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Prahladrai Agarwalla and ors. Vs. Sm. Ranuka Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 24 of 1980
Judge
Reported inAIR1983Cal384
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;Presidency Small Cause Act, 1882 - Section 19
AppellantPrahladrai Agarwalla and ors.
RespondentSm. Ranuka Pal and ors.
Appellant AdvocateP.K. Ghosh, Adv.
Respondent AdvocateGautam Chakravarty, Adv.
DispositionAppeal dismissed
Cases ReferredIn Ganesh Trading Co. v. Moji Ram
Excerpt:
- .....the said paragraphs read after the amendment.original pleadings : 15. inasmuch as the value of the suit property exceeds rs. 50,000.00 and the damages claimed by the plaintiff do not exceed rs. 5,000.00 this hon'ble court has the jurisdiction concurrent with small causes court at calcutta and the city civil court at calcutta has not the jurisdiction to entertain, try and determine this suit. 16. for the purpose of court fees this suit has been valued at rs. 500.00 for delivery of possession and at rs. 5.000.00 for damaaes and such ad valorem court fees have been paid in this suit and the plaintiffs undertake to pay such additional court fees as and when the same may be directed by this hon'ble court. amended pleadings : 15. inasmuch as the value of the suit property exceeds rs. 50.000.00.....
Judgment:

C.K. Banerji, J.

1. This is an appeal against the judgment and order dated the 19th Sept., 1970 (1979?) passed by R. N. Pyne, J. allowing amendment of the plaint. The suit herein was instituted by the respondents against the appellants for a decree for possession of the premises in suit being the first floor of premises No. 28, Jagadish Chandra Bose Road, Calcutta, except two roomsin the possession of Bimal Homeo Hall (P.) Ltd.: decree for Rs. 4.000.00 as damages: Receiver: injunction costs and further or other reliefs. The suit was filed in this Court by invoking the concurrent jurisdiction of this Court with the Presidency Small Cause Court. Calcutta and was valued at Rs. 500.00 for delivery of possession and at Rs. 4,000.00 for damages and Court fees were paidOn that basis. The respondents made an application for amendment of the plaint whereby the suit was valued at. Rupees 50,000.00 for recovery of possession and thereby the aggregate value of the suit was made Rs. 54,000 and the pleading of concurrent jurisdiction of this Court with the Small Causes Court was deleted and the suit was made triable by this Court alone. It is necessary to set out the original pleadings in paragraphs 15 and 16 of the plaint and how the said paragraphs read after the amendment.

Original Pleadings :

15. Inasmuch as the value of the suit property exceeds Rs. 50,000.00 and the damages claimed by the plaintiff do not exceed Rs. 5,000.00 this Hon'ble Court has the jurisdiction concurrent with Small Causes Court at Calcutta and the City civil Court at Calcutta has not the jurisdiction to entertain, try and determine this suit.

16. For the purpose of Court fees this suit has been valued at Rs. 500.00 for delivery of possession and at Rs. 5.000.00 for damaaes and such ad valorem Court fees have been paid in this suit and the plaintiffs undertake to pay such additional Court fees as and when the same may be directed by this Hon'ble Court.

Amended pleadings :

15. Inasmuch as the value of the suit property exceeds Rs. 50.000.00 and the damages claimed by the plaintiff are Rupees 4,000.00 aggregating Rs. 54.000.00 this Hon'ble Court has the jurisdiction and the City Civil Court at Calcutta has not the jurisdiction to entertain, try and determine this suit.

16. For the purpose of Court fees this suit has been valued at Rs. 50,000.00 for delivery of possession and at Rs. 4,000.00 for damages and therefore for an aggregating sum of Rs. 54,000.00 and the plaintiffs undertake to pay such additional Court fees as and when the same may be directed by this Hon'ble Court.

