Regular Second Appeal No. 3169 of 1985 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3169 of 1985 Date of decision: 25.08.2011 Ballabgarh Coop. Marketing Society ..... Appellant. Versus Haryana Coop. Supply & Marketing Federation ..... Respondent. CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present:- Mr. Gopi Chand, Advocate for the appellant. Mr. H.S. Gill, Sr. Advocate with Mr. Manuj Nagrath, Advocate for the respondent. VIJENDER SINGH MALIK, J. The plaintiff is in appeal before this court against the judgment of learned Additional District Judge(I), Faridabad dated 25.07.1985. The plaintiff-appellant had filed a suit for declaration to the effect that sale deed dated 01.02.1980 executed by Ravinder Mittal in respect of a plot measuring 500 square yards, situated in khasra no. 78 & 20 near Civil Hospital, Ballabgarh, detailed by boundaries in para no.1 of the plaint is illegal and void abnitio and for consequential relief of mandatory injunction directing the defendant to remove any construction found or proved to be over the plot or any part of the same. The plea of the plaintiff in this regard is that the Regular Second Appeal No. 3169 of 1985 2 defendant has got the sale deed executed through its own official named Ravinder Mittal for an ostensible sale price of Rs.15,000/-. Mr. Ravinder Mittal is said to have no right or authority to do so. The plaintiff has even questioned the authority of the then committee of the Society to authorise the transfer or alienation of the suit property vide resolution dated 16.02.1979. It is further averred that no approval of the general body of the plaintiff or of elected committee or Managing committee was ever taken in this behalf. Ravinder Mittal is said to have secretly executed the sale deed in favour of the defendant. Claiming that the plaintiff is owner of the plot in dispute and that the defendant has fraudulently got a fake and sham document executed, the plaintiff had claimed the relief of declaration and mandatory injunction. The defendant had resisted the suit and took various preliminary objections. The defendant questioned the maintainability of the suit in the present form. Valuation of the suit is also questioned. It has also been averred that the dispute between the two cooperative societies registered under Cooperative Societies Act, 1961 and as such, civil court has no jurisdiction to entertain the suit. Arbitration is pleaded to be the proper course for the parties to get their dispute resolved. The suit is also claimed to be bad for want of statutory notice. In reply on merits, it is admitted that the plaintiff was owner of the property in dispute. It is further averred that the sale deed was executed and got registered in favour of the defendant by the plaintiff Regular Second Appeal No. 3169 of 1985 3 by authorizing Ravinder Mittal by way of resolution dated 16.02.1979 passed by the Board of Directors. The sale deed is claimed to be legal and valid. The other averments of the plaintiff are denied. The plaintiff is claimed to be estopped from filing the present suit. It is further averred that the suit for mandatory injunction or declaration is not maintainable as the plaintiff at present is neither the owner nor in possession of the suit property. The suit is consequently prayed to be dismissed. On the pleadings of the parties, the following issues were framed by the trial court on 06.01.1982:- “1- Whether the impugned sale of the suit land vide sale deed dated 1.2.1980 is wrong, illegal, void and not binding on the plaintiff on the grounds alleged?OPP 2- Whether the plaintiff is entitled to the relief of declaration and mandatory injunction as claimed OPP 3- Whether the suit is not maintainable in the present form?OPD 4- Whether the plaintiff has no locus standi to file this suit?OPD 5- Whether the plaintiff is estopped from filing this suit?OPD 6- Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 7- Whether this court has no jurisdiction to try this suit?OPD 8- Whether the suit is liable to be stayed and the matter is liable to be referred to arbitration, as alleged ?OPD 9- Whether the suit is bad for want of notice ?OPD 10- Relief” Regular Second Appeal No. 3169 of 1985 4 Taking evidence of the parties and hearing learned counsel representing them, learned trial court decreed the suit of the plaintiff with costs declaring sale deed dated 01.02.1980 to be void abnitio and not binding on the plaintiff. A decree for mandatory injunction directing the defendant to remove the construction raised by it on the suit land was also passed giving one month's time to do so. Aggrieved by the aforesaid judgment, the defendant filed an appeal before the First Appellate Court, which was decided by learned Additional District Judge (I), Faridabad, vide judgment dated 25.07.1985 wherein the court confined itself to the issues of jurisdiction of civil court and maintainability of the suit in the present form. On the question