|Justice A.K. Ganguly|
Supreme Court of India
The Supreme Court in Shehla Burney Vs. Syed Ali Mossa Raza has reiterated that no relief can be granted against a party unless it has been specifically claimed in the suit or petition, as mandated by Order VII Rule(s) 5 & 7 of the Code of Civil Procedure. The Supreme Court while relying on judicial authorities has held as under;
18. It is clear that in the amended plaint the prayer is against the defendant, therefore, the prayer is only against defendant no.1 and not against defendant no.2. In a case where prayer is not made against a particular defendant, no relief possibly can be granted against him. Reference in this connection can be made to the provisions of Order VII of the Code of Civil Procedure. In this connection, Order VII, Rule 5 is relevant and is set out below:-
"5. Defendant's interest and liability to be shown. - The plaint shall show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiff's demand."
19. Order VII, Rule 7 of CPC is also relevant and which is also set out below:-
"7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and 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."
20. In Sheikh Abdul Kayum and others v. Mulla Alibhai and others [AIR 1963 SC 309] it has been held by this Court that it does not lie within the jurisdiction of a Court to grant relief against defendant against whom no reliefs have been claimed [See paragraph 13, page 313 of the report].
21. Same propositions have been reiterated recently by a judgment of this Court in Scotts Engineering, Bangalore v. Rajesh P. Surana and others [(2008) 4 SCC 256]. In paragraph 10 at page 258 of the report this Court found that even after the appellant was arrayed as defendant 6, the plaintiff did not care to amend the plaint except making the appellant as defendant 6. No relief was claimed against defendant 6. If we follow the said principle in the facts of this case we have to hold that no relief having been claimed against defendant 2, who is the predecessor-in- title of the present appellant, no relief can be granted against the present appellant.
22. The objection of the respondent that such point is taken only before this Court and not at an earlier stage of the proceeding cannot be countenanced since this point goes to the root of the matter and for consideration of this point no further investigation in the facts of the case is necessary. This point actually appears from the admitted records of the case and this point is based on the provisions of the Code of Civil Procedure.
23. In this connection principles which have been laid down by Lord Sumner in Surajmull Nagoremull v. Triton Insurance Co. Ltd., [52 Indian Appeals 126] are very pertinent. The learned Law Lord summarized the proposition so lucidly that we should do nothing more than quote it:
"...No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset:"
24. The aforesaid propositions have been quoted with approval by this Court in Badri Prasad and others v. Nagarmal and others reported in AIR 1959 SC 559 at page 562.
25. Similar views have been expressed by this Court again in Tarinikamal Pandit and others v. Perfulla Kumar Chatterjee (dead) by L.Rs. [AIR 1979 SC 1165]. After considering several decisions, including the one rendered in Badri Prasad (supra) this Court held as follows:-
"...As the point raised is a pure question of law not involving any investigation of the facts, we permitted the learned counsel to raise the question...."
(para 15 at page 1172)
26. In our view this point is sufficient to hold that the judgment of the Hon'ble High Court is not sustainable in law.