Himachal Pradesh High Court
State Of H.P. And Others vs Baldev And Others on 14 October, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 6 of 2014 Reserved on: 05.10.2015 .
Decided on: 14.10.2015 State of H.P. and others ...Appellants.
Versus Baldev and others ...Respondents.
of Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the appellants: Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, with Mr. J.K. Verma, Deputy Advocate General.
For the respondents: Mr. Tara Singh Chauhan, Advocate, for the respondents.
Mansoor Ahmad Mir, Chief Justice.
Challenge in this Regular Second Appeal is to the judgment and decree, dated 19.03.2013, made by the District Judge, Mandi, District Mandi, H.P. (for short "the First Appellate Court") in Civil Appeal No. 5 of 2012, titled as Baldev and others versus State of H.P. and others (for short ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 2 : "the impugned judgment") on the grounds taken in the memo of appeal.
.
2. Mr. T.S. Chauhan, Advocate, appeared on behalf of the respondents on 01.01.2014 and the following substantial questions of law came to be framed:
of "1. Whether the findings of First Appellate Court below are vitiated and are illegal for want of proper rt pleadings and proof?
2. Whether the Ld. First Appellate Court below has failed in error of law in entertaining the suit beyond the period of limitation?
3. Whether the findings given by Ld. Court below is both against the case as well as documentary evidence on record?
4. Whether without pleadings and evidence relief for compensation could have been granted by the Ld. First Appellate Court?
5. Whether the findings of Appellate Court below is liable to be set aside in view of common judgment dated 232013 passed by Full Bench of Hon'ble High Court of HP in CWP No. 1966 of 2012C titled Shankar Dass alias Shankru and others, 85 connected cases. Hence the same on limitation grounds is liable to be set aside."::: Downloaded on - 15/04/2017 19:12:14 :::HCHP
: 3 :
3. It is necessary to give a flashback of the case, the womb of which has given birth to the appeal in hand.
.
4. Plaintiffsrespondents, i.e. Dile Ram and Sanehru, filed Civil Suit No. 173 of 2005 before the Civil Judge (Senior Division), Sarkaghat, District Mandi, H.P. (for short "the trial of Court") against the defendantsappellants for grant of decree of permanent prohibitory injunction and mandatory injunction rt in terms of the mandate of Sections 38 and 39 of the Specific Relief Act on the grounds taken in the plaint, which can aptly and precisely be enumerated as under:
5. Plaintiffsrespondents have pleaded that they are in joint ownership and possession of the land comprising in Khata No. 3 min, Khatauni No. 3 min, Khasra No. 304, land measuring 05729 hectares situated in Mauza Harwan/514, Illaqua Hatli, Tehsil Sarkaghat, District Mandi, H.P. (for short "the suit land") alongwith other cosharers and the defendantsappellants are strangers, have started to construct TalwarHarwan link road over the suit land. Further pleaded that the survey was conducted and the defendantsappellants are bent upon to construct the road upon the land of the ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 4 : plaintiffsrespondents and other cosharers, i.e. subject matter of the suit, thereby causing damage. Requests were made to .
the defendantsappellants not to construct the said road, but they continued with the construction work. The plaintiffs respondents are in possession to the extent of their share and of in case, the defendantsappellants are not restrained, the plaintiffsrespondents will suffer irreparable loss.
6. rt It has further been pleaded that the cause of action had accrued to the plaintiffsrespondents on 05.07.2005, when the defendantsappellants started construction of the road.
7. The plaintiffsrespondents have prayed that decree of permanent prohibitory injunction be granted restraining the defendantsappellants permanently from constructing the road over the suit land or changing the nature of the same in any manner and have also prayed that in case, during the pendency of the suit, the defendantsappellants forcibly take the possession or change the nature of the suit land, decree of mandatory injunction be passed commanding the defendants appellants to hand over the possession of the suit land to the plaintiffsrespondents.
::: Downloaded on - 15/04/2017 19:12:14 :::HCHP: 5 :
8. The suit was resisted by the defendantsappellants by the medium of the written statement and the plaintiffs .
respondents have also filed replica/rejoinder.