of jurisdiction, the finding of the trial court was affirmed. However, on the question of maintainability of the suit in the present form, the finding was given in favour of the defendant and the suit was held not maintainable and decree passed by the trial court was set aside. In the face of this finding, inspite of the fact that the suit was not found to be properly valued for the purposes of court fee and jurisdiction, no useful purpose was found to be served by giving opportunity to the plaintiff to make up the deficiency in the court fee. Aggrieved by this judgment, the plaintiff has brought this regular second appeal. Regular Second Appeal No. 3169 of 1985 5 I have heard Shri Gopi Chand, learned counsel for the appellant and Mr. H.S. Gill, Senior Advocate with Mr. Manuj Nagrath, learned counsel for the respondent and have gone through the record of the case carefully. Learned counsel for the appellant has submitted that the objection of the defendant to the maintainability of the suit in the present form was not specific. According to him, specific plea in this regard was required to be taken at the earliest so that the plaintiff could get an opportunity to amend the plaint. According to him, the objection taken regarding maintainability of the suit by the defendant was vague and it was moreover not pressed before the trial court. According to him, no affidavit was filed by the defendant before the First Appellate Court to the effect that the trial court had wrongly mentioned this issue as not pressed. According to him, the First Appellate Court was not empowered to make out a new case for the defendant in this regard. He has, thus, submitted that the First Appellate Court has been wrong in deciding the question of maintainability in favour of the defendant without simultaneously giving opportunity to the plaintiff to amend its plaint and seek the relief of possession. Learned counsel for the respondent has , however, submitted that the question of maintainability was a legal question and it could be raised at any time. According to him, two sale deeds were executed at the same time by the plaintiff through the same Regular Second Appeal No. 3169 of 1985 6 person in favour of the defendant and the other sale deed which was for a larger portion was not challenged. According to him, the plaintiff-appellant never sought an opportunity to amend the plaint so as to incorporate the relief of possession. According to him, learned First Appellate Court has rightly decided the question of maintainability in favour of the defendant and has rightly dismissed the suit of the plaintiff. Learned counsel for the appellant has cited before me some decisions in support of his submissions. The first decision is of Hon'ble Supreme Court of India in Sant Lal Jain v. Avtar Singh, 1985(1) RLR 736. It was a suit for mandatory injunction filed on the plea that licence of the defendant was revoked. It has been held that suit in effect is one for possession though couched in the form of a suit for mandatory injunction. The suit was held maintainable. The second decision of this court is reported as DAV College, Hoshiarpur v. Sarvda Nand Anglo Sanskrit, Higher Secondary School, Managing Committee, 1966 Current Law Journal(Pb) 549. While considering the finding of the First Appellate Court that the suit for declaration was not maintainable, it has been held that the suit should not have been dismissed but should have been remanded to the trial court with the necessary directions regarding amendment of the plaint. The next judgment cited before me is S. Bhagat Singh v. Satnam Transport Co. Ltd. And others AIR 1961(Punjab) 278. It was held in this case that when the plaintiff is entitled to further relief Regular Second Appeal No. 3169 of 1985 7 but files the suit only for declaration, the suit should not be dismissed but he should be given opportunity to amend his plaint. The next case cited before me is Union of India, Ministry of Food and Agriculture (Department of Food), New Delhi v. Pearl Hosiery Mills and others, AIR 1961 (Punjab) 281 . The suit brought by the plaintiff therein was pure declaratory and it was held that declaration could not be given unless the plaintiff had asked for further relief, which was available to him. It was further held that the suit could not be dismissed and the plaintiff should have been given an opportunity to amend his plaint so as to include the prayer for consequential relief. The last case on this point cited by learned counsel for the appellant is Mst. Rukhmabai v. Lala Laxminarayan and others AIR 1960 (SC) 335, in which Hon'ble Supreme Court has held as under:- “30. The next question raised by the learned counsel for the appellant is that the suit should have been dismissed in limine as the plaintiff asked for a bare declaration though he was in a position to ask for further relief within the meaning of section 42 of the Specific Relief Act. The proviso to section 42 of