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Simadri Panda Vs. Durgasi China Appanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 111 of 1979
Judge
Reported inAIR1982Ori25
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantSimadri Panda
RespondentDurgasi China Appanna and ors.
Advocates:L. Rath and ;B.S. Misra, Advs.
DispositionPetition allowed
Cases ReferredT. K. Sreedharan v. P. S. Job
Excerpt:
.....makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the plaintiff having failed to pay the court fee, the court rejected the plaint. the plaintiff prayed for a declaration that the order of the commissioner was bad and invalid and the defendants had no right, title or interest in the wakf property and for mandatory injunction. shah raichand maulak (air 1973 guj 283). in the well reasoned judgment justice mehta after analysis of the various relevant provisions of the code of civil' procedure said:.....of relief for injunction the same as value for jurisdiction according to section 8 of the suits valuation act, can be allowed even if such amendment oust the jurisdiction court which must return the plaint to be filed in court having jurisdiction.' reference may also be made to the case patel construction & co. at bombay v. shah raichand maulak (air 1973 guj 283). in the well reasoned judgment justice mehta after analysis of the various relevant provisions of the code of civil' procedure said: 'where the effect of the amendment would be to oust the jurisdiction of the court, which it originally had, the proper course is to allow the amendment and then return the amended plaint for presentation to the proper court. to reject the application for amendment on the ground that the.....
Judgment:
ORDER

R.C. Patnaik, J.

1. The plaintiff filed an application for amendment of the plaint seeking inter alia to raise the valuation of the suit. His application having been allowed and the valuation of the suit after amendment being beyond the pecuniary jurisdiction of the trial court, the plaint was directed to be returned for presentation in the proper Court. In the appeal of defendant numbers 2 and 3, the order of the trial court was set aside. The plaintiff is in revision before this Court.

2. The petitioner instituted a suit seeking a declaration that the defendants have no manner of right, title or interest in the suit land nor were they in possession and he also sought the relief of permanent injunction. The suit was, however, valued at Rs. 100/- for the purpose of jurisdiction. After defendants 2, 3 and 4, filed their written statements claiming title through purchase under certain registered sale deeds, the petitioner (plaintiff) filed an application seeking amendment of the plaint He impugned the title of the vendors of the defendants and sought the relief of confirmation of possession alternatively of recovery of possession. In view of the altered nature of the reliefs the plaintiff sought to value the suit, at Rs. 2800/-. The amendment having been allowed, the valuation of the suit got raised to Rs. 2800/- and the learned Munsif holding that the suit after amendment was beyond his pecuniary jurisdiction, directed the plaint to be returned for presentation in the proper court.

3. The defendants 2 and 3 challenged the order in appeal. Their contention before the learned Subordinate Judge was that a court should not permit amendment of the plaint which would entail the loss of pecuniary jurisdiction by itself. In support of the aforesaid contention reliance was placed upon the case of Satti Ramana v. Padala Amireddi (AIR 1931 Mad 67) and the case of Mst. Zohra Khatoon v. Janab Mohammad Jane Alam (AIR 1978 Cal 133). In the case reported in AIR 1931 Mad 67, (supra) the suit was for a declaration that certain lease deeds executed by the plaintiff and some other defendants in favour of defendant No. 1 were fraudulent and invalid and for dissolution of partnership and for other consequential reliefs. The suit was valued at Rs. 100/-. An objection to the valuation having been raised, it was held that the valuation should be Rupees 56,919/2/3 ps. in addition to another sum of Rs. 2318/6/0. The court then directed that the plaintiff should pay court fee on the aforesaid amounts before the plaint was returned for presentation to the proper court. The plaintiff having failed to pay the court fee, the court rejected the plaint. In such circumstances, their Lordships of the Madras High Court held:--

'When the 'Court finds that on the correct valuation, the plaint is not cognizable by it the proper thing to be done is to return the plaint so that it may be presented to the Court having jurisdiction. It will be for the Court having jurisdiction to entertain the plaint, to consider whether proper court fee has been paid and if not paid, to proceed in accordance with the power conferred upon it by law for that purpose. If a Court finds that it has no jurisdiction, then to say that it has jurisdiction to ask the plaintiff to amend his valuation with a view to direct him to pay additional court fee and then return the plaint, would seem to suggest that a Court not having jurisdiction has got jurisdiction to do something which is prima facie the duty and function of the proper Court.

It is difficult to understand how this decision of the Madras High Court was an appropriate one for reference in the present case. The trial court had called upon the plaintiff to pay court fee on the valuation determined when it itself had not the jurisdiction to entertain the suit on the correct valuation. Against that background the aforesaid observation was made by their Lordships. In that case on the correct valuation the Court had no jurisdiction to entertain the suit. It was, therefore, improper for the trial court to call upon the plaintiff to pay the additional court fee before the plaint was returned for presentation in the proper court.

In the case reported in AIR 1978 Gal 133 (supra), the Wakf Commissioner had appointed defendants 1 to 6 therein as Co-Mutwalis along with the plaintiff in respect of the wakf property. The plaintiff prayed for a declaration that the order of the Commissioner was bad and invalid and the defendants had no right, title or interest in the wakf property and for mandatory injunction. It was contended on behalf of the defendants that the Court had no territorial jurisdiction. The question was decided preliminarily and the trial court held against the plaintiff and directed return of the plaint. In appeal it was contended that if it was held that the court had no jurisdiction, the property being situate beyond the court's territorial jurisdiction, the plaintiff might be given an opportunity to amend the plaint by confining the relief to a challenge of the order only and deleting the rest. In such circumstances, the court held:--'........ .where the court inherently lacks jurisdiction to entertain the suit it cannot make any order for amendment to bring the suit within its jurisdiction......'

This case is distinghishable on facts and is not an authority for the present case,

4. I regret to observe that the learned Subordinate Judge was not properly advised at the Bar. There is a direct authority of our High Court in the case of Kurupa Naik v. Bhagaban Naik ((1968) 34 Cut LT 1195): (AIR 1968 Ori 181). The principle as summarised in the placitum is 'Amendment adopting valuation of relief for injunction the same as value for jurisdiction according to Section 8 of the Suits Valuation Act, can be allowed even if such amendment oust the jurisdiction Court which must return the plaint to be filed in court having jurisdiction.'

Reference may also be made to the case Patel Construction & Co. at Bombay v. Shah Raichand Maulak (AIR 1973 Guj 283). In the well reasoned judgment Justice Mehta after analysis of the various relevant provisions of the Code of Civil' Procedure said:

'Where the effect of the amendment would be to oust the jurisdiction of the Court, which it originally had, the proper course is to allow the amendment and then return the amended plaint for presentation to the proper Court. To reject the application for amendment on the ground that the amendment would take the suit out of the pecuniary jurisdiction of the Court is not in consonance with the spirit of Order 6, Rule 17 nor is it open to the court to return the plaint along with the application for amendment to be filed in the proper court.'

His Lordship after discussing the various alternatives open when an amendment is sought in such a manner that allowing the same would oust the jurisdiction of the Court in which the suit was initially filed made observations quoted above. The same view is also taken in the case of T. K. Sreedharan v. P. S. Job (AIR 1969 Ker 75) and in the case of M. Allaud-din v. P. S. Lakshminarayanan (AIR 1970 Mad 247):--

I am sure if the aforesaid decision had been cited before him, the learned Subordinate Judge would not have held.

'The learned Munsif had no jurisdiction to allow the amendment. The amendment thus allowed is neither proper nor correct because the learned Munsif had no pecuniary jurisdiction to entertain the suit of that valuation.'

5. I would, therefore, set aside the judgment passed by the learned Subordinate Judge and restore that of the learned Munsif. The plaint be returned for presentation in the proper court. As opposite parties did not enter appearance, there would be no order as to posts.


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