MANU/WB/1477/2018

Equivalent/Neutral Citation: (2019)3WBLR(C al)93

IN THE HIGH COURT OF CALCUTTA

S.A. No. 424 of 2016
Decided On: 10.12.2018
Jamaluddin Mollah Vs. Sk. Mohammad Aslam
Hon'ble Judges/Coram:
Sahidullah Munshi, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Asit Baran Routh, Surajit Roy and Tuhin Subhra Raut
For Respondents/Defendant: Aniruddha Chatterjee and Krishnendu Bera
JUDGMENT
Sahidullah Munshi, J.
1 . This appeal is at the instance of the defendant against the judgment of affirmation
dated 10th February, 2016 passed by the learned District Judge, Howrah, in Title Appeal
No. 157 of 2015 affirming the judgment and decree dated 29th August, 2015, passed by
the learned Civil Judge (Junior Division), 4th Court, Howrah, in Title Suit No. 250 of
2012. The present appeal was admitted under Order XLI, Rule 11 of the Code of Civil
Procedure only on the substantial question of law "whether in absence of relief claimed
in the plaint, the Courts below were justified in passing a decree for eviction in favour
of the plaintiff and/or maintaining the said decree in appeal by the learned first
Appellate Court." The respondent as plaintiff filed a suit on 07.08.2012 for eviction of
the defendant from the suit premises. The learned trial Court noted down the fact as per
pleading in the plaint that - "Jamaluddin Mollah, the defendant was inducted as
premises tenant by Sk. Hasem Ali, father of the plaintiff at the rate of Rs. 132/- in
respect of one shop room exclusive of electric charges payable by English calendar.
Plaintiff's father gifted to him a bastu land measuring 12 sataks together with a
structure including the shop room by registered deed of gift No. 2503 of 2000. After the
execution of the gift deed, plaintiff became the owner and the landlord of the defendant.
Though, plaintiff became the landlord, his father continued to collect monthly rent from
the defendant by granting rent receipts at the rate of Rs. 212/- per month. Defendant
defaulted in payment since the month of January, 2012. Plaintiff asked the defendant to
pay rent repeatedly but he did not pay heed rather, insulted the father of the plaintiff.
Plaintiff required the shop room for his own use and occupation as well as for his
family. Accordingly, a notice of eviction dated 15.06.2012 was sent by registered post
with A.D. through Lawyer to vacate the premises and deliver possession on the expiry
of July, 2012. Defendant received the notice with signature. In spite of receipt of the
said notice, defendant did not vacate the suit property and overstayed thereat which is
unlawful and as a result, the defendant continued to occupy the suit premises as a
trespasser. Since the defendant did not quit and vacate the suit premises, plaintiff filed
the suit on the basis of the cause of action which arose on 01.09.2012.
2 . As recorded by the learned trial Court, the defendant contested the suit by filing a
written statement on 27.02.2013. The defence case, as per written statement as

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recorded by the learned trial Court, is as follows:
i. The plaintiff has no cause of action and, therefore, no right to sue;
ii. The suit was defective for non-joinder and misjoinder of party;
iii. There is no contractual relationship between the plaintiff and the defendant;
iv. The defendant is not a tenant under the plaintiff;
v. Description of the suit property is wrong;
vi. There is no agreement between the plaintiff and the defendant at any point
of time;
vii. Defendant is not a defaulter and since the inception of tenancy has been
paying rent regularly;
viii. Notice to quit was not served properly and the same was defective,
incorrect, improper, unjust as the termination is not made by the original
landlord and as a result, the suit be rejected with cost.
3 . Save and except what has been admitted by the defendant, he denied all the other
facts narrated in the plaint. It has been averred by the defendant that there was no
agreement and/or contract between the defendant and the plaintiff rather, there was an
agreement with Hasem Ali and, therefore, plaintiff was not entitled to any manner of
relief. The defendant stated that the second floor in the building is totally vacant and on
the ground floor, there are five rooms lying vacant and hence, the question of
reasonable requirement is baseless and mere desire.
4 . On the basis of the pleadings available in the plaint and the written statement, the
learned trial Court framed the following issues:
1. Is the suit maintainable in its present form and law?
2. Has the plaintiff any cause of action to file this suit?
3. Is the defendant a defaulter in payment of rent?
4. Is the suit property reasonably required by the plaintiff?
5. Is the notice for ejectment of the defendant from the suit property properly
served?