2. Mr. P. K. Ghose appearing for the appellants, urged that the suit was filed by invoking the concurrent jurisdiction of this Court with the Presidency Small Causes Court, Calcutta as a suit triable by the Small Cause Court and on that ground it was pleaded that the City Civil Court had no jurisdiction to entertain or try or determine the suit. According to the respondents plaintiffs this was a suit of a Small Cause nature. This Court exercising its jurisdiction in entertaining and trying this suit would, therefore, entertain and try it as a suit of Small Cause nature. The jurisdiction to be exercised by this Court in entertaining and trying this suit, would be concurrent jurisdiction of this Court with that of the Small Cause Court. By the amendments the respondents are not only seeking to completely change the nature of the suit but also to completely oust the jurisdiction of the Small Cause Court to entertain and try this suit on the basis whereof the suit was instituted in this Court. By the said amendments the respondents have converted this suit into a new and fresh suit solely triable by this Court.

3. It was next urged that no exceptional circumstances have been shown by the respondents for allowing such amendments. It was urged that by the said amendments the respondents have sought to convert a bad suit into a good suit under Section 19(d) of the Presidency Small Cause Courts Act, the Presidency Small Cause Court has no jurisdiction to entertain or try a suit for recovery of immovable property. Thus this Court in exercise of its concurrent jurisdiction with the Small Cause Court could not grant rebel or decree to the respondents for possession of the property in suit, inasmuch as such claim was beyond the jurisdiction of the Small Cause Court. But by virtue of the amendments, by ouster of the jurisdiction of the Small Cause Court, this Court would now have jurisdiction to pass a decree for possession of the property in suit. This Court having lacked in initial jurisdiction to grant such relief, could not confer on it such jurisdiction by allowing amendment of the plaint. The order of amendment was therefore without jurisdiction and as such appealable under Clause 15 of the Letters Patent.

4. Reliance was placed on a decision of a Division Bench of this Court in Mst. Zohra Khatoon v. Janab Mohammad Jane Alam, : AIR1978Cal133 where it was observed that granting an amendment postulates an authority of the Court to entertain the suit and make an order for amendment but where the Court inherently lacked jurisdiction to entertain the suit it could not make any order for amendment to bring the suit within its jurisdiction. In that case, the Court would be exercising jurisdiction which it had not

5. Reliance was also placed on a decision of a single Judge of this Court in Ratan Chand Khanna v. Mahendra Kumar reported in : AIR1979Cal55 where the Learned Judge relying on Zohra Khatoon's case (supra) refused to grant amendment of the plaint as the Learned Judge had held in an earlier application in the same suit that this Court had no jurisdiction to entertain the suit.

6. Mr Gautam Chakravarty appearing for the respondents, contended on the other hand, that here there was no complete lack of jurisdiction of the Small Cause Court and as such, this Court in exercise of its concurrent jurisdiction with the Small Cause Court was entitled to entertain the suit. The Small Cause Court and, as such, this Court in exercise of its concurrent jurisdiction have power to grant relief and pass a decree for damages as claimed in the suit. It was also urged that under Section 7(vi)(a) of the West Bengal Court Fees Act, 1970, the claim for recovery of possession in the suit being against trespassers without claiming any declaration of title to the property, the respondents as plaintiffs are entitled to make their own valuation of the relief for recovery of possession and they had valued such relief at Rs. 500.00. The total valuation being Rs. 500.00 for recovery of possession and Rs. 4,000.00 for damages aggregating Rs 4,500.00 which was well within the pecuniary jurisdiction of the Small Cause Court. It was also urged by Mr. Chakravarty that the Small Cause Court has jurisdiction to try even questions of title which might arise incidentally in the suit even if such question was the principal question but not the sole question. Reliance was placed by Mr. Chakravarty on three decisions of this Court (1) In the matter of Peary Mohun Ghosaul v. Harran Chunder Gangooly, (1885) ILR 11 Cal 261: (21 Makhan Lall Datta v. Boribullah Sardar, (1890) ILR 17 Cal 541: (3) Ashutosh Dey v. Foolchand Keshabdeo, AIR 1942 Cal 530.

7. It was urged by Mr. Chakravarty that the two decisions in Mst. Zohra Khatoon v. Janab Mohammed Jane Alam : AIR1978Cal133 (supra) and Ratan Chand Khanna : AIR1979Cal55 (supra) cited on behalf of the appellants were cases where the Court had no jurisdiction at all to entertain the suit. Unlike the present case, there was complete lack of jurisdiction in the Court and therefore it was held that the Court had no jurisdiction to grant amendment of the plaint inasmuch as the Court lacking in initial jurisdiction to try the suit at all was not competent to make any order in such suit for amendment of the plaint, as. such order would also be without jurisdiction.

8. In the case before us it is of no consequence whether the Small CauseCourt has or has not jurisdiction to try questions of title arising incidentally in a .suit.

9. The two decisions of this Court in Mst. Zohra Khatoon : AIR1978Cal133 (supra] and Ratan Chand Khanna : AIR1979Cal55 (supral were cases where the Court had no jurisdiction at all to try the suit and as such, amendment of the plaint was refused on the ground that if the Court had no jurisdiction to try the suit it had therefore no jurisdiction to make an order for amendment of the plaint, being an order in a suit which the Court had no jurisdiction to try. The case before us. however, is not one where this Court had no jurisdiction at all to try the suit as a suit triable by the Small Cause Court. Here, only one of the claims made in the suit was not triable by the Small Cause Court and consequently by this Court in the exercise of its concurrent jurisdiction with the Small Cause Court.

10. The pleadings on the basis whereof the suit herein was instituted in this Court are to be found in paragraphs 15 and 16 of the plaint as filed which have been set out earlier. The main prayers in the suit are (a) decree for possession of the suit property and (b) decree for Rs 4,000.00 as damages.

11. There is no dispute that the Small Cause Court is competent to entertain and try the suit and to pass a decree in so far as the claim for damages was concerned. It is with regard to the decree for possession of the suit property, that such claim could not be entertained or tried by the Small cause Court. It is true that if the plaintiffs-respondents claimed a decree for possession of the suit property, they could not institute the suit, in so far as that claim was concerned in the Small Cause Court but that did not prevent them from instituting the suit straightway in this Court by payment of proper court fees inasmuch as the value of the suit property is pleaded to be exceeding Rs 50,000.00 and it was not necessary to invoke the concurrent jurisdiction of this Court with the Small Cause Court.

12. This Court in the exercise of its ordinary Original Civil Jurisdiction is entitled to entertain and try suits triable by the Small Cause Court. Again this Court in exercise of its Ordinary Original Civil Jurisdiction is also entitled to entertain and try suits of various nature -- including those for recovery of possession of immovable property, exceeding Rs. 50,000.00 in value. The jurisdiction which is exercised by this Court in all such suits be they triable by the Small Cause Court or triable by this Court alone, is the Ordinary Original Civil Jurisdiction and such jurisdiction is attracted either by the nature of the suit or by its valuation or both. Thus suits which are triable by the Small Cause Court on account of their nature and valuation are triable by this Court in its Ordinary Original Civil Jurisdiction, in exercise of which jurisdiction suits exceeding Rs. 50,000.00 in value including those for recovery of possession of immovable property are also triable by this Court

