SK WAJID ALI Vs. JIGA BIBI

JUDGEMENT

(1.) TITLE suit No. 41 of 1963 was filed in the Court of the Munsif Kendra-para. Originally the suit was valued at Rs 75. The pravers were for a declaration that the disputed land was the plaintiff's occupancy Chandna holding; for confirmation of possession: for a declaration that the defendant had no title or possession therein and for such other reliefs as the plaintiff is entitled to in law and equity. Amongst other defences the valuation of the suit and the insufficiency of Court fee payable were challenged. On 11-9-64 the Additional Munsif held that the market value of the suit land was Rs 4000. Plaintiff was directed to amend the plaint and pay the requisite ad valorem Court fee. Plaintiff amend- ed the plaint and valued the suit at Rupees 4000, but filed an application under Order 33, Rule 1, C. P. C. for permission to sue in forma pauperis. This application was dismissed on 26-7-65 on a finding that the plaintiff was not a pauper and had capacity to pay the ad-valorem Court fee. On 17-4-65 plaintiff filed an application for amendment of the plaint to delete certain reliefs. In that application the plaintiff prayed that the prayers Ka and Kha in the original plaint were to be deleted and in their place a prayer to the effect "that the disputed land and the registered sale deed standing in the name of the defendant are to be declared Benami" is to be inserted, and the original prayer Ga and Gha were to be renumbered as Kha and Ga respectively. In substance, on the basis of amendment the prayer in the plaint is for a declaration that the disputed land and the registered sale deed stood benami in the name of the defendant in which she had no right, title and interest. There is no dispute that the amended prayer is only a declaratory relief. On the basis of this amendment, plaintiff wanted to pav Court fee of Rs. 22. 50 P as the declaratory suit was valued at Rs. 4000. The Court fee paid on the original plaint was Rs 7. 50 P. If the amendment had been allowed plaintiff was to pay a further Court fee of Rs 15 only and not ad-valorem Court fee on Rs. 4000. On 13-9-65 the application for amendment was rejected by the learned Munsif. Against this order the Civil Revision was filed on 22-10-65 No prayer for stay of the suit was made in the civil revision. The trial Court granted Unit to the plaintiff to pay deficit ad valorem Court fee on Rs 4000 on various dates. As it was not ultimately paid, the plaint was rejected on 29-3-66. An application under Order 9, rule 9, C. P. C. , for restoration of the suit was dismissed on 4-4-66 A similar aoplicatior for restoration of the suit under Sec. 151 C. P. C. , was dismissed on 14-7-66 The Civil Revision was admitted on 20-4-66 after the rejection of the plaint

(2.) TWO questions arise in the civil revision.

(3.) THE learned Munsif did not allow the amendent to delete the firrst two reliefs in the original plaint as the nature of the suit would he changed. The view taken by him is contrary to law Even if the amendment was flowed there would he no change in the nature of the suit The averments in the plaint relating to material facts were not altered. Plaintiff's case was that he acquired the disputed land in the name of the defendant. The registered sale deed standing in the name of the defendant was benami and that the plaintiff was in possession. These facts were contested in the written statement. If ultimately the Court finds that plaintiff's versions that the suit land stood benami in the name of the defendant and that the plaintiff was in possession were true, plaintiff's prayer for a mere declaration is tenable and the suit would not fail due to absence of a prayer for consequential relief of confirmation of possession or, in the alternative. for recovery of possession. Section 42 of the old Specific Relief Act would not be a bar in such a rase. If. on the other hand, the Court comes to a conclusion on evidence that the plaintiff' was not in possession, the suit is bound to fail as the plaintiff sought no consequential relief. In either case the nature of the suit is not changed. Only the reliefs are different. Before evidence is gone into and a finding is recorded thereon, Court is not in a position to say that the averments made in the plaint are false and cannot compel the plaintiff to ask for consequential relief. That is a risk which the plaintiff takes and on that basis pays Couri fee. If ultimately the framing of the suit is found to be bad due to absence of consequential relief, which is to be prayed on the facts and circumstances of a particular case the suit is bound to be dismissed. But that is at a much later stage when the Court comes to a conclusion contrary to the averments in the plaint. The learned Munsi: failed to keen in view this legal position and exercised his jurisdiction illegally in rejecting the amendment of the reliefs sought for. Change of reliefs with material averments remaining intact, does not alter the nature of the suit.