6. Is the ejectment notice valid and legal?
7 . Is the suit barred by the Law of Limitation or any other Law for the time
being in force in the country?
8. Is the plaintiff entitled to get the reliefs as prayed for?
9. To what other relief or reliefs, if any, is the plaintiff entitled to as per law?
5. Considering the discussion while dealing with the respective issues, the learned trial
Court came to the finding that the plaintiff successfully proved his case for lawful
eviction of defendant.

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6 . On the question of maintainability of the suit, the learned trial Court held that the
suit is maintainable in the form it was presented. Learned trial Court has also given its
finding holding that the plaintiff was entitled to get reliefs as prayed for. Ultimately, the
suit has been decreed holding that the plaintiff is entitled to get a decree for eviction
and the defendant was liable to quit and vacate the suit premises by 120 days. As it
appears on scrutiny of the judgments of both the Courts below, the tenanted room was
reasonably required by the landlord and for which notice was served to quit and vacate
the same whereby the defendant was asked to vacate the suit premises. The tenancy
was governed under the Transfer of Property Act. Notice was served under Section 106
of the T.P. Act. It was the case of the plaintiff that the tenancy was governed by a
contractual tenancy and/or registered lease and by efflux of time, the tenancy came to
an end. Therefore, the defendant was liable to quit and vacate the premises as per
notice issued by the plaintiff. Against the judgment and decree passed by the learned
trial Court, an appeal was preferred and the leaned Appellate Court below also affirmed
the judgment and decree passed by the learned trial Court holding that the plaintiff was
entitled to a decree for eviction. The very short question arises in this matter as to
whether in absence of any prayer made by the plaintiff in the suit for eviction whether
he is entitled to a decree as passed by the learned Courts below.
7 . The substantial question of law is also confined to question only on this point.
Therefore, save and except this point it is unnecessary to go into details of this case.
8 . It is undisputed that no prayer is available on the plaint filed by the plaintiff. The
plaintiff has only mentioned in paragraph 10, the concluding paragraph of the plaint -
"That for the purpose of jurisdiction and court fees payable the suit is valued at Rs.
2644.00 (Rupees Two Thousand Six Hundred Forty Four) only out of which the relief for
eviction and khas possession is valued at Rs. 2544/- (Rupees Two thousand five
hundred forty four) only and the relief for mesne profits is valued at Rs. 100/- (Rupees
One hundred) only tentatively and appropriate amount of court fees is paid thereon and
the plaintiff undertakes to file additional court fees as and when the Learned court will
direct the plaintiff for the same after the final assessment and ascertainment of the total
court fees."
9. From the averments in the plaint and the written statement as also the evidence led
in support thereof, the learned Courts below came to a definite finding that the suit filed
by the plaintiff was for ejectment of the defendant and plaintiff was able to prove the
same and as a result thereof, the suit was decreed. The question whether in absence of
prayer made, the judgments and decrees passed by the Courts below are sustainable in
law or not.
10. It is, however, pertinent to point out that after the defendant lost in the learned
trial Court preferred an appeal but at that point of time also it was not agitated before
the first Appellate Court that the judgment and decree passed by the trial Court was not
maintainable in view of absence of prayer. Therefore, the first Appellate Court below
has also no occasion to deal with the question which is now raised in the second
Appellate Court. All other questions have been dealt with by the first Appellate Court
and on a careful consideration of the pleadings and evidence and the finding made
thereon by the trial Court, affirmed the judgment and decree passed by the trial Court.
11. Mr. Routh, learned Advocate appearing for the appellant, has cited the following
decisions to submit that in absence of prayer in the plaint the plaintiff is not entitled to
get any decree for eviction as sought for. The decisions cited by Mr. Routh are as
follows:

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 • Om Prakash & Ors. Vs. Ram Kumar & Ors., reported in MANU/SC/0101/1991 :
(1991) 1 SCC 441;
• General Motors (India) Pvt. Ltd. Vs. Ashok Ramnik Lal Tolat & Anr., reported
in MANU/SC/0919/2014 : 2015 SAR (Civil) 152;
• State of Uttarakhand & Anr. Vs. Mandir Sri Laxman Sidh Maharaj, reported in
MANU/SC/1180/2017 : 2017 SAR (Civil) 1075; and
• National Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad & Ors.,
reported in MANU/SC/1028/2011 : AIR 2012 SC 264.