13. In the present case as noticed earlier the suit as framed and filed included a claim for recovery of possession of immovable property which is not triable by the Small Cause Court, nevertheless the suit was filed in this Court in its ordinary Original Civil Jurisdiction on the basis that the suit was triable by the Small Cause Court and that this Court had concurrent jurisdiction with the Small Cause Court to entertain and try this suit. Obviously, the Small Cause Court could not entertain and try the suit herein in so far as it related to the recovery of possession of the property in suit, although this court in the exercise of its Ordinary Original Civil Jurisdiction could entertain and try the suit in respect of such claim as the definite case of the plaintiffs-respondents is that the value of the suit property exceeds Rs. 50,000.00. What the respondents sought to do by amendment of the plaint was to cure the defect in the plaint as filed so that this court was able to entertain and try suit in its entirety. by such amendment neither any new case nor any new cause of action was sought to be brought in or introduced. There is also no question of the said claim being barred, All the necessary pleadings were already there in the plaint as filed. We are therefore unable to accept the contention on behalf of the appellants that by the amendment the respondents have sought to change the nature of the suits, Even after the amendment, the suit remained a suit for recovery of possession of the property in suit and for recovery of Rs. 4,000,00 on account of damagesan originally filed, although the case that the suit being triable by the Small Caupe Court and this Court having concurrent jurisdiction with the Small Cause Court to try the suit, was deleted and given a go by. The defect in the matter of institution of the suit in this Court on the basis of concurrent jurisdiction with the Small Cause Court and payment of court fees at a lesser sum on the basis of lower valuation of the suit, was sought to be cured by the amendment. In Jai Jai Ram Monohar Lal v. National Building Material Supply. Gurgaon, : [1970]1SCR22 the Supreme Court observed that a party could not be refused just relief merely because of some mistake, negligence, or inadvertance and however negligent or careless might have been the first omission and however late the proposed amendment, the same might be allowed if it did not cause injustice to the other party.

14. In Ganesh Trading Co. v. Moji Ram reported in : [1978]2SCR614 the Supreme Court observed (Paras 4 and 5) :

'Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.....Defective pleadings aregenerally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional Court fees, which may be payable, or of costs of the other side. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should ordinarily, refuse prayers for amendment of pleadings.''

15. The amendments in the plaint herein read as a whole clearly show that the plaint as filed was a plaint in a suit for recovery of possession of an immovable property exceeding Rs. 50,000.00 in value and for recovery of damages in a sum of Rs. 4,000.00. Such suit would not be and could notbe triable by the Small Cause Court and consequently this Court would have no concurrent jurisdiction with the Small Cause Court to try the suit. That pleading in the plaint and the valuation of the suit for the purpose of Court fees, to say the least, was highly defective and probably a case of inadvertence or a mistake if not negligence and carelessness. As observed by the Supreme Court in Jai Jai Ram Monohar Lal : [1970]1SCR22 (supra) and Ganesh Trading Co. (supra) even if the defects in the --pleading in paras 15 and 16 of the plaint might have resulted from mistake or negligence or inadvertence or even carelessness, that did not deprive the plaintiffs-respondents from amending their pleadings nor would the Court refuse the amendments on that account

16. Here there was no absence of cause of action in the plaint, as filed and by the amendments no new or inconsistent case was sought to be brought in or introduced nor any right which had accrued to the defendants appellants was sought to be taken away but only the defects in the pleadings were sought to be cured and that also by complying with the necessary condition of payment of additional Court fees.

17. It appears from the judgment of the Learned Judge of the Court below that no Written Statement was filed in the suit by the defendants appellants and their time to file the Written Statement was therefore suitably extended by the Learned Judge. No inconvenience was suffered by the defendants appellants nor were they put to any costs apart from contesting the application for amendment. The defendants appellants had also made an application, inter alia for rejection of the plaint herein. Both the said application and the application for amendment of the plaint were heard by the Learned Judge at about the same time. The Learned Judge although dismissed the said application of the defendants appellants but did not make any order for costs and in the application herein although the Learned Judge allowed the amendments of the plaint but in the exercise of his discretion, did not make any order for costs.

18. Considering all the facts and circumstances of this case and respectfully following the observations of the Supreme Court in Jai Jai Ram Monohar Lal : [1970]1SCR22 (supra) and Ganesh Trading Co : [1978]2SCR614 (supra) we cannot but hold that the Learned Judge of the Court below was right and justified in making the order under appeal.

19. In the result, the appellants cannot succeed in the appeal and the appeal is therefore dismissed with costs.

20. The amendments allowed and the directions given by the Learned Judge of the Court below be carried out as directed by the Learned Judge. All parties including the department to act on a signed copy of the minutes of this order.

Ramendra Mohan Datta, J.

21. I agree.


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