Skip to content


Vabakktha Gopalpillai Vasudeva Pillai Vs. National Small Industries Corporation Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 91 of 1977
Judge
Reported inAIR1979Cal107
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantVabakktha Gopalpillai Vasudeva Pillai
RespondentNational Small Industries Corporation Ltd.
Appellant AdvocateAjoy Nath Roy, Adv.
Respondent AdvocateMitra, Adv.
DispositionPetition allowed
Cases Referred(Mst. Zohra Khatoon v. Janab Mohammad Jane Alam
Excerpt:
- .....of the alleged earnest money of rs. 24,447.00 and as such this court should not entertain this suit. on behalf of the plaintiff it was submitted that there was an obvious error or mistake in valuing the suit. the learned counsel appearing for the plaintiff prayed for time to amend the plaint and the prayer was granted. in the present application the plaintiff prayed for amendment of the plaint by valuing the suit at rs. 54,445/- viz., refund for rs. 24,445/- and damage rs. 30000/-, leave to pay additional court-fees of rs. 2017.50 and other consequential orders. in para 7 of the petition the plaintiff alleged that the tentative valuation of rs. 1050/- was put at the suggestion of the plaintiff's lawyer. this allegation is not denied in the affidavit-in-opposition filed on behalf of.....
Judgment:
ORDER

1. The plaintiff instituted the above suit against the defendant for refund of the earnest money of Rs. 24,447.00 p. for inquiry into damages and decree for the amount found due and other reliefs. Subsequent to the institution of the said suit, the plaintiff filed an application under Ch. XIII-A of O. S. Rules for a summary judgment against the defendant who contested the said application, The application was heard by the Hon'ble Mr. Justice Sabyasachi Mukharji on 4-8-1977 and it was directed inter alia that the defendant would file written statement and contest the suit. All the directions in the order dated 4-8-1977 were duly complied with by the parties and the suit appeared in the Peremptory list. At the hearing, the defendant pointed out that this Court could not entertain the suit as the same was below its pecuniary jurisdiction. The suit has been valued at Rs. 1050/- on the ground that this Court along with the Presidency Small Causes Court have concurrent jurisdiction to try this suit. It was contended on behalf of the defendant that the suit was, in fact, for refund of the alleged earnest money of Rs. 24,447.00 and as such this Court should not entertain this suit. On behalf of the plaintiff it was submitted that there was an obvious error or mistake in valuing the suit. The learned counsel appearing for the plaintiff prayed for time to amend the plaint and the prayer was granted. In the present application the plaintiff prayed for amendment of the plaint by valuing the suit at Rs. 54,445/- viz., refund for Rs. 24,445/- and damage Rs. 30000/-, leave to pay additional Court-fees of Rs. 2017.50 and other consequential orders. In para 7 of the petition the plaintiff alleged that the tentative valuation of Rs. 1050/- was put at the suggestion of the plaintiff's lawyer. This allegation is not denied in the affidavit-in-opposition filed on behalf of the defendant. It is contended on behalf of the plaintiff that there was an obvious mistake or blunder by the lawyer in valuing the suit. The refund claimed was Rs. 24,447/- and there was a prayer for inquiry into damages and decree for the amountfound due. The plaintiff ought to have valued the suit on the basis of these two claims. The learned draftsman completely overlooked these two items of claims and valued the suit at Rs. 1050/- without any basis whatsoever. This is a clear blunder committed by the learned draftsman. Hence the plaintiff should not be penalised for the mistake on the part of the lawyer. This is a fit case where the mistakes should be allowed to be corrected for the ends of justice. The defendant's counsel submitted that on the face of the plaint, this court has no inherent jurisdiction. The claims is for Rs. 22,447 below the pecuniary jurisdiction of this Court and as such this suit could not be entertained by this Court. If the Court has no initial or inherent jurisdiction to entertain the suit as instituted the Court will not have any jurisdiction to pass an order for amendment to bring the suit within jurisdiction. The counsel for both the parties supported their respective views with reported cases.

2. The petitioner's counsel relied on : [1970]1SCR22 (Jai Jai Ram Manohar Lal v. National Building Material Sup. Gurgaon). The facts of this case are that originally the suit was brought by an unregistered firm and thereafter an application was made by one 'M', for correcting the cause title by inserting his name in place of the firm on the allegation that he was a manager of the joint family business and the suit was intended to be filed in that capacity. The amendment was allowed but on appeal the High Court held that the suit was a nullity and as such no amendment should have been allowed. Dealing with that observation of the High Court, the Supreme Court held at p. 1269 as follows :--

'Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. How-ever, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.'