12. In the case of Om Prakash & Ors. (supra), one Puran Chand, respondent no. 2 was
the tenant in possession of a shop building owned by Smt. Parmeshwari Devi. An
application was filed by Parmeshwari Devi against her son-in-law, Ram Kumar, under
Section 13(2) of the Act for ejectment on the ground of non-payment of rent alleging
that Ram Kumar was in possession of the shop in question as tenant. While Ram Kumar
conceded the claim, Puran Chand got himself impleaded in the proceeding and
contested the matter asserting that he was the direct tenant in possession of the
building and there had been no arrears of rent. The Controller dismissed the application
finding that Ram Kumar was not the tenant and respondent no. 2 is in possession as
tenant and holding the view that the landlord could not be allowed to seek an ejectment
order through dubious means by arraying only the person with whom there existed no
relationship as landlord and tenant. The appellate authority confirmed the order. The
revision preferred by the landlord was dismissed by the High Court. The appellants are
the legal representatives of Smt. Parmeshwari Devi. In the Hon'ble Supreme Court, it
was contended by the appellants that the landlord/appellants were not required to
specifically allege that the respondent no. 2 was the tenant or that he defaulted
payment of rent and seek an order of ejectment against him by an amendment of the
application for granting such relief and, therefore, the view taken by the High Court to
the contrary was erroneous. In such background of the matter the Hon'ble Apex Court
held that when the tenant is not proceeded against in a particular manner and an
application is made against one who is neither the tenant, nor the person in possession,
the Controller is justified in rejecting the application. In that context, the Hon'ble Apex
Court held that the party cannot be granted relief which he has not claimed, meaning
thereby that eviction not sought for against a person and not making them party is not
entitled to the grant of relief. The case is not applicable in the facts and situation of the
present case. The ratio in the decision is not applicable to the case at hand.
13. In the case of General Motors (India) Pvt. Ltd. (supra) the Hon'ble Apex Court,
while allowing the appeals and setting aside the order of the National Commission, held
that in order to get relief claim has to be specifically pleaded. In that proceeding reliefs
were sought for in the plaint but the one which was claimed further, was not
mentioned. That is to say, nothing was averred in the complaint about the suffering of
punitive damages by the other consumers, nor the appellant was aware that any such
claim is to be made by it. Since the appellant had no notice of the claim in the fact
circumstances of the case referred to by the Hon'ble Supreme Court, the Hon'ble
Supreme Court held that in absence of specific plea there was no occasion for the other
party to deal with the allegations and to lead evidence to controvert the same.
Therefore, in such background, the Hon'ble Supreme Court held that claim has to be
specifically pleaded. In the case at hand, the landlord/plaintiff made his pleading and
sum and substance emerges from the pleading that he wanted ejectment of the tenant
from the suit premises. The suit premises has also been described in the plaint and the

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defendant has not made any whisper in the written statement that he had no knowledge
about the notice of ejectment. At least this was not proved before the Court that no
notice was received by the defendant rather, the plaintiff was able to prove that the suit
was maintainable both in substance and in form. Therefore, this judgment also does not
help Mr. Routh's client to contend that the plaintiff was not entitled to any relief in
absence of prayer in the plaint.
14. In State of Uttarakhand & Anr. (supra), the Hon'ble Apex Court held-
"Neither there were any pleadings nor any issue much less evidence to prove
the adverse possession on land and for grant of any easementary right over the
well. The Courts below should have seen that no declaration of ownership
rights over the suit property could be granted to the plaintiff on the strength of
"adverse possession" (see Gurdwara Sahib vs. Gram Panchayat Village Sirthala
& Anr. MANU/SC/0939/2013 : (2014) 1 SCC 669. The Courts below also should
have seen that courts can grant only that relief which is claimed by the plaintiff
in the plaint and such relief can be granted only on the pleadings but not
beyond it. In other words, courts cannot travel beyond the pleadings for
granting any relief. This principle is fully applied to the facts of this case
against the plaintiff."
1 5 . The Hon'ble Apex Court made it clear that relief can be granted only on the
pleadings but not beyond it and it was also pointed out that since the case was made
out for adverse possession, no prayer was made by the plaintiff for a declaration to that
effect and further by referring to Gurdwara Sahib (supra). The Hon'ble Apex Court
pointed out that plaintiff cannot take the plea of adverse possession which cannot be
used as a sword but can only be used as a shield.
