Section 34 Specific Relief Act Not A Bar to Declaratory Suit Without Consequential Relief: Himachal Pradesh High Court

A bench of Justice Vivek Singh Thakur observed,

“Section 34 of the Act does not mandate that declaratory suit without consequential relief which respondentsplaintiffs being able to seek have omitted to do so, is not maintainable at all. Rather it provides that no such declaration shall be made by the Court for omission on the part of the respondents-plaintiffs to seek further relief other than mere declaration of title which could have sought by the respondents/plaintiffs”.

These observations were made while hearing a plea in terms of which the petitioners sought to challenge an order wherein their application under Order 7 Rule 11 (d) of the Code of Civil Procedure (CPC) was rejected by Additional District Judge, Solan.

The main contention raised by the petitioners was that the respondents, who claimed ownership of the disputed property, had never been in possession. The petitioners argued that since the suit was for a declaration without seeking the consequential relief of possession, it was barred by Section 34 of the Specific Relief Act.

On the other hand, the respondents countered this argument by stating that their visits to their grandfather's property, even after his demise, demonstrated their possession. They asserted that the question of possession should be adjudicated during the main suit and that the application to reject the plaint was premature.

Justice Thakur carefully examined the provisions of Section 34 of the Act, which deal with the court's discretion in making a declaration of legal character or right and clarified that the proviso to the section does not mandate the dismissal of a suit for mere declaration simply because the plaintiffs could have sought additional relief.

Instead, it empowers the court to withhold a declaration if the plaintiffs, being able to seek further relief, deliberately choose not to do so, the bench underscored.

The court noted that the suit filed by the respondents was not merely for a declaration but included consequential reliefs such as permanent prohibitory injunction and damages. Justice Thakur emphasized that possession is a fact to be established through evidence during the trial and cannot be determined solely based on the contents of the plaint.

“It is also apt to notice that suit filed by the respondents-plaintiffs is not a suit merely for declaration, but consequential relief, as considered necessary and fit, including suit for permanent prohibitory injunction and damages, has also been sought”, the court recorded.

In concluding the judgment, Justice Thakur upheld the impugned order, affirming the rejection of the application under Order 7 Rule 11 (d) CPC.

Case Title: Sudhakar Sharma & others Vs Nandini Mishra & others

Citation: 2023 LiveLaw (HP)

Click Here To Read/Download Judgment