9. Following issues were framed by the trial Court on 21.09.2007:
of "1. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed for? OPP rt 2. Whether the plaintiffs are entitled to the relief of mandatory injunction as prayed for? OPP
3. Whether the suit is not maintainable in the present form as alleged? OPD
4. Whether the plaintiffs have no legal cause of action to file the present suit against the defendants as alleged? OPD
5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD
6. Whether this Court has no jurisdiction to entertain and try the present suit as alleged? OPD
7. Whether the plaintiffs have served the replying defendants with legal and valid notice under section 80 CPC as alleged? OPD
8. Whether the suit is bad for non joinder of necessary parties as ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 6 : alleged? OPD
9. Whether the plaintiffs have no .
locus standi to file the present suit as alleged? OPD
10. Relief."
10. Parties have led evidence before the trial Court.
11. After hearing the learned counsel for the parties of and scanning the evidence and the pleadings, the trial Court dismissed the suit vide judgment and order, dated 28.11.2011, rt constraining the plaintiffsrespondents to file Civil Appeal No. 5 of 2012 in terms of the mandate of Section 96 of the Code of Civil Procedure (for short "CPC") before the District Judge, Mandi, which was partly allowed vide impugned judgment, the judgment and decree, dated 28.11.2011, made by the trial Court was partly modified and it was held that the plaintiffs respondents are entitled to possession, but instead of granting the decree of possession, directed the defendantsappellants to pay the compensation after making the assessment within six months from the date of the impugned judgment, in default, to hand over the possession of the suit land to the plaintiffs respondents.
::: Downloaded on - 15/04/2017 19:12:14 :::HCHP: 7 :
12. Heard.
13. We are of the considered view that the impugned .
judgment is illegal and the First Appellate Court has fallen in an error for the following reasons:
14. The plaintiffs had to prove that they were in of possession of the suit land, have failed to prove the same. Both the Courts below have held that the road was constructed in rt the year 2000 and the plaintiffs were not in possession on the date of the filing of the suit, i.e. 10.08.2005.
15. It is apt to reproduce relevant portion of para 25 of the impugned judgment and decree herein:
"25. In such a situation, this Court has no hesitation to hold that the plaintiffs are not entitled for the relief for permanent prohibitory injunction as the road has already been constructed by the defendants in this case over the suit land. PW1 Dile Ram himself admitted the fact that the road was constructed in the year 2000. The plaintiffs have not been able to prove the fact that the construction was raised during the pendency of the suit................"
16. It is beaten law of land that when the plaintiff fails to prove possession in a suit for permanent prohibitory injunction or mandatory injunction, the suit is to be dismissed.
::: Downloaded on - 15/04/2017 19:12:14 :::HCHP: 8 :
17. Our this view is fortified by the decision of the Apex Court in the case titled as Ramji Rai & Anr. versus .
Jagdish Mallah (Dead) through L.Rs. & Anr., reported in 2007 AIR SCW 599. It is apt to reproduce paras 10 and 11 of the judgment herein:
of "10. On the finding of facts, we do not wish to interfere. There is no reason to reverse the concurring findings.
rt However, suffice it to state that the lower appellate court should have dismissed the suit filed by the appellants only on the ground that the appellants had failed to prove that they were in possession of the disputed lands. Under Section 38 of the Specific Relief Act, 1963 an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights [See: Mulla's Indian Contract and Specific Relief Acts, 12th Edn., page 2815]
11. In the case of A.L.V.R. Ct. Veerappa Chettiar v. Arunachalam Chetti and others, AIR 1936 Madras 200, it has been held that mere fact that the question of title may have to be gone ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 9 : into in deciding whether an injunction can be given or not is not any justification for holding that the suit is .
for a declaration of title and for injunction. There can be a suit only for an injunction. The present suit is only for permanent injunction and, therefore, the lower appellate court should have, on the facts and circumstances of this case, confined itself to its dismissal only on the ground of that the appellants have failed to show that they were in possession. This has been done but the declaration that the rt appellants are not the owners, was not necessary."
18. The Apex Court in the case titled as Thimmaiah versus Shabira and others, reported in (2008) 4 Supreme Court Cases 182, held that if plaintiff is not in possession, he is not entitled to relief of permanent injunction without claiming recovery of possession. It is apt to reproduce para 10 of the judgment herein:
"10. Undisputedly, the suit was one for permanent injunction and in such a suit the plaintiff has to establish that he is in possession in order to be entitled to a decree for permanent injunction. The general proposition is well settled that a plaintiff not in possession is not entitled to the relief without claiming recovery of possession. Before an injunction can be granted it has to be shown that the plaintiff was in possession."::: Downloaded on - 15/04/2017 19:12:14 :::HCHP
: 10 :
19. It would also be profitable to reproduce para 11 of the judgment rendered by the Apex Court in the case titled as .
Anathula Sudhakar versus P. Buchi Reddy (Dead) By L.Rs. & Ors., reported in 2008 AIR SCW 2692, herein:
"11. The general principles as to when a mere suit for permanent injunction will of lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential rt relief, are well settled. We may refer to them briefly.