16. Even if such prayer is made, the same could not have been granted. This judgment
does not help Mr. Routh rather, supports the contention of the plaintiff/respondent who
specifically pleaded in his plaint regarding ejectment and led evidence and, ultimately,
the Courts below accepted the plea raised in the plaint and held that evidence was
sufficient to decree the suit.
17. In National Textile Corporation Ltd. (supra), the Hon'ble Apex Court held that suit
was not maintainable as it was bad for non-joinder of necessary parties and, therefore,
suit was not maintainable as it did not meet the requirement of law. The Hon'ble Apex
Court held that appellant ought to have taken a plea in the written statement that it was
merely an agent of the Central Government. Thus, the suit against it was not
maintainable. The Hon'ble Apex Court held that it is a settled legal position that an
agent cannot be sued where the principal is known. But in the said case, the appellant
did not take the plea before either of the Courts below. According to the Hon'ble Apex
Court, in view of Order VIII, Rule 2, C.P.C., the appellant was under an obligation to
take a specific plea to show that the suit was not maintainable which it failed to do so.
Therefore, the appeal was dismissed. This decision also does not help at all Mr. Routh's
client. Plea in a plaint or a written statement and the prayer is totally different.
18. Mr. Chatterjee, appearing for the plaintiff/respondent, has relied on the following
decisions:
• Bhagwati Prasad Vs. Chandramaul, reported in MANU/SC/0335/1965 : AIR
1966 SC 735;
• Corporation of the City of Bangalore Vs. M. Papaiah & Anr., reported in

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 MANU/SC/0147/1989 : AIR 1989 SC 1809;
• I.L. Janakirama Iyer & Ors. Vs. P.M. Nilakanta Iyer & Ors., reported in
MANU/SC/0352/1961 : AIR 1962 SC 633; and
• Kuldeep Singh Vs. Ganpat Lal & Anr., reported in MANU/SC/0195/1996 : AIR
1996 SC 729.
1 9 . The decision in the case of Bhagwati Prasad (supra) arose from a decree for
ejectment and for a direction for payment of future mesne profits or damages. The said
decision arose from a decree passed by the trial Court for ejectment of the
defendant/tenant. In the ejectment suit, the defendant admitted the title of the plaintiff
in regard to the plot and pleaded that he was to remain in possession of the house until
the amount spent by him in its construction was returned by the plaintiff. The plaintiff
led evidence about the tenancy set up by him and the defendant led evidence about the
agreement on which he relied. Both the pleas were clear and specific and the common
basis of both the pleas was that the plaintiff was the owner and the defendant was in
possession by his permission. In such a case, the relationship between the parties
would be either that of landlord and tenant or that of an owner of property and a person
put into possession of it by the owner's licence. No other alternative was logical or
legitimately possible. In such background, the Hon'ble Apex Court held that in absence
of proof of tenancy and of defendant's agreement, the conclusion of the High Court in
first appeal that the defendant was in possession of the suit premises by the leave and
licence by the plaintiff, did not cause prejudice to the defendant and there was no error
of law if the decree for ejectment was passed. in the said case, the defendant admitted
that the land over which the house situated, belonged to the plaintiff. He, however,
pleaded that the house had been constructed by the defendant and at his own cost and
that too, at the request of the plaintiff, because the plaintiff had no fund to construct
the building on his own. Having constructed the house at his own cost, the defendant
went into possession of the house on condition that the defendant would continue to
occupy the house until the amount spent by him on the construction was repaid to him
by the plaintiff. According to the defendant, he had spent a lot of money on the
construction of the house. Based on this agreement, the defendant resisted the claim
made by the plaintiff for ejectment as well for rent. On these pleadings, the learned trial
Judge, framed issues, disbelieved defendant's version in regard to construction of the
house and found that the agreement set up by him in that behalf on the basis that he
spent money on the construction of the house himself, had not been established. The
learned trial Judge also disbelieved the plaintiff's case about the agreement as to rent
on which the plaintiff relied. According to the trial Judge, the defendant had admitted
the ownership of the plaintiff, and having regard to the pleadings and the evidence
adduced by the parties, he came to the conclusion that the relationship of landlord and
tenant had been proved. Having made this specific basic finding, the learned trial Judge
held that the suit was competent and came to the conclusion that the plaintiff was
entitled to a decree for ejectment as well as for rent. In that background, the Hon'ble
Apex Court held-
"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 indirectly or

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 even obscurely in the issue, 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? If it appears that the parties did not know that the matter
was in issue at the trial and one of them has had no opportunity to lead
evidence in respect of it, that undoubtedly would be a different matter. To allow
one party to rely upon a matter in respect of which the other party did not lead
evidence and had had no opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice to one party, the Court cannot
do injustice to another."
