How to ascertain main relief and ancillary relief for the purpose of calculation of court fees?

V. Rajeshwar Rao vs N. Yadagiri Reddy And Others 2000 (5) ALD 102,  2000(4)ALT366

Civil - court fee - Sections 6 and 24 of Andhra Pradesh Court Fees and Suits Valuation Act, 1956 - revision filed by plaintiff against Order requiring him to pay Court fee in view of subsequent amendment in plaint - plaintiff firstly sought perpetual injunction - defendant constructed building in disputed land despite of interim injunction granted in favour of plaintiff - plaintiff now filing suit for possession by making amendment in plaint in view of acts of encroachment - now possessory relief becomes dominant and other relief ancillary - relief of possession not to be treated as ancillary simply because suit initially filed for injunction - court fee has to be paid on relief of possession.

The expression "main relief takes in almost every relief for which the suit is solely laid for. However, the expression "ancillary relief has to be read in conjunction with the main relief i.e., it should be aiding or auxiliary to the main relief. An ancillary relief can in a given circumstance be the main relief but not vice versa. In a simpliciter suit for injunction, the relief of injunction comprises the main relief but when a relief which is of a substantial nature viz., possession or declaration is added to it, the relief of injunction which was hitherto the main relief scales down to the position of a consequential relief. There .are ample distinctive features in between main and ancillary reliefs. Apart from being essentially paramount and predominant, the main relief is a substantial in nature forging on substantive and vested rights. Possessory relief is the basis and any form of injunction - either mandatory or perpetual - springs from it. To see if a relief is subsidiary or main, the real test is to see whether one relief can be granted without the other. Here in this case in view of the very facts alleged, either of the reliefs of injunctions cannot be granted unless the petitioner seeks possession. Therefore, the possessory relief becomes dominant and constitutes as the main. Simply because initially the suit is filed for injunction and the other reliefs of declaration or possession have been added in view of changed circumstances or warranting circumstances on the appearance of the defendant, the relief of injunction does not remain as the main relief making the other reliefs of declaration or possession as ancillary thereto. In fact, in any given case, the reliefs of declaration and possession necessarily constitute the main reliefs and these reliefs would always go with the other incidental reliefs of injunction either perpetual or mandatory depending on the facts of each case. Subsequent addition of any such substantial relief would not make it ancillary to the relief already existing merely because such relief was the initial foundation for the suit. The petitioner-plaintiff having filed the suit initially for injunction and in view of the alleged subsequent acts of encroachment and construction, the reliefs of possession and mandatory injunction were added lateron. These reliefs, even according to the plaintiff, are in fact based on the subsequent cause of action. In these circumstances, it has to be held that the relief of possession constitutes the main relief and any other reliefs of injunction either perpetual or mandatory fall behind the same and become ancillary to the same.

RELIEF OF POSSESSION

In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, this Court while dealing with a similar issue held: “……It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.”

In Deo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966 SC 359, this Court dealt with a similar issue, and considered the provisions of Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the plaintiff in a suit for declaration of title to property, to claim the possession. While laying down such a proposition, this Court placed reliance upon the judgments of Privy Council in Sunder Singh Mallah Singh Sanatan Dharam High School Trust v. Managing Committee, Sunder Singh Mullah Singh Rajput High School, AIR 1938 PC 73; and Humayun Begam v. Shah Mohammad Khan, AIR 1943 PC 94.

HISTORY OF LAW ON SPECIFIC RELIEF

HONBLE JUSTICE Dr. B.S. CHAUHAN & HONBLE JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA in the case of Venkataraja & Ors. vs Vidyane ... Decided on 10 April, 2013:- The very purpose of the proviso to Section 34 of the Act 1963, is to avoid the multiplicity of the proceedings, and also the loss of revenue of court fees. When the Specific Relief Act, 1877 was in force, the 9th Report of the Law Commission of India, 1958, had suggested certain amendments in the proviso, according to which, the plaintiff could seek declaratory relief without seeking any consequential relief, if he sought permission of the court to make his subsequent claim in another suit/proceedings. However, such an amendment was not accepted. There is no provision analogous to such suggestion in the Act 1963.

