Suit Barred By Proviso To S.34 SRA Should Not Be Dismissed Without Opportunity To Amend Plaint & Seek Consequential Relief: MP High Court

Justice Pranay Verma further observed that the Plaintiff ought to be given an opportunity to amend the plaint and claim consequential relief-

Thus, it has been the consistent view that where plaintiff who is able to sue for further relief omits to do so and proviso to Section 42 of the Specific Relief Act, 1963 becomes applicable, the Court should not dismiss the suit straight-away but should afford an opportunity to the plaintiff to amend his plaint to claim the consequential relief. It is then for the plaintiff to amend the plaint and claim the consequential relief or to face the possibility of the suit being dismissed. Even if after being afforded such an opportunity the plaintiff fails to avail the same then his suit has to be dismissed. In any case the suit should not be dismissed immediately upon recording of finding that the same is barred by the proviso to Section 34 of the Specific Relief Act.

Facts of the case were that the Appellant/Plaintiff had instituted a suit against the Respondents/Defendants. He had sought for declaration of title to the suit land and for permanent injunction, thereby restraining the Defendants from alienating the same.

While upholding his title to the suit land, the civil court noted that the Appellant/Plaintiff was not having possession over the same. Furthermore, he had not sought for the relief of possession. Therefore, the trial court held that his suit was hit by proviso to Section 34 of the Act as he did not claim for a better relief available to him. On this said ground, his suit was dismissed. Aggrieved, the Appellant/Plaintiff preferred an appeal before the lower appellate court.

The lower appellate court dismissed the appeal on the ground that the Appellant/Plaintiff did not seek leave to amend his pleadings either during the trial or at the stage of appeal. Hence, the courts could not grant him such an opportunity because it was not for the courts to do so prior to dismissing the suit. Challenging the dismissal, the Appellant moved the Court.

The Appellant argued before the High Court that the courts below had committed a gross error of law. It was submitted that it was incumbent upon the trial court to have afforded him an opportunity to amend his plaint to claim the relief of possession. It was only upon his failure to avail such an opportunity that his suit could have been dismissed. It was further pointed out that in his appeal before the Court, he had had filed an application seeking amendment of the plaint to claim relief of possession. The Appellant asserted that his application under OVI R17 CPC deserved to allowed and the matter be remanded back to the trial court to decide it afresh.

Per contra, the Respondents argued that the Appellant did not move any application for amendment of pleadings before the lower courts. It was also contended that it was not the duty of the courts below to have given the Appellant the opportunity to amend the plaint; rather, it was his duty to claim the appropriate relief. It was, thus, submitted that the Appellant could not later turn around and blame the courts for his own faults.

Examining the submissions of parties and documents on record, the Court concurred with the contentions put forth by the Appellant/Plaintiff. The Court opined that the trial court had committed a gross illegality in dismissing the suit without granting the Appellant the opportunity to amend his plaint-

The trial Court has hence committed gross illegality in dismissing the claim of plaintiff upon holding that the same is barred by proviso to Section 34 of the Specific Relief Act, 1963 as he has not claimed relief of possession despite not being in possession. The appellate Court has also failed to consider this aspect of the matter in its true perspective. Thus, I am of the opinion that plaintiff ought to be afforded an opportunity to amend his plaint to claim the consequential relief.

With the aforesaid observations, the decisions of the courts below were set aside. The court remanded the matter back to the trial court along with the application moved by the Appellant under OVI R17 CPC and directed that the same be decided in accordance with law. Accordingly, the appeal was allowed.