Jyotirmay Bhattacharya, J.:— Leave is granted to the learned advocate-on-record of the appellants to remove the defect in the memorandum of appeal in terms of the report of the Stamp Reporter dated 18th June, 2015.
2. The instant first miscellaneous appeal is directed against an order being No. 12 dated 8 April, 2015 passed by the learned Civil Judge (Senior Division), Asansol in Title Suit No. 219 of 2013 whereby the plaint filed by the plaintiffs/appellants was rejected under the provision of Order 7 Rule 11 of the Code of Civil Procedure.
3. The plaintiffs/appellants filed a suit seeking declaration that the plaintiffs are entitled to rupees thirty lakh from the defendant on account of maintenance. Plaintiffs also prayed for mandatory injunction seeking direction upon the defendant for payment of the said sum of rupees thirty lakh which according to the plaintiff no. 1 was allegedly incurred for study and marriage of her daughter, who was impleaded as plaintiff no. 2 in the said suit.
4. Since ad valorem court fees was not paid on the relief for injunction claimed in the said suit, maintainability of the suit was questioned. Subsequently, the plaintiffs amended their plaint by abandoning the relief for mandatory injunction and converted the suit into a suit for declaration simpliciter. In such a suit, the defendant filed an application under Order 7 Rule 11 of the Code of Civil Procedure on the ground that the suit as framed is not maintainable as it is barred under Section 34 of the Specific Relief Act.
5. Learned Trial Judge ultimately came to the conclusion that the suit is barred under Section 34 of the Specific Relief Act as the plaintiffs have abandoned their claim for mandatory injunction. Challenging the said order, the instant appeal has been filed.
6. After hearing the learned advocate appearing for the plaintiffs/appellants and after going through the impugned order, we have no hesitation to hold that in the absence of the relief for mandatory injunction, the suit as it is framed which is merely a suit for declaration, is hit by Section 34 of the Specific Relief Act, as no declaration can be given in such a suit unless the incidental relief by way of injunction is prayed for in the suit. As such, we hold that the learned Trial Judge did not commit any illegality in rejecting the plaint of such a suit under Order 7 Rule 11(d) of the Code of Civil Procedure.
7. In the facts and circumstances as stated above, we hold that no substantial question of law is involved in this appeal. Accordingly, the appeal does not deserve admission under the provision of Order XLI Rule 11 of the Code of Civil Procedure. The appeal thus stands dismissed.
Re: CAN 5535 of 2015 (Stay)
8. Since we have not admitted the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN 5535 of 2015 is thus deemed to be disposed of.
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