Supreme Court: Suit for declaration of title simpliciter is not maintainable without claiming consequential relief of possession

 In Ram Saran v. Ganga Devi [MANU/SC/0523/1972 : (1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [MANU/SC/0136/1993 : 1993 Supp (3) SCC 129] this Court dealt with a similar issue where the Plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [MANU/SC/0289/2011 : 2011:INSC:97 : (2011) 4 SCC 567).{Para 56}

 

57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.

58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-Plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.

30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs (2-Judge Bench) MANU/SC/0354/2013 : 2013:INSC:236 : (2014) 14 SCC 502, the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3854 of 2014

Decided On: 13.02.2024

Vasantha (Dead) thr. L.R. Vs. Rajalakshmi (Dead) thr. L.Rs.

Hon'ble Judges/Coram:

Hrishikesh Roy and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation:  MANU/SC/0105/2024.

Read full Judgment here: Click here.

Print Page

Can the court grant consequential relief if the plaintiff has not claimed foundational relief barred by limitation?

 We are of the view that the respondent is right in contending that enforcement of the negative covenants presupposes the existence of a subsisting agreement. As noticed earlier, the law is well settled that the renewal of an agreement or lease requires execution of a document in accordance with law evidencing the renewal. The grant of renewal is also a fresh grant. In the instant case, the appellant-plaintiff did exercise their option and claimed renewal. The respondents denied their right to claim renewal in express terms and also unequivocally stated that the agreement did not stand renewed as contended by the appellants. Having regard to these facts it must be held that a cause of action accrued to the appellant- plaintiff when their right of renewal was denied by the respondents. This happened in December, 2001 and, therefore, within three years from that date they ought to have taken appropriate proceedings to get their right of renewal declared and enforced by a court of law and/or to get a declaration that the agreement stood renewed for a further period of 5 years upon the appellants' exercising their option to claim renewal under the original agreement. The appellants-plaintiffs have failed to do so. The appellants ought to have prayed for a declaration that their agreement stood renewed automatically on exercise of option for renewal and only on that basis they could have sought an injunction restraining the respondents from interfering with their possession and operation. Having not done so, they cannot be permitted to camouflage the real issue and claim an order of injunction without establishing the subsistence of a valid agreement. In the instant suit as well they could have sought a declaration that the agreement stood renewed automatically but such a claim would have been barred by limitation since more than 3 years had elapsed after a categoric denial of their right claiming renewal or automatic renewal by the respondents- defendants. {Para 32}

33. Mr. Nariman contended that this case was governed not by Article 58 of the Limitation Act but, if at all, by Article 113 thereof because there is no specific article provided for enforcement of positive or negative covenants. We shall assume that he is right in contending that Article 113 may apply where enforcement of a positive or negative covenant is sought in a suit for injunction. However, in this case we have found that the real foundation for the suit was that the earlier agreement stood renewed automatically containing the same terms and conditions as in the original agreement including the negative covenants. There is neither a document to prove that the agreement stood renewed nor is there a declaration by a court that the agreement stood renewed automatically on exercise of option for renewal by the appellants. The basis for claiming the relief of injunction, namely, a subsisting renewed agreement did not exist in fact. In its absence, no relief as prayed for in the suit could be granted by the clever device of filing a suit for injunction, without claiming a declaration as to their subsisting rights under a renewed agreement, which is apparently barred by limitation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2517 of 2007 

Decided On: 15.05.2007

Hardesh Ores Pvt. Ltd. Vs.  Hede and Company

Hon'ble Judges/Coram:

B.P. Singh and H.S. Bedi, JJ.

Author: B.P. Singh, J.

Citation: MANU/SC/7671/2007,(2007) 5 SCC614

Print Page

Whether court can grant enquiry for mesne profits even without prayer in this regard?

I do not find any substance in the submission of learned counsel for the appellant-UCO Bank that the respondents-original plaintiffs did not pray for such an inquiry for the mesne profit under Order 20, Rule 10 of the Code of Civil Procedure and in absence of a specific prayer for inquiry into mesne profit, the Trial Court while deciding Small Cause Suit No. 39 of 2001, directed an inquiry into mesne profit under Order 20, Rule 10 of the Code of Civil Procedure. Even in the case of Gulamhusain Asgaraly Vahanvaty (MANU/MH/0600/2011 : 2011 (4) Bom CR 169) (supra), relied upon by learned counsel for appellant-UCO Bank, this Court has taken a view that the relief of mesne profits is a consequential relief to the main relief and the trial court has to pass an order of holding inquiry into mesne profit when the suit is decreed. If such a suit for recovery of possession is dismissed, the question of payment of mesne profits does not arise and therefore, very often, issue of mesne profits is not framed since there is an independent provision in the CPC for holding an inquiry for mesne profits, and only when the suit is decreed further consequential relief is to be granted.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 652 of 2006

Decided On: 03.05.2016

UCO Bank, Vs.  Asaram Mohanlal Samdani and Ors.