20. The fact of the case has a matching similarity with our case at hand where sum and
substance of the pleading was for ejectment of the tenant. Plaintiff made his pleading in
the plaint. Defendant filed written statement and exercised his option to controvert the
averments made in the plaint. Plaintiff led evidence in support of ejectment. Defendant
also took the opportunity to controvert the plaint case. Therefore, it is not something
foreign to the defendant or that the plaintiff has led evidence in support of a plea which
was not taken in the plaint, nor is it a case that the defendant was taken by surprise to
argue before the Courts below praying for his ejectment. This is a decision of Larger
Bench of the Hon'ble Supreme Court and nothing could be shown by Mr. Routh that the
decision has been reversed by a subsequent Larger Bench. Therefore, the ratio in the
decision is applicable as a binding precedent.
21. In Corporation of the City of Bangalore (supra), it was held that foundation of the
claim by plaintiff was title which was pleaded in the earlier part of the plaint for
deciding the nature of the suit. The entire plaint has to be read and not merely the relief
portion. Therefore, the ratio in this judgment also is understood to have direct
application in the fact situation of the present case. Paragraph 4 of the said decision is
relevant and is set out below:
"4. So far the scope of the suit is concerned, a perusal of the claim of the
plaintiffs is the title which they have pleaded in express terms in paragraph 2 of
the plaint. It has been stated that after cancelling the acquisition of the suit
property for a burial ground the land was transferred to Guttahalli Hanumaiah
under G.O. No. 3540 dated 10.6.1929 on payment of upset price. In paragraphs
3 and 5 the plaintiffs have reiterated that the first plaintiff was the owner-in-
possession. 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, and the plaint in the
present case does not leave any manner of doubt that the suit has been filed for
establishing the title of the plaintiffs and on that basis getting an injunction
against the appellant Corporation. The court fee payable on the plaint has also
to be assessed accordingly. It follows that the appellant's objection that the suit
is not maintainable has to be rejected. The additional Civil Judge, who heard
the appeal from the judgment of the trial court, examined the question of
plaintiffs' title and rejected their case. The question of possession was also
separately taken up, and it was found that the plaintiffs had failed to prove their
possession until 24.8.1973 when they allege that the appellant Corporation
trespassed. Accordingly, the appeal was allowed and the suit was dismissed."
22. In I.L. Janakirama Iyer & Ors. (supra) the Hon'ble Apex Court held that construction
of the plaint is material and a decision in a proceeding depends on the construction of

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the plaint. The Hon'ble Apex Court came to the conclusion that Court must have regard
to all the relevant allegations made in the plaint and must look at the substance of the
matter and not its form. To consider the relief sought for, the Hon'ble Apex Court has
also considered the Court fee paid by the plaintiff on the plaint. The dispute arose in the
case whether the plaintiff sued for removal of a defect in a trust suit and the
appointment of an Administrator or for recovery of possession. The Hon'ble Apex Court
held that on consideration of the plaint averment this is to be taken into consideration
what was the suit for and, accordingly, Court can give reliefs. Paragraphs 12 and 13 are
relevant for our purpose and those are set out hereinbelow:
"12. The decision of this question would naturally depend upon the construction
of the plaint. Is the claim made in the plaint one of declaration, or is it a claim
for possession of immovable properties? The plaint sets out all the material
facts which constitute the background to the present litigation, marks material
allegations in respect of all the alienation impeached in the plaint, and by
paragraph 35 it prays, inter aha, that schedules I to VII-A and should be
adjudged as still impressed as trust imposed on them by the deed of August 26,
1936, and direct their re-sale. That is cl. (c) of paragraph 35. By cl. (d) it is
prayed that the Court should order the administration of the trust by removing
defendant 7 if need be and appointing an administrator or officer of court to
realise the amounts mentioned in cl. (a), (b) to recover possession. and re-sell
the properties referred to in paragraph (c), (3) to distribute the proceeds
rateably amongst the unsecured creditors and perform such other acts and
functions as may be necessary to 6 effectuate the trust in question. The learned
Attorney General contends that cl. (c) asks for adjudication or declaration that
the properties in question are impressed with the trust and that is no mere than
a declaration, and according to him cl. (d) prays for the appointment of an
administrator to realise the amounts and to recover possession of the properties
and re-sell them. He suggests that on a fair construction of cl. (d) all that the
plaintiffs pray for is the removal of defendant 7 and the appointment of an
administrator with power to realise the amounts specified and to recover
possession of the properties indicated and to re- sell them. This is not a claim
that possession should be delivered to the administrator in the present suit. It
may be conceded that if read by itself alone cl. (d) may be capable of the
construction which the learned Attorney-General seeks to put on it; but in
construing the plaint we must have regard to all the relevant allegations made
in the plaint and must look at the substance of the matter and not its form. It is
significant that the plaintiffs have valued the suit for the purpose of court fee
and jurisdiction at Rs. 23,745 and this valuation includes several items ill
respect of different properties valued under s, 7(5) of the Court Fees Act. The
valuation made in respect of the different items of properties under s. 7(5) is
obviously and clearly valuation made on the footing that a claim for possession
is made. In fact the Plaint specifically avers that the plaintiff valued the suit for
possession covered by covered and D-2 under. 7(5) as indicated in the plaint.