11.1 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.
11.2 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.
11.3 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 ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 11 : from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.
.
Where the title of 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."
20. Applying the test to the instant case, the plaintiffs of respondents have not proved the possession and the findings to this effect have not been questioned by them, the suit was to rt be dismissed.
21. The averments contained in the plaint are contradictory for the following reasons:
22. The plaintiffsrespondents have stated in para 2 of the plaint that the defendantsappellants have started to construct the road and in para 4 have stated that they have not acceded to their requests, but continued with the construction work of the road. In para 5 of the plaint, it has been pleaded that the plaintiffsrespondents are in possession of the suit land and in para 8 they have stated that cause of action accrued to them on 05.07.2005 when the defendants ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 12 : appellants started the construction work of the road.
23. The plaintiffsrespondents have also not .
approached the Court with clean hands. It was for them to plead that road was constructed in the year 2000, were out of possession at the time of filing of the suit, had to file suit for of recovery of possession and to explain the delay for not filing the suit till 10.08.2005. Virtually, they have played hide and seek.
rt
24. Our this view is fortified by the judgment rendered by the Apex Court in the case titled as A. Shanmugam versus Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, Represented by its President, reported in 2012 AIR SCW 3017. It is apt to reproduce paras 23 and 27 of the judgment herein:
"23. We reiterate the immense importance and relevance of purity of pleadings. The pleadings need to be critically examined by the judicial officers or judges both before issuing the ad interim injunction and/or framing of issues.
24. to 26. ............
27. The pleadings must setforth ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 13 : sufficient factual details to the extent that it reduces the ability to put forward a false or exaggerated claim or .
defence. The pleadings must inspire confidence and credibility. If false averments, evasive denials or false denials are introduced, then the Court must carefully look into it while deciding a case and insist that those who approach the Court must approach it with clean hands."
of
25. It is beaten law of land that a party, which seeks equity, must do equity and should come to the Court with rt clean hands. In a civil suit, granting of permanent prohibitory injunction or restraint order is discretionary one, based on equity. A person, whose conduct is blameworthy, cannot claim equity. In the instant case, as discussed hereinabove, the plaintiffs have taken contradictory stand in the plaint and have concealed the fact that in the year 2000, the possession was taken by the defendantsappellants, which is held by both the Courts below. The impugned judgment and decree has not been questioned by the plaintiffsrespondents, thus, has attained finality so far it relates to them.
26. The Apex Court in the case titled as Kanchusthabam Satyanarayana and others versus ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 14 : Namuduri Atchutaramayya and others, reported in (2005) 11 Supreme Court Cases 109, held that .
discretionary relief such as injunction being equitable in nature must be granted on considerations of equity and justice. It is apt to reproduce relevant portion of para 11 of herein:
"11. ......The grant of discretionary relief such as injunction being in the nature of rt equitable relief must be granted inter alia on considerations of equity and justice, and the Appellant who is himself guilty of inequitable conduct cannot claim such relief. Therefore, we find that in the facts and circumstances of the case, assuming for the sake of argument that the Civil Court had jurisdiction to entertain the suit, and even going to the extent of assuming that the tenancy courts had no jurisdiction to entertain the eviction petition filed by appellant himself, this was an appropriate case in which injunction ought not to have been granted. Having obtained an advantage by invoking the jurisdiction of the authorities under the Tenancy Act, the Appellant cannot be allowed to retain that advantage by turning around and challenging the jurisdiction of the same authorities under the tenancy Act. Even under the Code of Civil procedure an order of Restitution is stayed only in exceptional circumstances. We, therefore, concur with the view of the High Court and dismiss these appeals."
(Emphasis added) ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 15 :
27. The Kerala High Court in the case titled as Vellakutty versus Karthyayani and another, reported in .
AIR 1968 Kerala 179, and the Madhya Pradesh High Court in the case titled as Shajuddin and others versus Nagar Palika Parishad and another, reported in AIR 1985 of Madhya Pradesh 252, held that if plaintiff has acted in unfair or unequitable manner with his opponent, he is not rt entitled to injunction.
28. In terms of the mandate of the Limitation Act, 1963, the suit was to be filed within three years, but the suit came to be filed after five years. There is concurrent finding to this effect that the road was constructed in the year 2000 and the plaintiffsrespondents were out of possession and the suit came to be filed in the year 2005. Thus, the suit was barred by time.
