Rama Ch. Mohapatra vs Narayan Ch. Pradhan and Others

Indrajit Mahanty, J.—The present writ application has been filed by the Petitioner-Rama Ch. Mohapatra seeking to challenge the Order Dated 29.8.1992 (Annexure-1) passed by the Learned Munsif, Kendrapara in T.S. No. 127 of 1983 allowing the petition filed by the Defendants under Order 14, Rule-2 CPC & directing the Plaintiff to amend the plaint & to insert the prayer of declaration of title & also to pay the necessary Court fee thereon. The Petitioner further seeks to challenge the order passed by the Learned District Judge, Cuttack rejecting the Petitioners challenge to the aforesaid order in Civil Revision No. 185 of 1992 vide Order Dated 20.4.1993 (Annexure-2).

Learned Counsel for the Petitioner vehemently urged that the Plaintiff-Petitioner had filed the suit alleging therein that his father was a settled raiyat of the village where the suit land is situated, i.e. Mouza-Nagpur & that he had been inducted by the ex-proprietor as a tenant with respect to the suit land, & had been put into possession of the tenanted land & that the ex-proprietor had been accepting the rent from him as proprietor till vesting of the estate. Further the case of the Plaintiff-Petitioner is that his tenancy right has already been determined by the Tahasildar, Kendrapara by fixing rent, cess & salami which he had also paid & thereafter, the State has accepted him as recognized tenant over the suit scheduled property. The Plaintiff had further stated that since Defendant Nos. 1 to 4 are trying to dispossess the Plaintiff in collusion with the State functionaries, the Plaintiff had issued notice u/s 80 CPC & thereafter, filed the present suit with a prayer seeking permanent injunction against the Defendants. .

From the record of the case, it appears that the Defendants had filed the written statement denying the assertion made by the Plaintiff & have stated that the suit scheduled property was being put to auction every year by the Gram Panchayat as a "Machhadiha" & the Plaintiff has neither title nor possession over the same. Thereafter, the Defendants filed an application under Order 14 Rule 2 CPC with a prayer to hold a preliminary hearing on the maintainability of the suit. This application came to be considered by the Learned Munsif, Kendrapara & vide Order Dated 29.8.1992, such petition was allowed & the Plaintiff was directed to seek necessary amendment & consequently seek declaration of title within one month from the date of the said order. The Plaintiff-Petitioner being aggrieved by the said order challenged the same before the Court of Learned District Judge, Cuttack in Civil Revision No. 185 of 1992 & vide Order Dated 20.4.1993, the revision stood dismissed by affirming the order of the Munsif. The Petitioner, thereafter filed the present writ application challenging both the orders of the Trial Court as well as the Revisional Court.

Sri Routray, Learned Counsel for the Plaintiff-Petitioner asserted that the Plaintiff was the master of his own suit & the prayer made by the Plaintiff in the plaint seeking "permanent injunction" was permissible in law u/s 34 of the Specific Relief Act, 1963. Apart from the above, Learned Counsel further submitted that the direction of the Trial Court directing Plaintiff to amend the suit & seek for declaration of the title was beyond the scope of Order 14 Rule 2 Code of Civil Procedure

The further contention of the Learned Counsel for the Petitioner is that the prayer for permanent injunction is maintainable & permissible in view of Section 34 of the Specific Relief Act, 1963. No doubt, the said provision permits to file such a suit but the proviso of the aforesaid Section clearly mandates that, no Court shall make any such declaration where the Plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The aforesaid proviso clearly applies to the facts of the present suit & while a suit u/s 34 of the Specific Relief Act, 1963 is maintainable, yet, the discretion is vested in the Court to direct necessary amendment in terms of the said proviso, since no Court can make such declaration of title, if the Plaintiff omits to do so. The said proviso is clearly attracted to the facts of the present case & the contention of the Learned Counsel for the Petitioner is of no avail.

In the light of the submissions advanced by the Learned Counsel for the Plaintiff-Petitioner & on perusing the impugned orders, it is clear that although the Plaintiff has claimed title to the suit property on the basis of the lease, properly granted in favour his father by the ex-landlord & the Defendants claim possession of the said suit property as well as the title on the basis of the lease granted to them by the Gram Panchayat, clearly on the face of the pleadings of the parties, the claim of title has to come up for consideration & the claim by the Plaintiff-Petitioner that the Plaintiff is the "master of his suit" & therefore, could not be called upon to amend the pleadings & seek further declaration of the title which was rejected by the lower Revisional Court.

Learned Counsel for the Plaintiff-Petitioner placed reliance on the judgment of the Hon''ble Supreme Court in the case of Corporation of the City of Bangalore Vs. M. Papaiah and Another, wherein the Hon''ble Supreme Court came to hold that, if the foundation of the claim of the Plaintiff was title, it became necessary for deciding the nature of a suit, the entire plaint has to be read & not merely the relief prayed for.

On a reading of the order of the Revisional Court, plaint & the written statement therefrom, I am of the view that there is no matter of doubt that essentially, the suit had been filed to establish the title of the Plaintiff & on such basis, permanent injunction has been sought for against the Defendants. Therefore, since the prayer in the suit is for perpetual injunction, the Trial Court could not entertain such a suit without a prayer seeking declaration of title. The Learned Trial Court has also referred to the decision of this Court in the case of Kishore Chandra Pati v. The Orissa Road Transport Co. Ltd. and Ors. (1989) 31 OJD 8 (Civil) & in the said Judgment, this Court came to hold that instead of directing dismissal of the suit in the first instance for not seeking relief of declaration of title, the Plaintiff should be called upon to pay the necessary Court fee for making necessary amendment in the plaint seeking relief of declaration of title.

In view of the aforesaid Judgment, the Trial Court instead of dismissing the suit, granted the Plaintiff an opportunity to make necessary amendment in the prayer & consequently to pay the necessary Court fee thereof. Hence, in my considered view, no error whatsoever exists either in the order of the Trial Court or in the order of the Revisional Court, justifying/requiring any interference with the same.

Accordingly, the present writ application has no merit & the same stands dismissed. Interim Order Dated 17.5.1994 passed in Misc. Case No. 7696 of 1993 stands vacated.