Thus there can be no doubt that the plaint has been valued on the basic that a
claim for possession of the properties covered by the schedules Is intended to
be made. Besides, it is also significant that in regard to the claim made be the
plaintiff in respect of the transfer in favour of defendant 14 his sons defendant
18 to 24 have been joined specifically on the ground that since the plaintiffs
claim possession of the said property the said defendants are necessary parties
as it is found that they are in possession of the said properties. In other words,
the joinder of defendants 18 to 24 to the present suit is based solely on the
ground that a claim for possession is made in the plaint and defendants 18 to

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 24 being in possession are necessary parties to the suit. Therefore, in our
opinion, reading the plaint as a whole it would be unreasonable to construe cl.
(d) in paragraph 35 in the manner suggested by the learned Attorney-General.
The prayer which the clause really purports to make is that as administrator
should be appointed and that an order should be passed against the respective
defendants asking them to deliver possession of the properties to the said
administrator. If that we so the plaint cannot be construed as one in which a
mere claim for declaration is made. It is a plaint in which a declaration is no
doubt claimed but based on the said declaration or adjudication a further claim
for possession to the administrator is also made. The result, therefore, is that
the argument that the prayer made in the plaint attracts Art. 120 must be
rejected.
13. The next continuation urged is that the plaintiffs cannot sue for possession
but must confine themselves only to a claim for declaration. It is not disputed
by the learned Attorney-General that in regard to public charitable trusts the
beneficiaries are entitled to sue for setting aside alienations of the trust
properties improperly effected by the trustees, and to ask for the restoration of
possession of the said trust properties to the trustees newly appointed. Indeed,
there is ample judicial authority in support of this position. In A. Subramania
Iyer v. P Nagarathna Naicker, it was held by the Madras High Court that in a suit
by the worshippers of a temple to have the alienation of the trust property by
some of the defendants, trustees to the other defendants declared invalid and
for possession to the trustees, the proper decree to be made if the Court be of
the opinion that the alienation is invalid is to decree possession to those
defendants who are trustee. It was further held that the trustees need not be
referred to a separate suit for the purpose. In masjid Shahid Ganj v. Shiromani,
gurdwara Parbandhak Committee, Amritsar the Privy Council has recognised this
right in these words: 'The right of a Muslim worshipper may be regarded as an
individual right, but what is the nature of the right It is not a sort of easement
in gross, but an element in the general right of a beneficiary to have the waqf
property recovered by its proper custodians and applied to its proper purpose.
Such an individual may, if he sues in time, procure the ejectment of a
trespasser and have the property delivered into the possession of the Mutawali
or of some other person for the purposes of the waqf ".