3. The petitioner's counsel also relied on, AIR 1977 SC 2319 (Udayan Chinubhai v. R. C. Bali) in support of his argument that Court always grants relief to the party for the blunder of the lawyer. That was an application for condonation of delay in filing the appeal. The Supreme Court allowed the appeal holding at p. 2328 para 37:--

'Even otherwise, in the entire circumstances of the case disclosing sheer indifference, perhaps negligence, on the part of the Advocate Shri Bharatinder Singh, and no laches, whatever on the part of the appellant, we would have been inclined to condone the delay of 12 days under Section 3 of the Limitation Act.'

4. The defendant's counsel in his turn relied on, : AIR1978Cal133 (Mst. Zohra Khatoon v. Janab Mohammad Jane Alam), In this case a suit was instituted in the City Civil Court for declaration of title in respect of a Wakf estate and for injunction restraining the defendant's from interfering with the plaintiffs possession of the wakf properties etc. Admittedly the entire wakf property consisting of a mosque and certain immovable properties were situate outside the territorial jurisdiction of the Court. In the suit, the validity of certain order was also challenged. The plaintiff lost the suit in the trial Court on the ground of jurisdiction and preferred an appeal. At the hearing of the appeal, objection as to the jurisdiction was taken by the respondent. It was then suggested on behalf of the appellant that Court should allow amendment of the plaint by keeping only the portions challenging the order which was passed on 18-9-1971 by the Wakf Commissioner within jurisdiction so that the Appeal could proceed to that extent only. This suggestion was objected to by the respondent on the ground that the suit itself was not maintainable and as such no amendment could be made to bring the suit within its jurisdiction. The amendment could be made only by a Court having juris-diction to entertain the suit and to make the order. Upholding the respondent's contentions the Court held at p. 135 para 8:--

' ......... granting an amendmentpostulates an authority of the Court to entertain the suit and make an order for amendment therein, but where the Court inherently lacks jurisdiction to entertain the suit, it cannot make arty order for amendment to bring the suit within its jurisdiction.'

5. The defendant's counsel submitted that in : AIR1978Cal133 there was lack of territorial jurisdiction, in the present case it was lack of pecuniary jurisdiction. Both should be treated on the same footing. But the facts of the two cases are entirely different. Here the plaintiff claimed two things -- (1) refund and (2) damages. The plaintiff has to value his suit on the basis of both the claims i.e. refund and damage. But the learned lawyer has omitted to do so. On the contrary he valued the suit on a non existent and/or imaginary basis either due to his mistake or negligence or due to ignorance. The pleading for damage and prayer for decree for damages are already in the plaint. What is lacking is the plaintiff's assessment of the damages. The submission on behalf of the defendant would have great force if there was no claim for damages in the plaint. On the facts of this case, I cannot accept the submission of the learned counsel for the defendant that it is a case of lack of inherent jurisdiction of Court. This is a pure case of blunder or omission by the learned draftsman.

6. In view of my aforesaid finding I am not dealing with the other cases cited on behalf of the defendant on the point of lack of inherent jurisdiction. It would be significant to note that in : [1970]1SCR22 , the suit was instituted by an unregistered firm. Under Section 69(2) of the Partnership Act there is a statutory bar on the Court from entertaining such a suit.

'No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered.'

7. That was a suit by the unregistered firm on a contract for recoveryof price of timber. In spite of this statutory bar, a clear prohibition on Court to entertain such suit, the Supreme Court allowed the amendment. It is to be noted that, : [1970]1SCR22 was not cited in the case reported in : AIR1978Cal133 .

8. However in view of my finding that it is not a case of lack of jurisdiction but it is a pure case of blunder by the lawyer. I am inclined to pass orders as prayed for in the petition following the aforesaid two Supreme Court cases. As a result there will be orders in terms of prayers (a) (b) (c) and (d) of the petition save that such Court-fees has to be paid before amendment is carried out. The amendment allowed be carried out within a fortnight from re-opening by the Department on the basis of a signed copy of minutes of this order. The plaintiff is directed to serve a copy of the amended re-verified plaint on the defendant within a week from the date of amendment. The defendant will be entitled to file an additional written statement, if any, within a fortnight from the date of service of the amended plaint. The defendant will be entitled to the costs of this application and costs of the additional written statement, if any, from the plaintiff. All parties and the Department are to act on a signed copy of the minutes on the undertaking of the petitioner's Advocate on Record to draw up and complete the order.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //