P. C. Pandit, J.
1. Bhagat Singh Plaintiff held 50 shares in the Sat-nam Transport Company Limited, Rohtak, defendant No. 1. Since the Managing Director and Chairman of the Company did not manage the Company properly and committed certain irregularities, the plaintiff filed an application for the winding up of this Company in this Court and this application was fixed for evidence for the 19th August, 1955, On the 5th August, 1955, a compromise was, however, effected between the plaintiff and the Company whereby, Balmokand (defendant No. 2), who is the Chairman of the Company, agreed to get these 50 shares transferred in his favour on paying Rs. 6,000/- to the plaintiff,
On that very date the plaintiff executed a receipt for Rs. 6,000/- towards the price of these 50 shares and also a deed of transfer in favour of Balmokand (defendant No. 2), These two documents and the shares scrips were then handed over to Jai Ram (defendant No. 3). It was agreed that Balmokand would pay Rs. 6,000/- to the plaintiff within a week through Jai Ram who would then hand over these documents to Balmokand and in case Balmokand failed to make the payment, the documents would be returned to the plaintiff. Balmokand did not pay the amount of Rs. 6,0007 - to the plaintiff, who thereupon demanded the return of the document from Jai Ram. Jai Ram, in collusion with Balmokand, evaded the delivery of those documents to the plaintiff.
2. On the above facts, on the 30th August, 1955, the plaintiff brought a suit for a declaration that he was the owner of 50 shares mentioned above, and that the same were not validly transferred in favour of Balmokand. He also prayed for the issue of perpetual injunctions to the effect that (1) defendant No. 2 should not get these shares transferred in his own name, (2) defendant No. 1 should not transfer the said shares in favour of defendant No. 2,and (3) defendant No. 3 be restrained from handing over the documents to defendants Nos. 1 and 2.
3. The suit was resisted by defendants Nos, 1 and 2, who inter alia pleaded that the suit in the present form was not sustainable according to law.
4. On the pleadings of the parties, a number of issues were framed, issue No, 5 being, can the plaintiff not maintain this suit in the present form ?
5. Evidence on all the issues was led by the parties. On the 21st July, 1956, the trial Court passed the following order :
'The plaintiff wants to give up his prayer for injunction. He can give up any relief at any time. Hence, he is permitted to make the proposed amendment. The amended petition of plaint be filed on the 8th August, 1956. Rs. 15/- be paid as costs of this adjournment'.
6. The amended plaint was filed on the 8th August, 1938. In the prayer clause of this amended plaint, it was prayed that a decree for a declaration to the effect that the plaintiff was the legal owner of 50 shares in defendant No. 1 Company and that no valid transfer of the abovesaid shares had been effected in favour of defendant No. 2, be passed. In the amended written-statement, the defendants took the following additional pleas :
'In fact cancellation of the sale of the shares in dispute and the return of the original share certificate regarding the shares etc. are involved and included in the prayer made by the plaintiff. Simply a prayer for declaration in the suit does not change its real nature. Hence, the plaintiff is liable to pay court-fee on Rs. 6,000/-. At any rate, if it is held that the plaintiff's suit is merely a declaratory one and cancellation of the sale of the shares in dispute and the return of the original share certificate etc. are not involved and included therein then this suit in the present form cannot proceed according to law. Proviso to Section 42 of the Specific Relief Act operates as a bar to the plaintiff's suit, because the plaintiff can make a prayer in the suit for the cancellation of the sale of the shares in dispute and the return of the original share certificate etc. and also according to his own statement he can make prayer for the recovery of rupees six thousand'.
7. The following issues were framed on the 10th August, 1956 :
(A) Is the suit after amendment for mere declaration ?
(B) If so, can the plaintiff maintain this Suit for mere declaration ?
(C) If issue No. A is found against the plaintiff is the suit properly valued for purposes of court-fee ?
8. The Senior Subordinate Judge, who tried the case, dismissed the plaintiff's suit, holding that the suit after amendment was merely for a declaration, and that the plaintiff could not maintain the suit for declaration simpliciter by virtue of the proviso to Section 42 of the Specific Relief Act. With regard to issue No. C, the trial Judge held that in view of his decision on issue No. A, this issue did not arise.
9. Aggrieved against the decree of the learned Senior Subordinate Judge, the plaintiff has come here in appeal.
10. Learned counsel for the appellant has argued the following two points :
(1) That the proviso to Section 42 of the Specific Relief Act does not apply to this case and the plaintiff could bring a suit for a declaration without asking for any consequential relief; and
(2) even if the said proviso applied to the case, the suit should not have been dismissed by the learned Senior Subordinate Judge, but the plaint should have been rejected under Order 7, Rule 11, Civil Procedure Code.
