EXECUTIVE ENGINEER P W D Vs. NIZARA ENTERPRISE

JUDGEMENT

(1.) A dispute between the Executive Engineer, PWD (Building Division) Dhubri and M/s Nizara Enterprise, a firm registered under the Indian Partnership Act., having its place of business at Dhubri led to institution of Title Suit No. 148/87 by the latter for a declaration and permanent injunction. The suit was decreed by the learned Munsiff No. 2, Dhubri declaring that the bill amount claimed by the plaintiff-respondent for execution of certain items of repairing works should be paid first from the amount received by the appellant from the Government in the month of March, 1987. The Executive Engineer (Defendant No.2) performed an appeal against the said Judgment and decree. The learned Asstt. District Judge vide Judgment dated 12.6.95 dismissed the said appeal and confirmed the judgment and decree passed by the learned Munsiff. Aggrieved thereby, the defendant Executive Engineer has preferred this Second Appeal questioning the legality and propriety of the impugned judgment and decree.

(2.) This court vide order dated 20.11.95 admitted the appeal for the purpose of deciding the following questions of law :

(3.) Learned counsel for the appellant at the very outset assailed the impugned judgment and decree on the ground that the provisions of Section 34 of the Specific Relief Act, 1963, bars a suit for a mere declaration without a prayer for consequential relief which the plaintiff could have asked for. According to him, this is a suit for declaration' of plaintiff s right to get his bills paid from the government allocation given in March, 1987 without any consequential relief by way of directions to make payment of any specific amount. But the plaintiff unfurls a different profile. It would appear from the plaint that the plaintiff had instituted the suit for declaration and also for permanent injunction. The courts below decreed the suit in respect of declaration only. This refusal by the courts below cannot be construed as failure on the part of the plaintiff to ask for consequential relief. The proviso to Section 34 prohibits a court from passing, a decree for a mere declaration only when the plaintiff being able to seek further relief go for a declaration of a right. Since consequential reliefs in the form of permanent injunction etc. have been asked for, it would, therefore, be improper to dismiss the suit invoking the provisions embodies in the proviso to Section 34 of the Specific Relief Act. In my opinion, the prayers incorporated in the plaint negate the contention of the learned counsel for the appellant.