23. In Kuldeep Singh (supra), the appeal before the Hon'ble Apex Court was filed by a
tenant out of a suit for eviction filed by the respondents under the provisions of
Rajasthan Premises (Control and Rent Eviction) Act, 1950 (hereinafter to be referred to
as the 'said Act'). In the said decision, the learned Single Judge held that the rent for a
particular month became due since the month ends and under the provisions of the said
Act it was made payable by a particular date. But it was only a facility provided to the
tenant to pay the rent by that date and it did not mean that the rent for the month of
October had not become due on November 1, 1982. The special appeal filed by the
appellant against the said judgment of the learned Single Judge was dismissed by the
Division Bench of the High Court by the impugned judgment. It was the contention of
the appellant before the Hon'ble Apex Court that in view of clause (e) of Rule 1 of Order
VII of the Code of Civil Procedure, it was incumbent upon the respondents to set out in
the plaint the facts constituting the cause of action and when it arose and as per the
said requirement the respondents indicated that the cause of action arose on November
1, 1982. The respondents disputed the same. Question arose for non-mentioning of the
date and for non-compliance of Order VII, Rule 1(e) whether the plaintiff will be non-
suited or not. To that effect, the Hon'ble Apex Court expressed its view that-

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 "The object underlying Order VII Rule (1) (e) which requires that the plaint
shall contain the particulars about the facts constituting the cause of action and
when it arose, is to enable the court to find out whether the plaint discloses the
cause of action because the plaint is liable to be rejected under Order VII Rule
11 CPC if it does not disclose the cause of action. The purpose behind the
requirement that the plaint should indicate when the cause of action arose is to
help the court in ascertaining whether the suit is not barred by limitation. Any
error on the part of the plaintiff in indicating the date on which the cause of
action arose would be of little consequence if the cause of action had arisen on
the date on which the suit was filed and the suit was within limitation from the
said date. The error in mentioning the date on which the cause of action had
arisen in the plaint in such a case would not disentitle the plaintiff from seeking
relief from the court in the suit."
24. Ultimately, the appeal was dismissed. This decision is also pat on the point whether
non-mentioning of the date when cause of action arose even if it is apparent on the face
of the pleading, whether the plaintiff should be denied any relief. The Hon'ble Apex
Court held that the plaintiff cannot be non-suited on this ground alone.
25. After admission of the appeal, the plaintiff filed an application for amendment of
the plaint proposing to incorporate the prayer for eviction of the defendant from the suit
premises. That application was numbered as C.A.N. 11356 of 2016. The said application
was extensively heard while hearing this appeal on merit. However, by my order dated
December 5, 2018, I rejected the said application of Mr. Chatterjee's client praying for
amendment of plaint, in view of the substantial question of law which was framed at the
time of admission of appeal and there was no scope to allow the application for
amendment.
26. Adverting to the point that whether the learned trial Court was justified in passing
the decree in favour of the respondent/plaintiff and whether the learned Appellate Court
below was justified in affirming the said decree passed by trial Court, the provision of
Order VII of the Code of Civil Procedure is required to be considered. Order VII deals
with particulars of the plaint. Rule 1 of Order VII says about the particulars to be
contained in plaint. Mr. Routh appearing for the defendant/appellant submitted that the
plaint which was presented before the learned trial Court did not contain the prayer and
therefore, the plaint was not in form as it was required to be done within the meaning
of Rule 1, Order VII of the Code of Civil Procedure.
2 7 . Mr. Routh further pointed out that according to Rule 1(g) the relief which the
plaintiff claims must be shown expressly in the plaint and if such relief is not claimed
Court Cannot grant relief which has not been prayed for. In the context of this argument
advanced by Mr. Routh a distinction is required to be made with prayer and relief
claimed in the suit. In ordinary parlance relief is understood to be a redress or benefit
especially equitable in nature such as an injunction or specific performance that a party
asked before a Court. This may also to be termed as a remedy. Similarly, in ordinary
parlance we understand prayer to be a specific prayer or general prayer. But, ultimately,
prayer means prayer for a relief over specific or in general terms. Therefore, a prayer is
a specific request to the Court for the relief to which he supposes himself entitled on
the case made out. A request addressed to the Court and appearing at the end of a
pleading especially a request for specific relief or damages shortened to prayer or
sometimes it may be termed as demand for relief or request for relief that is the prayer
for relief. The word 'claim' as defined by Black's Law Dictionary a statement that
something yet to be proved is true or the assertion of an existing right or to a legal

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remedy to which one asserts a right. These words in a law suit are used very often and
give more or less the same meaning but they are co-linked with each other. Question
arose whether a party has made a claim meaning thereby that certain assertions have
been made in the pleading asserting a right based on certain disclosed facts whether
can fail if not additionally made in the form of a prayer at the end of the pleading. This
is exactly the prayer in the present case. Under Order VII Rule 1(g) it is one of the
provisions which specifically state that the plaint must contain among other things the
relief which he claims. Mr. Routh in this regard also pointed out Serial no. 9 to the
Appendix 'A' appended to the Civil Procedure Code with regard to the pleadings and
drew attention of this Court to paragraph 6 of the said form, which says about the relief
claimed. However, the said from says about the relief/claim as statements in one of the
paragraph but the form does not prescribe for any special prayer in any special form.
