Whether the court can grant a relief for which no prayer or pleading was made?

 Issue II

15. Coming to address the second issue, while this Court is not apathetic to the predicament of the Respondent grandparents, it is a fact that absolutely no relief was ever sought by them for the change of surname of the child to that of first husband/ son of respondents. It is settled law that relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice.

16. In the case of Messrs. Trojan & Co. Ltd. Vs. Rm.N.N. Nagappa Chettiar2, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:-

"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.”

17. In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors.3 held:

"Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."

18. In this case while directing for change of surname of the child, the High Court has traversed beyond pleadings and such directions are liable to be set aside on this ground.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6325-6326 OF 2015; 

MRS. AKELLA LALITHA Vs SRI KONDA HANUMANTHA RAO & ANR.

 DINESH MAHESHWARI; J., KRISHNA MURARI; J. 

Author: KRISHNA MURARI, J.

Dated: 28TH JULY, 2022 

Print Page

Whether appellate court can grant relief under O 41 R 33 of CPC even if it is not claimed in plaint?

While considering the scope of the powers of the appellate Court under provisions of Order-XLI, Rule 33 of the Code, the Constitution Bench of the Honourable Supreme Court in Panna Lal [supra] observed that the appellate Court while denying relief to the appellant could grant relief to the respondent as "the case may require." In Mahant Dhangir [supra], it was held that the provisions of Order-XLI, Rule 22 and Rule 33 of the Code were not mutually exclusive. Rule 33 was liberal enough and the only requirements for exercise of such discretion were that the parties before the lower Court should be there before the appellate Court and the question raised must arise properly out of the judgment of the lower Court.

In Chaya and others v. Bapusaheb and others [MANU/SC/0616/1994 : (1994) 2 SCC 41], it was observed by the Honourable Supreme Court in paragraph 14 of its decision as under:-

"14. This provision is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the rule confers a wide discretionary power on the appellate court to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding the fact that the appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross- objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule."

14. From aforesaid, it can be seen that the appellate Court is vested with wide powers to enable it to do complete justice between the parties so as to pass such decree or order as the case may require even in absence of any appeal or cross-appeal. Though it was urged on behalf of the appellants that only such relief that was prayed for in the plaint could be granted in exercise of such powers, I am not in a position to accept said submission. The exercise of these wide powers is not trammeled by the absence of any prayer being made in the plaint. This exercise of power is, however, circumscribed for being exercised only in rare cases and when the facts of such case demand its exercise.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 280 of 2016

Decided On: 13.07.2017

 Sattarsha Dibarsha  Vs.  Ajizabi Dilbarsha and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Print Page

Whether relief claimed constitute cause of action?

Submission of learned counsel for respondent No. 2-trust was that requirement of law being reading the plaint in its totality, the appellants cannot take the plea that they would give up or relinquish some of the reliefs sought for. That would not be permissible. The plea clearly overlooks the basic distinction between statements of the facts disclosing cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 448 of 2004 (Arising out of SLP (Civil) No. 20366/2002)

Decided On: 23.01.2004

Sopan Sukhdeo Sable and Ors. Vs. Assistant Charity Commissioner and Ors.

Print Page

Basic principles for adding any person as party to proceeding

 It is an elementary principle of law that a legal proceeding is initiated for redressal of a grievance; it seeks an appropriate relief in response to such grievance. All those parties in whose absence such grievance cannot be considered or such relief cannot be granted are termed as "necessary parties", whilst all those other parties whose presence may be considered proper for an effective adjudication of the grievance are "proper parties" to such proceeding. Unless a party qualifies either as a necessary or a proper party, it cannot be joined.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 312 of 2018

Decided On: 20.04.2018

 Janak Dilip Dwarkadas  Vs. The Joint Charity Commissioner Greater Mumbai Region,

Hon'ble Judges/Coram:

S.C. Gupte, J.

Print Page

Whether subsequent suit will not be barred by res judicata if new reliefs are claimed in subsequent suit?

Thus the present suit filed by the plaintiff clearly attracts the bar under Order II Rule 2 sub rule (3) CPC also in addition to the specific bar raised by principle of res judicata under Section 11 and also Explanation IV of the said Section. Here the issue raised in the suit being directly and substantially in issue in the earlier suit and considered and decided on merit in earlier suit, the plaintiff cannot be permitted to agitate on the basis of same pleadings and same cause of action. Though some more reliefs are tried to be claimed which were not claimed in the earlier suit, though these reliefs were available, the bar under Order II Rule 2(3) C.P.C. is attracted thereto.

36. Hence the impugned order passed by the trial Court of rejecting the application filed by the appellant-defendant merely on the ground that some of the reliefs claimed in the earlier suit and the present suit are not identical is not legal proper and correct. As to another reason given by the trial Court for rejecting the application is that earlier suit was decided by the trial Court without written statement and also without recording evidence of defendant, hence the judgment in that suit cannot be operate as res judicata. However, the judgment passed by the trial Court in first suit reveals that the said suit was decided on merits, after considering all the contentions raised by the plaintiff therein and also after considering the evidence adduced by the plaintiff, though defendant has not appeared and not filed written statement. Hence, if the earlier suit was decided on merits and the judgment and decree passed therein is not challenged, then the present suit filed under different guise and quoting different provision of Section 6 of Specific Relief Act cannot be maintainable, at all especially even from the averments in the plaint, suit under Section 6 of Specific Relief Act cannot be maintainable as alleged dispossession of the plaintiff from the suit flat was much earlier, in the year 2005 itself and on the same basis, he has filed earlier suit. Therefore merely giving a different title or merely seeking additional reliefs, which he could have asked for in the earlier suit, the plaintiff cannot bring the present one, out of the clutches of Section 11 and Order II Rule 2 sub clause (3) of the C.P.C.

37. If the suit is barred by principle of res judicata on the bare averments made by the plaintiff in the suit, then as held by the Apex Court in the case of State of Haryana v. State of Punjab and anr. MANU/SC/0524/2004 : (2004) 12 Supreme Court Cases 673, it is barred by law. In para 71 of the said judgment, it was observed by Apex Court that since the doctrine of res judicata is an "essential part of the rule of law", it follows that if the issues raised in the suit are barred by res judicata ex facie, then this Court is required to reject the plaint in terms of Order 7 Rule 11(d) C.P.C.

38. In the instant case, earlier proceedings have been referred by the plaintiff in the plaint itself and therefore they were the matter of record and hence on bare perusal of both the plaints, if it is apparently crystal clear that the present suit is barred by principle of res judicata, then the trial Court should have allowed the defendant's application filed under Order VII Rule 11(d) of CPC.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 71 of 2016

Decided On: 29.06.2017

 Ajaykumar Kamalakant Pathak Vs Ramchandra Madari Katkamwar

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(1) MHLJ 155

Print Page

Whether court can grant relief against particular defendant if it is not claimed in plaint?

 It is clear that in the amended plaint the prayer is against the Defendant, therefore, the prayer is only against Defendant No. 1 and not against Defendant No. 2. In a case where prayer is not made against a particular Defendant, no relief possibly can be granted against him. Reference in this connection can be made to the provisions of Order VII of the Code of Civil Procedure. In this connection, Order VII, Rule 5 is relevant and is set out below:

5. Defendant's interest and liability to be shown. - The plaint shall show that the Defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the Plaintiff's demand.

19. Order VII, Rule 7 of Code of Civil Procedure is also relevant and which is also set out below:

7. Relief to be specifically stated.-Every plaint shall state specifically the relief which the Plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the Defendant in his written statement.

20. In Sheikh Abdul Kayum and Ors. v. Mulla Alibhai and Ors. MANU/SC/0385/1962 : AIR 1963 SC 309 it has been held by this Court that it does not lie within the jurisdiction of a Court to grant relief against Defendant against whom no reliefs have been claimed [See paragraph 13, page 313 of the report].

21. Same propositions have been reiterated recently by a judgment of this Court in Scotts Engineering, Bangalore v. Rajesh P. Surana and Ors. MANU/SC/7195/2008 : (2008) 4 SCC 256. In paragraph 10 at page 258 of the report this Court found that even after the Appellant was arrayed as Defendant 6, the Plaintiff did not care to amend the plaint except making the Appellant as Defendant 6. No relief was claimed against Defendant 6. If we follow the said principle in the facts of this case we have to hold that no relief having been claimed against Defendant 2, who is the predecessor-in-title of the present Appellant, no relief can be granted against the present Appellant.

22. The objection of the Respondent that such point is taken only before this Court and not at an earlier stage of the proceeding cannot be countenanced since this point goes to the root of the matter and for consideration of this point no further investigation in the facts of the case is necessary. This point actually appears from the admitted records of the case and this point is based on the provisions of the Code of Civil Procedure.

23. In this connection principles which have been laid down by Lord Sumner in Surajmull Nagoremull v. Triton Insurance Co. Ltd. 52 IA 126, are very pertinent. The learned Law Lord summarized the proposition so lucidly that we should do nothing more than quote it:

...No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset.

24. The aforesaid propositions have been quoted with approval by this Court in Badri Prasad and Ors. v. Nagarmal and Ors. reported in MANU/SC/0009/1958 : AIR 1959 SC 559 at page 562.

25. Similar views have been expressed by this Court again in Tarinikamal Pandit and Ors. v. Perfulla Kumar Chatterjee (dead) by L.Rs. MANU/SC/0587/1979 : AIR 1979 SC 1165. After considering several decisions, including the one rendered in Badri Prasad (supra) this Court held as follows:

...As the point raised is a pure question of law not involving any investigation of the facts, we permitted the learned Counsel to raise the question.... (para 15 at page 1172)

26. In our view this point is sufficient to hold that the judgment of the Hon'ble High Court is not sustainable in law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6409 of 2002

Decided On: 21.04.2011

 Dr. Shehla Burney and Ors. Vs. Syed Ali Mossa Raza (Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

G.S. Singhvi and A.K. Ganguly, JJ.

Print Page

When consolidation of suit is not permissible?

Taking into consideration the aforesaid, admittedly, the cause of action and prayer made in both the suits are totally different. The only similarity is that the petitioner is a defendant in both the suits while the Ram Sahay (now deceased) was the plaintiff in both the suits, however, the other defendants are different. The prayer is also different. It is only after transferring of suits the Court has power to pass an order to consolidate them. However, here, there is no reason to consolidate the suits as they are different in nature. Moreover, powers under Section 151 CPC is to be exercised only for meeting the ends of justice. By way of seeking consolidation, the petitioner appears to have a different purpose i.e. not to allow the first suit and it be decided on the basis of compromise.

17. Considering the entire facts and circumstances and the law as cited above, this Court does not find it just and appropriate to exercise its jurisdiction to call interference in the order dated 16.07.2005 passed by the learned Civil Judge (Sr. Dn.) Merta refusing to consolidate the Civil Original Suit Nos. 61/2005 and 62/2005.

Rajasthan High Court - Jodhpur

Ramanand v learned civil judge on 4 January, 2017

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 
S.B.Civil Writ Petition No. 5168 / 2005 
RAMANAND S/O SHRI RAMDAS AGARWAL

 V

 LEARNED CIVIL JUDGE (S.D.) MERTA (RAJ.)

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Citation:AIR 2017(NOC)668 Raj

Print Page

Whether relief claimed constitute cause of action?

Submission of learned counsel for respondent No.2- trust was that requirement of law being reading the plaint in its totality, the appellants cannot take the plea that they would give up or relinquish some of the reliefs sought for. That would not be permissible. The plea clearly overlooks the basic distinction between statements of the facts disclosing cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts. As indicated above, Order VI Rule 2 requires that pleadings shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim. If the plea of Mr. Savant, learned counsel for the respondent-trust is accepted the distinction between the statement of material facts and the reliance on them for the claim shall be obliterated. What is required in law is not the piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Considering the reliefs claimed vis-a- vis the pleadings would not mean compartmentalization or segregation, in that sense. The plea raised by the respondent-trust is therefore clearly unacceptable.

Supreme Court of India

Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & ... on 23 January, 2004

Bench: Doraiswamy Raju, Arijit Pasayat

Citation:AIR 2004 SC 1801

Print Page

Whether divorced wife is entitled to initiate proceedings under D.V Act to seek appropriate reliefs?