NO PROHIBITION UPON A PARTY FROM SEEKING AN AMENDMENT IN THE PLAINT TO INCLUDE THE UNSOUGHT RELIEF, PROVIDED THAT IT IS SAVED BY LIMITATION

HONBLE JUSTICE Dr. B.S. CHAUHAN & HONBLE JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA in the case of Venkataraja & Ors. vs Vidyane ... Decided on 10 April, 2013:- A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC 2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743). In Muni Lal v. The Oriental Fire & General Insurance Co. Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory decree, and observed that “mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the plaintiff to seek both reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief.”

SUIT FOR DECLARATION WITHOUT SEEKING POSSESSION EXPLAINED

HONBLE JUSTICE Dr. B.S. CHAUHAN & HONBLE JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA in the case of Venkataraja & Ors. vs Vidyane ... Decided on 10 April, 2013:-

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)

Legal maxim, ‘Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man’. This Court dealt with the said maxim in Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084, and explained its scope, observing: “….where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake.”

Corporation Of The City Of ... vs M. Papaiah And Anr. AIR 1989 SC 1809, It is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion……

In Deo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966 SC 359, this Court dealt with a similar issue, and considered the provisions of Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the plaintiff in a suit for declaration of title to property, to claim the possession.

In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957, Court while dealing with a similar issue held: “……It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.”

A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC 2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743).

In Muni Lal v. The Oriental Fire & General Insurance Co. Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory decree, and observed that “mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the plaintiff to seek both reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief.”

THE JURISDICTION TO GRANT RELIEF IN CIVIL SUIT NECESSARILY DEPENDS ON THE PLEADINGS, PRAYER, COURT FEE PAID, EVIDENCE LET IN ETC

Bachhaj Nahar vs. Nilima Mandal and Anr (2008) 17 SCC 491. It is relevant to extract the principles enunciated in para 23 of the judgment which are as follows. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery of  possession of property `A', court cannot grant possession of property `B'. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc. In those circumstances, while reiterating the principles laid down above, we hold that the same are not applicable to the case on hand.

MERE DECLARATION WITHOUT SEEKING POSSESSION NOT MAINTAINABLE

Supreme Court in Meharchand Das v. Lal Babu Siddique reported in (2007) 14 SCC 253 for the purpose of showing that the plaintiff if not in possession of the property, the suit for a mere declaration will not be maintainable.

Supreme Court in Vinay Krishna v. Keshav Chandra reported in 1993 Supp (3) SCC 129, wherein Section 42 of the Specific Relief Act, 1877 was considered. It was held that if plaintiff was not in exclusive possession of the property because there are two other persons and tenants were in occupation and the failure of the plaintiff to claim a relief of possession, the discretion of the court in granting a decree of declaration is barred.

WHEN TITLE DENIED DECLARATORY RELIEF TO BE SOUGHT

Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Ors. (2008) 4 SCC 594, A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration.

Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Ors. (2008) 4 SCC 594, In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally. …. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

Sulochana Amma vs. Narayanan Nair 1994 (2) SCC 14, Court observed that a finding as to title given in an earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of title. This was on the premises that in some suits for injunction where a finding on possession solely depended upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res judicata. This Court observed : "Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata."

Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer 2000 (3) SCC 350, "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title."

Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Ors. (2008) 4 SCC 594, The position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (2005 (6) SCC 202.)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

RELIEF CLAIMED ON SPECIFIC GROUNDS TO BE PROVED AND ALSO ISSUES INVOLVED THEREIN ALSO TO BE PROVED NO NEW CLAIM CAN BE TAKEN IN TRIAL

Bhagwati Prasad v. Shri Chandramaul AIR 1966 SC 735, 1966 2 SCR 286 where the Court observed as follows:- "There can be no doubt that if a party asks for a relief on a clear and specific grounds, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new........But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though in directly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ?"

Sheodhar Rai & Others v. Suraj Prasad Singh & Others . AIR 1954 SC 758 In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by in its pleadings.

T.L. Nagendra Babu vs Manohar Rao Pawar ILR 2005 KAR 884 Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.

FAILURE TO PROVE DEFENCE DOES NOT AMOUNT TO ADMISSION

Apex Court's judgment in the case of UNION OF INDIA vs. IBRAHIM UDDIN reported in 2013 (4) KCCR SN 308 (SC), wherein it is held that the failure of a party to prove its defence does not amount to admission nor does it reverse or discharge the burden of proof of plaintiff. He sought to draw support from the said authority to advance the contention that just because the defendants have not adduced the evidence, the appellant - plaintiffs' suit cannot be decreed.

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