29. The Delhi High Court in the case titled as Faqir Chand (through L.Rs.) versus Lila Ram (through L.Rs.), reported in AIR 1994 Delhi 161, held that the suit for injunction has to be filed within three years. It is apt to ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 16 : reproduce para 26 of the judgment herein:
"26. Facts of the present case are in pari .
materia with the facts of the case decided by the Lahore High Court in the Full Bench judgment. So,following the Full Bench judgment of the Lahore High Court which stands approved by the Supreme Court. I hold that in the present case the construction of the tin shed in the common passage amounted of to complete ouster of the right of common use to that portion of the joint passage where the tinshed stood rt constructed. Hence, the injury was complete when the tinshed was constructed and limitation was three years for filing the suit for seeking the relief of mandatory injunction."
30. The question is whether the defendants appellants can press the ground of limitation at the appellate stage when they have not raised the issue before the trial Court or the First Appellate Court? The answer is in affirmative for the following reasons:
31. It is a fact that the defendantsappellants have not raised the issue of limitation before the Courts below, but have taken this ground in the memo of appeal and substantial question of law No. 5 has been framed.
32. It is the duty of the Court to pose the question, at ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 17 : the first instance, as to whether the suit is within limitation in terms of Section 3 of the Limitation Act, 1963.
.
33. It is apt to reproduce Section 3 of the Limitation Act, 1963 herein:
"3. Bar of limitation. (1) Subject to the provisions contained in sections 4 to of 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be rt dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act
(a) a suit is instituted
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted
(i) in the case of a set off, on the same date as the suit in which ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 18 : the set off is pleaded;
(ii) in the case of a counter .
claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court."
of
34. A bare reading of the said Section mandates that it is the duty of the Court to determine whether the suit is rt within time or otherwise.
35. The Apex Court in the case titled as Food Corporation of India and others versus Babulal Agrawal with Babulal Agrawal versus Food Corporation of India and others, reported in (2004) 2 Supreme Court Cases 712, held that such issue can be raised at any stage, even at appellate stage. It is apt to reproduce relevant portion of para 12 herein:
"12. ..............Learned counsel for the defendantappellant, however, relying upon Section 3 of the Limitation Act submits that it was the duty of the Court to see as to whether the suit was within limitation or not. A suit filed beyond limitation is liable to be dismissed even though limitation may not be set up as a defence. The above ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 19 : position as provided under the law cannot be disputed nor it has been disputed before us........."
.
36. The Bombay High Court in the case titled as Ajab Enterprises versus Jayant Vegoiles and Chemicals Pvt.
Ltd., reported in AIR 1991 Bombay 35, has laid down the of same principle. It is apt to reproduce relevant portion of para 7 herein:
rt "7. ............Apart from this, there is catena of decisions on the basis of which it could be said that there can be no waiver of ground of limitation even if it is assumed that in fact the said consent terms could be considered as waiver. Under Section 3 of the Limitation Act it is the duty of the Court to also consider as to whether the suit is barred by limitation or not even if no such defence is taken by the defendants in a suit. Therefore, there cannot be such waiver against the provisions of limitation. Reliance could be placed on the ruling reported in AIR 1920 PC 139 which has been followed in (1968) ILR 47 Pat. 262. In view of this, there also cannot be any estoppel which could be pleaded by the plaintiffs successfully. The defendants cannot be said to be estopped from pleading that the suit is barred by limitation when in fact the claim of the plaintiffs clearly appears to be barred by limitation taking into consideration Article 15 of the Limitation Act."::: Downloaded on - 15/04/2017 19:12:14 :::HCHP
: 20 :
37. The Kerala High Court in the case titled as M/s.
Craft Centre and others versus The Koncherry Coir .
Factories, Cherthala, reported in AIR 1991 Kerala 83, held that a suit can be dismissed even at appellate stage, though issue of limitation was not raised before the Court of first of instance. It is apt to reproduce para 4 of the judgment herein:
"4. What S. 3 of the Limitation Act says rt is that every suit instituted after the prescribed period shall be dismissed, although limitation has not been set up as a defence. It is the duty of the plaintiff to convince the Court that his suit is within time. If it is out of time and the plaintiff relies on any acknowledgment or acknowledgments in order to save limitation, he must plead them or prove, if denied. An acknowledgment not pleaded in the plaint, atleast by way of amendment, cannot be relied on. The plaint must appear on the face of it to be within time. If not, the court can reject it on the ground of limitation even without issuing summons to the defendant and waiting for his plea of limitation. In this case, the only acknowledgment pleaded is Ext.A1 dated 23101978.