Hon'ble Judges/Coram:

V.K. Jadhav, J.

Citation: 2017(2) ALLMR 92

Print Page

Whether court should order restitution if there is no variation or reversal of decree of order?

Section 144 applies to a situation where a decree or an
order is varied or reversed in appeal, revision or any other
proceeding or is set aside or modified in any suit instituted
for the purpose. In that situation, the Court which has passed
the decree may cause restitution to be made, on an application
of any party entitled, so as to place the parties in the
position which they would have occupied but for the decree or
order or such part thereof as has been varied, reversed, set
aside or modified. The court is empowered to pass orders which
are consequential in nature to the decree or order being varied
or reversed.
In the present case, the interim order of the Trial court
did not require the defendant to hand over the possession to
the plaintiff. There was no decree or order of the Trial court
by virtue of which the appellant was given possession of the
property, nor did any decree or order mandate that the
respondent hand over possession to the appellant.
In these circumstances, the provisions of Section 144,

CPC were not attracted there being no variation or reversal of
a decree or order as contemplated by Section 144.
The remedy of the first respondent, if any, did not lie
in an application for restitution before the executing court
under Section 144, CPC. The executing court was justified in
declining to entertain the application under Section 144, CPC.
The order of the first appellate court which has been
affirmed by the High Court was unsustainable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 880 OF 2019
(Arising out of SLP(C) No. 2378 of 2006)

MURTI BHAWANI MATA MANDIR Vs RAMESH & ORS. 

Dr. Dhananjaya Y. Chandrachud, J.
Dated:January 21, 2019

Print Page

Whether it is permissible to seek relief of declaration without seeking consequential relief?

 In view of above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief. In the instant case, suit for declaration of title of ownership had been filed though, the Plaintiff/respondent No. 1 was admittedly not in possession of the suit property. Thus, the suit was barred by the provision of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1374 of 2008

Decided On: 17.07.2012

 Union of India (UOI) Vs.  Ibrahim Uddin and Ors.

Print Page

What are essential ingredient necessary in order to constitute consequential relief?

Third question is in respect of consequential relief. In the Act, section 7(iv)(c) provides for payment of Ad Valorem Court Fee for a suit claiming a declaratory decree/order where consequential relief has prayed for. Full Bench of Allahabad High Court in the case of Murlidhar v. Banshidhar and others, MANU/UP/0029/1963 : AIR 1963 Allahabad 86 has laid down the meaning of expression "Consequential Relief as used in this section. It is as under:--

"In our opinion, the expression consequential relief "in section 7(iv)(c) means some relief which would follow directly from the declaration given, the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a substantive relief. A consideration of all the Cls. (1) to (f), sub-section (4) Court-Fees Act leads to the same conclusion".

This definition of the expression "consequential relief was followed by a Division Bench of this Court in the case of Sri Krishna Chandraji v. Shyam Behari Lal, (s) MANU/UP/0060/1955 : AIR 1955 All 177 where an analysis of the definition the learned Judges found four essential ingredients to be necessary in order to constitute a consequential relief. Those ingredients were:

(I) That the relief should follow directly from the declaration given;

(II) that the valuation of the relief be not capable of being definitely ascertained;

(III) that the relief is not specifically provided for anywhere in the Act; and

(IV) that the relief cannot be claimed independently of a declaration as a substantial relief."

14. The true test to ascertain whether the consequential relief infact flows from the declaratory relief is as to whether the said consequential relief can be claimed independently of the declaration as a substantial relief or not. Every injunction in a suit for injunction would not flow from the declaration in a case where the plaintiff is in possession of the property in his own rights; comes before this Court and seeks declaration that the property belongs to him and the other party cannot interfere with his possession then it cannot be said that the plaintiff is required Ad Valorem Court Fees because the relief of injunction is a consequential relief. As observed above the relief of injunction if can independently be claimed then in every case it would not be a consequential relief. It is settled law that if a person is in settled possession he cannot be evicted except in accordance with law. Such a person if claims a declaration of his title and injunction that the defendants be restrained from interfering with his possession then the relief of injunction is not a consequence of the declaration because even if the Court is of the opinion that the declaration cannot be made in favour of the plaintiff then too the Court will grant an injunction in favour of the person who is in settled possession. Such a person would be called upon to value both the reliefs separately and each of the relief would be independent of the other. In a suit of this nature the plaintiff is not seeking the relief of injunction as consequential relief but is entitled to claim the same because of his settled possession. In such a case section 7(iv)(d) of the Court Fees Act would be applicable for valuing the relief of injunction and Article 17 of Schedule II of the Act would provide the Court fees for the said declaration. In the matter of Sanik Nagar durga G.H. Samiti v. Indore City Improvement Trust, 1983 M.P. Weekly Note, Note No. 56, in almost similar situation where the plaintiff sought for the relief of declaration and injunction to restrain the defendant from starting the construction over the suit land, this Court observed that in fact the plaintiff was claiming two distinct reliefs, one for declaration of the title and the other for preventive injunction. The relief of injunction in fact was not consequential to the relief of declaration because even without claiming the declaration relief, plaintiff could have brought the suit on the same pleadings seeking the relief for injunction only. These were two distinct and separate reliefs. The High Court further observed that the relief of injunction though related to question of plaintiff's title, was not consequential to the declaration.

