SMT. VIDYA BAI GUPTA v. LALLULAL GUPTA

application filed by plaintiff under Order 6 Rule 17 of C.P.C. has been allowed.

2. It is submitted by counsel for petitioner that respondent/plaintiff filed a suit for possession after demoliting the illegal construction as well as for permanent injunction. The petitioner did not file her written statement, however, the suit was dismissed. In an appeal filed by respondent, an application under Order 41 Rule 27 of C.P.C. was filed by petitioner as well as by respondent for taking additional evidence on record. Both the applications were allowed. However, the application filed by respondent under order 6 Rule 17 of C.P.C. was not decided by the Appellate Court and it was directed that the trial Court shall decide the said application. Consequently, the appeal was allowed and matter was remanded back to the trial Court. It is submitted that now by the impugned order, the trial Court has allowed the application filed by respondent under Order 6 Rule 17 of C.P.C.

3. Challenging the order passed by the trial Court it is submitted by counsel for petitioner that the amendment will certainly change the nature of the suit. Initially the suit was filed only for possession after demolition of illegal construction as well as for permanent injunction and now by the amendment, respondent has sought the declaration of title.

4. Per contra, the petition is vehemently opposed by counsel for respondent. It is submitted that the trial Court has passed the correct order.

5. Heard counsel for the parties.

6. The only objection raised by counsel for petitioner is that the proposed amendment will change the nature of the suit.

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7. It is true that initially respondent had not claimed a relief of declaration of his title but as already pointed out that petitioner did not file his written statement. Therefore, it is clear that the title of respondent was never disputed by petitioner. Therefore, under these circumstances, it can be said that the relief for declaration of title was inbuilt in the relief of possession or such declaration was not required.

8. The Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs. and Others, reported in (2008) 4 SCC 594 has held as under:-

"Re: Question (i)

13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title

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of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

9. Therefore, if respondent has sought the declaration of his title, then it cannot be said that the nature of the suit will be changed.

10. No other argument is advanced by counsel for petitioner.

11. Considering the facts and circumstances of the case, this Court is of the considered opinion that no jurisdictional error was committed by the trial Court.

12. Accordingly, order dated 25.01.2023 passed by Civil Judge Class- I, Barhi, District Katni in Civil Suit No. 45-A/2015 is hereby affirmed.

13. Petition fails and is hereby dismissed.

(G.S. AHLUWALIA)

JUDGE

AL

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