the said Act enacts that “no Court shall make any such declaration when the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so”. It is a well-settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he Regular Second Appeal No. 3169 of 1985 8 seeks to do so. The learned counsel for the appellant contends that in the plaint the cause of action for the relief of declaration was given as the execution of the partition decree through the Commissioner appointed by the Court and, therefore, the plaintiff should have asked for a permanent injunction restraining the appellant from interfering with his possession. The appellant did not take this plea in the written statement; nor was there any issue in respect thereof, though as many as 12 issues were raised on the pleadings; nor does the judgment of the learned District Judge disclose that the appellant raised any such plea. For the first time the plea based on section 42 of the Specific Relief Act was raised before the High Court, and even then the argument advanced was that the consequential relief should have been one for partition; the High Court rejected the contention on the ground that the plaintiff, being in possession of the joint family property, was not bound to ask for partition if he did not have the intention to separate himself from the other members of the family. It is not necessary in this case to express our opinion on the question whether the consequential relief should have been asked for; for, this question should have been raised at the earliest point of time, in which event the plaintiff could have asked for Regular Second Appeal No. 3169 of 1985 9 necessary amendment to comply with the provisions of section 42 of the Specific Relief Act. In the circumstance, we are not justified in allowing the appellant to raise the plea before us.” Learned counsel for the appellant has cited a case reported as Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others AIR 1977 (SC) 890 on the point that the Appellate Court cannot make out a new case which was not pleaded by the parties. Though there had been a bare plea that the suit is not maintainable in the present form in preliminary objection no.1 yet the plea in detail appearing in para no.4 of the written statement cannot be over looked. The defendant has averred therein that “ the suit for mandatory injunction or declaration is not maintainable as the plaintiff is neither the owner nor in possession of the suit”. This plea of the defendant is quite clear and learned First Appellate Court in giving finding in favour of the defendant on this plea, cannot be said to have made out a new case for the defendant. The case in hand is not of an owner filing a suit for mandatory injunction against the licensee whose licence has been revoked. Therefore, the claim for mandatory injunction cannot be termed as claim for possession. Section 42 of the Specific Relief Act may bar the suit for declaration where the plaintiff is in a position to seek further relief. The plaintiff here sought further relief but not of possession but of mandatory injunction, to which he is not entitled. Regular Second Appeal No. 3169 of 1985 10 Now to the question as to whether the permission to make necessary amendment in the plaint should have been automatically granted to the plaintiff on the court reaching the finding that the suit in the present form was not maintainable, answer has been given by Hon'ble Supreme Court in Mst. Rukhmabai's case (supra) where it has been laid down that the plaintiff can be allowed to amend the plaint if he sought to do so. Nothing is before me to show that the plaintiff sought to amend the plaint before learned First Appellate Court. The defendant under the colour of title conveyed vide sale deed dated 01.02.1980 entered into possession over the suit property. The defendant after entering into possession of the suit plot, raised construction of godown on the same. Therefore, on the date of filing the suit, the defendant was in established possession of the suit property and in the facts of this case, the defendant could not be directed by way of mandatory injunction to remove his construction from the property. The relief, which was available to the plaintiff and should have been sought with declaration has been of possession, which it did not seek. Therefore, the suit was not maintainable for declaration and mandatory injunction. The plaintiff never sought to amend the plaint and to make it a suit for possession and pay court fee on the same as per the value of the suit property. Hence, none of the decisions cited before me by learned counsel for the appellant apply to the facts of the case. No substantial question of law moreover appears to be arising in this appeal. Consequently, finding no reason to Regular Second Appeal No. 3169 of 1985 11 interfere with the decision of learned First Appellate Court, I dismiss this appeal. ( Vijender Singh Malik ) August 25, 2011 Judge dinesh