15. In the instant case also the plaintiff has sought declaration of her title and has prayed for injunction. Each of the relief can be claimed separately. If it is found that the reliefs can be claimed separately then the relief of injunction would not be consequential reliefs to the relief of declaration. 

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

W.P. No. 4467 of 2014

Decided On: 20.03.2017

Gomatiprasad and Ors. Vs. Mahesh Singh and Ors.

Hon'ble Judges/Coram:

Anand Pathak, J.

Citation: AIR 2017 Madhya pradesh 125

Print Page

Whether suit for declaration without claiming consequential relief is maintainable?

One of the submissions made before the courts below, on behalf of the Defendant, was that the suit for mere declaration when the Plaintiff was not in possession of the property, was not maintainable and hit by Section 34 of The Specific Reliefs Act, 1963, the Plaintiff having not sought for recovery of possession.

33. Trial court, after considering the aforesaid submissions, recorded its conclusions in para 14 which is to the following effect:

From the facts of above cited suit, Plaintiff in this suit has prayed for the relief of declaration without seeking the relief of recovery of possession and under these circumstances, it is clearly seen that the Plaintiff is not entitled to get such relief. Therefore, it is held that the suit is not maintainable legally.

34. Section 34 of the Specific Reliefs Act, 1963 provides as follows:

Section 34. Discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the Plaintiff need not in such suit ask for any further relief:

Provided 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.

35. In the present case, the Plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. v. Smt. Ganga Devi MANU/SC/0523/1972 : AIR 1972 SC 2685, wherein para 1 & 4 following was stated:

1. This is a Plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran, the Plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the Defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the Plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.

4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The Plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable.

36. The Plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the Plaintiff. The suit filed by the Plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction Under Section 100 Code of Civil Procedure could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2342 of 2017 (Arising out of SLP (C) No. 21587 of 2014)

Decided On: 10.02.2017

Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar Vs. Chandran and Ors.

Print Page

Whether suit for declaration simplicitor is maintainable without claiming consequential relief?

   In denouement, it can be stated that the judgment and decree

in O.S.No.157 of 2003 and those in the counter claim preclude the plaintiff

from asserting his possession over the property. Prayer in the suit for

prohibitory injunction is not maintainable by virtue of res judicata, bar under

Order IX Rule 9 of the Code and operation of Section 37(2) of the Specific

Relief Act. If that be so, the suit for declaration could be regarded only as

one without seeking a consequential relief, which naturally flows from the

substantive relief. In the absence of a prayer for recovery of possession of


the property on the strength of title, the plaintiff cannot maintain a suit for

declaration simplicitor. The suit is bad for non-joinder of necessary parties.

From the facts proved, it is seen that the suit should have been instituted

within three years from the date when the right to sue first accrued.

Therefore, the suit is barred by limitation.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                        PRESENT:

                            MR. JUSTICE A.HARIPRASAD

                  6TH DAY OF JANUARY 2017

                            RSA.No. 855 of 2016 
       

                E.N CHANDRAN
             Vs

                VALSAN MATATHIL
               

Print Page

Whether suit for declaration is maintainable when consequential relief is not claimed?

