Order of Remand Upheld to Incorporate Essential Relief of Possession Under Section 34 Specific Relief Act

The plaintiffs (respondents) filed a suit for declaration of title and permanent injunction regarding a 30x60 sq. ft. plot in Bhind, claiming 1/5th share each based on a "Will" dated 09.01.2002

The Trial Court dismissed the suit on 31.07.2017, holding it barred by the proviso to Section 34 of the Specific Relief Act because the plaintiffs were not in possession and had failed to seek the relief of possession

On appeal, the First Appellate Court allowed the plaintiffs’ amendment application under Order 6 Rule 17 of the CPC to include the relief of possession and remanded the matter for fresh adjudication

The defendant (appellant) challenged this remand, arguing a lack of "due diligence" and jurisdictional errors

Whether the First Appellate Court was justified in allowing the amendment of the plaint at the appellate stage to include the relief of possession

Whether the order of remand for fresh adjudication was proper under Order 41 Rules 23 and 23-A of the CPC

The court examined Order 6 Rule 17 of the CPC, which governs the amendment of pleadings, emphasizing the "due diligence" proviso for post-trial amendments and the principle that amendments should be allowed liberally to resolve the real controversy and avoid multiplicity of proceedings

It also considered Section 34 of the Specific Relief Act, 1963, which bars a declaration where the plaintiff, being able to seek further relief (like possession), omits to do so

Procedurally, the court referenced Order 41 Rules 23 and 23-A of the CPC regarding the powers and limitations of an appellate court to remand a case to the trial court

The High Court observed that while the First Appellate Court correctly identified that an amendment for possession was necessary to satisfy the Specific Relief Act, the appellant’s concerns regarding court fees, jurisdiction, and the altered nature of the property were valid

The court noted that the amendment significantly changed the subject matter, yet it prioritized "substantial justice" and the finality of adjudication on merits

Rather than setting aside the amendment, the Court determined that the prejudice to the defendants could be mitigated by granting them the right to file consequential amendments and rebuttal statements. The High Court found that a modified remand was necessary to ensure the Trial Court addresses the new issues of valuation and court fees arising from the added relief of possession

It held that the amendment is permissible to bring the complete controversy before the court

The Court ordered the Trial Court to: (a) permit the appellant to file consequential amendments/written statements; (b) frame additional issues based on amended pleadings; and (c) decide the suit afresh without being influenced by the First Appellate Court's observations

The appeal was disposed of with no order as to costs