If the Court finds that the
acknowledgment was only on
23101976, the suit filed beyond three years, on 2031981, could be dismissed on that ground itself. The provision in Section 3 is absolute and mandatory. The Court can claim no choice except to obey it in full. It is the duty of the Court ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 21 : to dismiss a suit which on the face of it is barred by time even at the appellate stage despite the fact that the issue was .
not at all raised."
38. While deciding a civil suit, the pleadings are the foundation of the case. The pleadings play an important role in making the judgment and decree and that is why it is said of that the pleadings are the heart, soul and essential foundation of a judicial verdict. It is the bedrock of the judicial disposal.
rt
39. In the instant case, at the cost of repetition, the plaintiffsrespondents have not prayed for relief of compensation or recovery of possession, no such foundation was laid.
40. The Apex Court in the case titled as State of Orissa & Anr. versus Mamata Mohanty, reported in 2011 AIR SCW 1332, held that the relief, not founded on pleadings, cannot be granted. It is apt to reproduce para 35 of the judgment herein:
"35. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 22 : concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue.
.
It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted."
Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. rt App. 195; M/s. Trojan & Co. v. RM.
N.N. Nagappa Chettiar, AIR 1953 SC 235; Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC 3165 :
(2005 AIR SCW 578); and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518 : (2010 AIR SCW 2265)) "
41. The parties, the Courts of first instance, the Appellate Courts or the Revisional Courts cannot travel beyond the pleadings in view of the mechanism provided in CPC, which provides as to what procedure is to be followed after trial stage, i.e. after framing the issues, in terms of Order XIV CPC and how it has to be taken to its logical end after framing the issues.
42. The Apex Court in the case titled as Hari Chand versus Daulat Ram, reported in AIR 1987 Supreme Court ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 23 : 94, held that when the plaintiff fails to prove his case as pleaded in the plaint, the relief cannot be granted by the .
Court, which is neither pleaded nor prayed. It is apt to reproduce para 11 of the judgment herein:
"11. On a consideration of all the evidences on record it is clearly of established that the alleged encroachment by construction of kuchha wall and khaprail over it are not recent rt constructions as alleged to have been made in May 1961. On the other hand, it is crystal clear from the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall with khaprail existed there in the disputed site for a long time, that is 28 years before and the wall and the khaprail have been affected by salt as deposed to by these two witnesses. Moreover the court Amin's report 57C also shows the said walls and khaprail to be 2530 years old in its present condition. The High Court has clearly come to the finding that though the partition deed was executed by the parties yet there was no partition by metes and bounds. Moreover there is no whisper in the plaint about the partition of the property in question between the cosharers by metes and bounds nor there is any averment that the suit property fell to the share of plaintiffs vendor Ramji Lal and Ramji Lal was ever in possession of the disputed property since the date of partition till the date of sale to the plaintiff. The plaintiff has singularly failed to prove his case as pleaded in the plaint."::: Downloaded on - 15/04/2017 19:12:14 :::HCHP
: 24 :
43. The Apex Court in the case titled as Bachhaj Nahar versus Nilima Mandal & Ors., reported in 2009 AIR .
SCW 287, held that the Court cannot, on finding that the plaintiff has not made out the case putforth by him, grant some other relief. It is apt to reproduce para 12 of the of judgment herein:
"12. It is thus clear that a case not rt specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue.
But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 25 : pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one .
of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously of make out such a case not pleaded, suo motu."
44. The pleadings and particulars are necessary to rt enable the Court to decide the rights of the parties in the trial.
45. The Apex Court in the case titled as National Textile Corporation Ltd. versus Nareshkumar Badrikumar Jagad & Ors., reported in 2011 AIR SCW 6180, has laid down the same principle. It is apt to reproduce para 7 of the judgment herein:
"7. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted".
A decision of a case cannot be based on ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP : 26 : grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the .
parties to narrow the area of conflict and to see just where the two sides differ. (Vide: M/s. Trojan & Co. v. RM N.N. Nagappa Chettiar, AIR 1953 AIR 235; State of Maharashtra v. M/s.
Hindustan Construction Company Ltd., AIR 2010 SC 1299; and Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC of 1127)."
46. As discussed hereinabove, the plaintiffs have rt specifically averred that the cause of action accrued to them in the year 2005, which is not factually and legally correct.
47. Keeping in view the discussions made hereinabove, the substantial questions of law are answered accordingly and the impugned judgment and decree is to be set aside.
48. Viewed thus, the impugned judgment and decree is set aside, the appeal is allowed and the suit is dismissed.
(Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan) Judge October 14, 2015 ( rajni ) ::: Downloaded on - 15/04/2017 19:12:14 :::HCHP