 The defendant no.5 had taken a categorical plea that the plaintiff
was informed by letter dated 3/10/1998 that the sale was confirmed by
sale certificate dated 20/07/1998. It was also stated by the General
Manger of defendant no.5 in his evidence that the suit property was
auctioned on 16/06/1998 and the sale was confirmed on 20/07/1998 by
order of the Recovery Officer, the defendant no.4; that the plaintiff nor
other alleged heirs had shown any interest in the suit property; that the
plaintiff or other alleged heirs never objected to the attachment, auction
or confirmation of sale. It was further deposed by him that there was no
prayer in the suit for declaring the sale certificate as null and void.
Inspite of that, the plaintiff took no steps either to seek a declaration that
the said sale certificate was null and void or for that matter for
cancellation of its registration or for the recovery of the suit property
from the possession of defendant no.12. Shri Ramani, learned Counsel
appearing on behalf of the plaintiff submits that this Court can mould
the reliefs and grant the same to the plaintiff by declaring the sale
certificate as null and void and directing cancellation of its registration.
I am unable to accede to the submission made by Shri Ramani. A
similar issue was considered by the Division Bench of this Court in the
case of Mr. Guna Krishna Gauns & Anr. V/s. Mr. Antonio Joao
Braganza @ Antush Braganza & Ors. (2009 (2) Bom.C.R. 665)
(unreported judgment dated 15/12/2008 in First Appeal No.189/2005),
to which I was a party and it was stated therein that the object of the
proviso to Section 34 of the Specific Relief Act, was to prevent
multiplicity of suits by preventing a person from getting a mere
declaration of right in one suit and then seeking the remedy without
which the declaration would be useless and which could not have been
obtained in the same suit, in another suit. A claim is said to be
consequential only when it cannot be claimed in the absence of a claim
for declaration. Otherwise it would lead to multiplicity of litigation for
the declaratory suit will have to be followed up with an ejectment action
for recovery of possession. It is well settled law that a suit for mere
declaration when consequential relief which is available and which is
not sought for, is not maintainable. Reference was made to the case of
Ram Saran & Anr. V/s. Smt. Ganga Devi (AIR 1972 SC 2685) wherein
the Apex Court had stated that where the defendant is in possession of
the some of the suit properties and the plaintiff in his suit does not seek
possession of those properties but merely claims a declaration that he is
the owner of the suit properties, the suit is not maintainable. That was
the case where Gangadevi was in possession of suit property and the
plaintiffs had not sought the possession of the suit property and had
merely claimed declaration that they were the owners of the suit
property and it is in that context that the Apex Court had held that the
suit was not maintainable. Reference was also made to the case of
Vinay Krishna V/s. Keshav Chandra & Anr. (AIR 1993 SC 957)
wherein it was held that the failure to ask for relief of possession
undoubtedly bars the discretion of the Court in granting the decree for
declaration. The Apex Court had further observed that merely because
the plaint says in the prayer, such other relief be granted to the plaintiff,
it does not mean that without a specific plea for possession and
disregarding the bar under Section 42 (now Section 34, proviso) of the
said Act, the suit could be decreed even with reference to the portions of
which the plaintiff was in possession. In the absence of specific prayer
for the recovery of possession of the property sold by the said sale deeds
to the defendants, the suit for declaratory relief by the plaintiffs was
clearly not maintainable and in this view of the matter also, the
dismissal of the suit for main relief cannot be faulted.


IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO.25 OF 2006

The Goa State Co-operative Bank Ltd., V/s Smt. Olinda Fernandes,

 CORAM : N.A. BRITTO, J.
DATE : 15th SEPTEMBER3
Citation;2010 (6) BOMCR871

Print Page

Whether party can reserve main relief to avoid payment of court fees and claim only consequential relief?

As the relief sought for in the suit is based on an alleged
agreement for sale, seeking leave for the main relief of filing suit for
specific performance, but filing only a suit for permanent injunction to
restrain the other party to the alleged agreement from alienating or
selling the property to any third party is not legally maintainable, as per
Order 2 Rule 2 of the Code of Civil Procedure. The Court below, without
considering the plea of the plaintiff and the defence raised by the
respondent, simply passed one word order, "Permitted", which is totally
erroneous, that shows only the non-application of the mind by the Court
below. When the main relief should be for seeking specific performance of
the agreement, as per the pleadings in the plaint, the said main relief
cannot be reserved by any party, in order to avoid payment of heavy
court fee and file a suit, seeking bare permanent injunction, not to
alienate or sell the property to any third party, would certainly be against
the laudable principle of preventing vexatious litigations again and again
against the defendant, as held by the Hon'ble Apex Court. Hence, this
Court is of the view that the impugned order has been passed by the
Court below against law and the same is liable to be set aside, to meet
the ends of justice.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09-01-2015
CORAM :
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
C.R.P (PD).No.2850 of 2013
and M.P.No.1 of 2013

R.Chendilvel vs G.Damodaran

Citation;AIR 2015 Madras 96

Print Page

Declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession.

In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this Court while dealing with the issue held: “……a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree.”

Doctrine embodied in the legal maxim, ‘Ubi jus ibi idem remedium’ (where there is a right, there is a remedy). This Court dealt with the aforesaid doctrine in Dhannalal v. Kalawatibai & Ors., AIR 2002 SC 2572 and held, that “if a man has a right, he must have the means to vindicate and maintain it, and also a remedy, if he is injured in the exercise and enjoyment of the said right, and that it is indeed, a vain thing to imagine a right without a remedy, for the want of a right and the want of a remedy, are reciprocal”. (See also: Smt. Ganga Bai v. Vijay Kumar & Ors., AIR 1974 SC 1126)

Print Page