Therefore, it is absolutely hyper technical approach that since no special prayer is made
at the end of the pleading Court is handicapped to decide the case on the basis of the
substance pleaded in the plaint and to give appropriate relief, which has been claimed
in the body of the plaint. In addition it is to be pointed out that Order VII Rule 11 of the
Code makes a provision for rejection of plaint on the grounds mentioned in (a) to (f).
But on perusal of Rule 11 it does not, however, appear that it may be one of the
grounds for rejection of plaint if it is not in compliance with Rule 1(g) of Order VII,
although, it prescribes rejection on the ground of non-mentioning of the cause of action
which is contained under Rule 1(e). Therefore, it is absolutely the discretion of the
legislation to place a bar for maintaining a suit on the grounds which it deemed fit and
proper. We neither can shorten the scope of Order VII, Rule 11, nor can it be broadened
by the judicial pronouncement until and unless the provisions are amended. Since the
legislature has consciously made some bar for non-fulfilment of some of the provision
of Rule 1 under Order VII to attract rejection of plaint and has omitted certain portion to
attract the provision of Order VII Rule 11, the only logical conclusion which can be
drawn is that the defects, if any, occurs for non-mentioning of some of the provisions
under Rule 1 of Order VII namely, Order VII Rule 1(g) in the present case is not so fatal
for which a party can be not suited. The nature of such defect, according to legislature,
is curable and the plaintiff might get opportunity to amend the same, if so necessary
but it does not attract rejection of plaint. In this particular case the defendant having
filed written statement contested the suit, led evidence, contradicting the claim of the
plaintiff cannot be permitted at the second Appellate stage to argue that the defect is so
fatal it cannot be cured and, as a result whereof the decree which has been passed
should be set aside only on this ground. This is an absurd proposition. Had it been so
the defendant could have taken appropriate steps at the earliest so that time was not
wasted, money was not spent and after all valuable time of the Court and the litigants
could have been saved. In this regard we may also take note of the provision of Order
VII Rule 7, which says relief to be specifically stated. The said Rule also says that it
shall not be necessary to ask for general or other relief which may always be given as
the Court may think just to the same extent as if it had been asked for and the same
rule shall apply to any relief claimed by the defendant in his written statement.
Considering such provision of Order VII it can be construed that when a party is entitled
to relief and specific averment is made in the plaint there cannot be any hard and fast
rule that only for absence of any specific prayer a party either plaintiff or defendant
should be deprived of his claim. It is also the settled law that in construing the plaint
the Court must have regard to all relevant allegations in it and must look to the
substance of the matter and in its form as decided by the Hon'ble Apex Court in the case
of Janakirama Iyer and Ors. (supra), as referred to by Mr. Chatterjee, that it cannot be
the form of prayer which matters, but it is the substance thereof which should always
be looked into. It is the rule that ordinarily the Court cannot grant relief to the plaintiff

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on a case of which there was no foundation in the pleadings and which the other side
was not called upon or had no opportunity to meet. But the Court can always give a
decree on the case which the defendant himself makes or on his express admission or
otherwise established through evidence. In my view where the relief prayed for in the
suit is a larger relief and if not case is made out for granting the same but the facts, as
established, justify grant of smaller relief, Order VII Rule 7 permits granting of such
relief to the parties. Therefore, in my view there is no impediment in passing a decree
for eviction of the defendants also even in absence of any specific prayer for eviction
against him when the requisite pleadings for such decree for eviction have been made
in the plaint. We may not be unmindful of a bench decision of our Court in the case of
Nurul Huda Vs. Kira Basu, reported in MANU/WB/0007/1986 : AIR 1986 Calcutta 39,
which decided a case whether reliefs granted by the Court against some of the
defendants for recovery of possession from them, although no specific prayer for
recovery of possession from such defendants were made. The Division Bench of our
Hon'ble High Court held that such a relief can be granted even in absence of any
specific prayer. In view of the discussion made hereinbefore and the principle
underlying Order VII, I am of the clear view that the Courts below have not committed
any error in law in decreeing the suit.
28. The appeal, therefore, fails. Judgment and decree passed by the learned Courts
below are hereby affirmed. In the facts and circumstances of this case, however, there
will be no order as to costs.
29. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the
learned advocates for the respective parties upon compliance of all usual formalities.
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