' predecessor, and the plaintiffs' title by inheritance stood admitted in evidence, the Court held that the plaintiffs had established ownership. The Court also concluded that the defendants were in possession of a portion of the property without title.
Interpreting Section 34 of the SRA, the Court held that the proviso does not mandate automatic dismissal where consequential relief is omitted. Instead, the Court must first grant an opportunity to amend the plaint. The plea under Section 34 must ordinarily be raised in the written statement; if not raised, it cannot be permitted to be urged for the first time in appeal. Even where such a plea is available, the Court may mould the relief in appropriate cases, subject to payment of an additional court fee, if the evidence unmistakably establishes entitlement.
“If appropriate consequential relief as required under Section 34 of the Act, 1963 is not sought along with the relief of declaration, the Court has to give opportunity to the plaintiff to amend the plaint… if the evidence on record makes an unbeatable case for the plaintiff…, the Court can mould the relief and grant appropriate consequential relief…,” the Court observed.
However, in the facts of the case, the Court declined to mould relief by directly granting possession. It found that the plaintiffs had suppressed the fact of filing a separate suit for possession while simultaneously asserting possession in appeal, thereby subjecting the defendants to multiple proceedings.
Accordingly, the appeal was allowed in part. The decree of declaration in favour of the plaintiffs was confirmed. Costs of Rs. 50,000 were also imposed on the plaintiffs for suppressing material facts.
Before concluding, the Court highlighted that the proviso to Section 34 continues to generate technical dismissals of substantive claims. Referring to the 9th Law Commission Report (1958), which had recommended deletion of the proviso to Section 42 of the Specific Relief Act, 1877 (pari materia with Section 34 of the 1963 Act), the Court suggested that implementing the recommendation may resolve the ongoing controversy and ensure that substantive justice prevails over procedural technicality.
Case Title: Taj Parveen & Anr. v. Ezazulla Shariff & Ors. [REGULAR SECOND APPEAL NO. 1657 OF 2013 (DEC/INJ)]