The third limb of argument of the learned counsel for the

petitioner was that when the domestic relationship between parties

stood severed, any application of the divorced wife thereafter can

only be considered as a relief sought against a stranger and does

not fall within the ambit of a domestic violence.         As mentioned

above, the scope of the Act is not confined within the limits of time

and space. Even though at blush, it may appear to be paradoxical to

argue that protection orders can be sought even after separation of

spouses, such a cause of action may not be rare, which arises

subsequent to the divorce, but relateable to the earlier matrimonial

relationship. It is not unusual that even after divorce, certain

obligations arising from past matrimonial relationship continue,

like, maintainance, custody of children, liability to pay amounts or

assets received, operation of bank accounts and personal safety of

divorced wife and children born in the wedlock. It will be illogical

and absurd to hold that the moment of divorce is granted, scope of

protection order also ceases.         It cannot be confined within the

barriers of time and space. Further, the scope of section 18 which

is wide enough to take in any violence which is likely to take place

in the place of employment of aggrieved person, or if the aggrieved


person is a minor, its school or any place frequented by child or

attempting to communicate with the aggrieved person by any

means, including electronic media, indicates that domestic violence

may spread outside, even beyond the four walls of the matrimonial

home. Hence, any act of violence which satisfies the definition of

section 3 of the Act and has a rational nexus to the past matrimonial

relationship, or which arises therefrom or as a sequel to that

relationship, should conceptually fall within the provisions of

Domestic Violence Act. In the above circumstance, considering the

wide scope of the Act, the object of the Act, I find reason to hold

that the ratio in Priya's case (supra) will extend to section 18 of the

D.V Act and other reliefs also.         Hence, even a divorced wife is

entitled to initiate proceedings under sections 18, 19, 20, 21 and 22

of D.V Act to seek appropriate reliefs.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

            MR. JUSTICE SUNIL THOMAS

     13TH DAY OF OCTOBER 2016

                   Crl.MC.No. 2990 of 2016 

           BIPIN,
          Vs
          MEERA D.S.,
           

Print Page

Whether appellant is required to pay additional court fees if additional relief are claimed in Civil appeal?

In Nemi Chand v. Edward Mills co. Ltd., , dealing with the question of court-fees payable in appeal for additional relief, it was observed that a memorandum of appeal, as provided in ART. 1 OF Schedule 1, of Court-fees Act , has to be stamped according to the value of the subject-matter in dispute in appeal; in other words, the relief claimed in the memorandum of appeal their Lordships observed, determines the value of the appeal for purposes of court-fees.

Bombay High Court

Francisco Luis Jose D Souza vs Vithal Bhadu Tamboskar on 18 November, 1988

Equivalent citations: AIR 1989 Bom 303, 1988 (2) BomCR 440, (1989) 91 BOMLR 570

Bench: Couto, Kamat

Print Page

Whether wife can claim reliefs under domestic violence Act even though there is no domestic violence to her?

Under the provisions of Act, 2005, aggrieved person can claim the relief of share envisaged in Sections 17, 18, 19, 20, 21 and 22. Under these sections, no right is created for an aggrieved person to claim arrears of rent or possession of disputed property. Even for claiming the reliefs under the above referred sections, the aggrieved person must prima facie establish that there is domestic violence as contemplated under Section 3 of the Act. This Court in KUPPILI SRIDHAR KUMAR AND OTHERS Vs.KUPPILI SIVA SANTOSHI AND ANOTHER ( ) held as follows:

One of the main ingredients which has to be prima facie established before claiming reliefs under the provisions of the said Act is that there should be domestic violence as contemplated under Section 3 of the Act.

Andhra High Court

Kolli Babi Sarojini And Others vs Kolli Jayalaxmi And Another on 29 April, 2014

HONOURABLE SRI JUSTICE S.RAVI KUMAR  

CRIMINAL REVISION CASE No.1160 OF 2008

Citation;2015 ALLMR(CRI)JOURNAL178

Read full judgment here;click here

Print Page

Whether Change in nature of relief claimed shall be considered as change in nature of suit?

We reiterate that all amendments which are

necessary for the purpose of determining the

real

questions

in controversy between the

parties should be allowed if it does not change

the basic nature of the suit. A change in

the nature of relief claimed shall not be

considered as a change in the nature of suit and

the power of amendment should be exercised in

the larger interests of doing full and complete

justice between the parties.

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.743 OF 2012

Teodolinda Dias Mandoly V  Laurie Hermegeild Pereira,

CORAM : F.M. REIS, J.

DATE : 15th MARCH, 2013

Citation: 2013(5) MHLJ 822

Print Page

Whether Court can make out a case not pleaded by plaintiff?

The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are :

(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.

(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time in a second appeal.

Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to 

float the settled fundamental rules of civil procedure.

Supreme Court of India

Bachhaj Nahar vs Nilima Mandal & Ors. on 23 September, 2008

Print Page