11. With regard to point No. 1, it is quite clear from a bare reading of the proviso to Section 42, that it fully covers the present case, because the plaintiff was able to seek further relief than a mere declaration of title which would have been of no consequence to him. He could claim the return of the various documents which he had given to defendant No. 3. He could pray for the issue of the injunctions which he had claimed in his original plaint, and he could also seek the cancellation of the deed of transfer. In my opinion, therefore, the plaintiff could not bring a suit for a mere declaration without seeking further relief.
12. As regards point No. 2, it was argued that this case was covered by Clause (d) of Order 7, Rule 11, Civil Procedure Code, and the plaint should have been rejected and the suit should not have been dismissed as has been done by the Court below.
13. Order 7, Rule 11 (d) Civil Procedure Code, runs as follows :
'The plaint shall be rejected in the following cases :
(d) where the suit appears from the statement in the plaint to be barred by any law'.
14. This clause was considered by a Division Bench of the Oudh High Court in Maqsood Ali v. Deputy Commissioner Bara Banki, AIR 1928 Oudb 495, where it was held;
'Where a suit is not on the face of it barred by any law but proceeds to the stage of arguments, the suit should be dismissed and the plaint should not be rejected under Rule 11'.
15. Sreedam Chandra Bhur v. Tencori Mukherjee, AIR 1953 Cal 222, is another relevant authority where it was observed:
'This clause is attracted only when on the admitted facts as appearing from the plaint itself the suit is 'prima facie' barred. As for instance, when from the statements made in the plaint it appears that the cause of action arose beyond the period of limitation fixed under the statute and no indication is given that limitation has been saved, the plaint may be rejected. Even in such a case an opportunity is to be given to the plaintiff to amend the plaint by setting out an acknowledgment in writing signed by the defendant within the period of limitation if it is so prayed, and that without passing an order for rejection of the plaint.--'Gunnaji Bhavaji v. Makanji Khushal Chand', ILR 34 Bom 250. As was observed in--'Ratan Chand v. Secy, of State', 18 Cal W. N. 1340 : (AIR 1915 Cal 62), action is to be taken under Order VII, Rule 11 of the Code of Civil Procedure, only if there is & clear and specific admission in the plaint from which it follows that the suit is barred. Reference may also be made to the observations of this Court in --'Pran Krishna v. Kripanath', 21 Cal W. N. 209 : (AIR 1919 Cal 755)'.
16. In my opinion, Clause (d) of this rule has no application, because there was no statement in the plaint from which it could appear that the suit was barred by any law. The provisions of Order 7, Rule 11 (d), Civil Procedure Code, are attracted only when from the facts in the plaint itself, the suit is prima facie barred. In the present case the entire evidence of the parties had been closed and the case was fixed for arguments on issue No. 1, namely, what is the value of the suit for purposes of court-fees and jurisdiction, when the plaintiff put in an application for withdrawing his prayer for injunction, and the application was allowed and he was permitted to put in an amended plaint.
After the amended plaint was filed, amended written statement was put in, fresh issues were framed, on which arguments were heard, and the decision under appeal was given. All these facts clearly show that the suit on the face of it was not barred by any law, but it had proceeded to the stage of arguments and it was subsequently dismissed. The present suit, therefore, does not fall under the provisions of Clause (d) of Order 7, Rule 11, Civil procedure Code, and the plaint could not be rejected under the said provisions.
17. However, as I look at the matter, in a case where the plaintiff who is able to sue for further relief, omits to do so and sues for a declaration alone, and the proviso to Section 42 of the Specific Relief Act is attracted, the Court should not dismiss the suit but should give the plaintiff an opportunity to amend his plaint so as to include a prayer for consequential relief. It is then for the plaintiff either to amend the plaint and include the prayer for consequential relief, or face the possibility of the suit being dismissed.
But if after an opportunity to amend the plaint has been given to the plaintiff, he fails to avail of that opportunity, then there is no alternative but to dismiss the suit. This view finds support from Ham Sadan Biswas v. Mathura Mohan Hazra, AIR 1925 Cal 233; Annapurna Dasi v. Sarat Chandra, AIR 1942 Cal 394; Sabdarsinghji v. Ganpatsingji, ILR 14 Bom 395; Manohar Singh v, Parmeshari, AIR 1949 Nag 211; and Mohammad Ismail v. Liyaqat Hussain, AIR 1932 All 316.
18. Applying the above mentioned principles to the present case, I am of the view that before dismissing the suit the trial Court should have given an opportunity to the plaintiff to amend his plaint so as to include a prayer for consequential relief. In my view, such an opportunity should now be given to the plaintiff.
19. In the light of the observations made above, I would allow the appeal, set aside the decree of the trial Court and remand the case to it for retrial after affording an opportunity to the plaintiff to amend hisplaint. There will be no order as to costs in this Court.
Tek Chand, J.
20. I agree.