Monirampore Cultural Association v. Monirampore Junior High School
1987-09-02
A.K.Nayak, A.M.Bhattacharjee
body1987
DigiLaw.ai
JUDGMENT 1. HAVING heard the learned counsel for the parties, we are satisfied that the impugned order directing the return of the plaint is patently erroneous and must be struck down and the appeal', therefore, must be allowed. 2. IT is trite to say that a plaint, like other legal documents, must be read as a whole It must be read meaningfully, importing a little but of common sense, wherever necessary, and not with a desire to find fault. The plaint in this case is expressly labelled as one "for declaration, permanent injunction, mandatory injunction and damages valued at Rs. 26,100/-". The facts giving rise- to the 'cause of action for damages have been spelt but in paragraphs 21 and 25 of the plaint and in para 30, the plaintiff has not only valued the "relief for damages" tentatively at Rs. 25,000/-, but has stated further that "in the event the decree for damages be passed for an amount higher than what is claimed herein, the plaintiff shall, when so called upon, pay the deficit court-fees". It is true that at the end of that para 30, while detailing separately the reliefs claimed, no specific prayer has been made for a decree for damages. But in substance, the case, as it was enfolded, valued and stamped, was for damages also and as pointed out by' the Supreme court in Pratap Singh v. Shri Krishna Gupta, ( AIR 1956 SC 140 at 141) it is the substance that should count and must take precedence over mere form. Reference may also made to the observations of Gajendragadkar, J., (as his Lordship then was) in Janakiram Iyer v. Nilkanta iyer ( AIR 1962 Sc 633 at 6 38-6 39) to the effect that "in construing the plaint we must have regard to all the relevant allegations made in the plaint and must look at the substance of the matter and not its form" and it may be noted in that case also much weight was given to the fact that the valuation of the plaint was made on the footing that a certain relief was claimed and (the plaint was construed accordingly. Be that as it-may, assuming.
Be that as it-may, assuming. that the absence of a specific prayer for a decree for damages was a defect in view of the provisions of order 7 Rule 7 of the Code of Civil Procedure, which requires the relief claimed to be stated specifically, such a defect was obviously curable by amendment and an application for such amendment has in fact been filed by the plaintiff in this case. We can have no manner of doubt that such an amendment ought to have been allowed. As a result of a series of decisions of the Supreme Court, the law relating to the amendment of pleading has stood very much liberalised and in fact in Haridas Audas Thadani v. Godrej Rustom Kermani (1984 1 Supreme Court Cases 668 at 6 99), the Supreme Court has observed that "it is well-settled that the Court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side". In Jai Jai Ram Monohar lal v. National Building Materials Supply ( AIR 1969 SC 1267 ), the supreme Court, after pointing out (at 1269) that "rules of procedure are intended to be hand-made to the administration of justice and that a party can not be refused just relief merely because of mere mistake, negligence, inadvertence or even infraction of the rules of procedure", has, observed that "the Court always gives; leave to amend the pleading of a party unless it is satisfied that the party applying was acting malafide or that by his blunder, he has caused injury to his opponent which may not be compensated for by an order of costs". It has been observed further that "however 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". These observations have been quoted with approval by the Supreme court in Ganesh Trading Co.
It has been observed further that "however 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". These observations have been quoted with approval by the Supreme court in Ganesh Trading Co. v. Moti Ram ( AIR 1978 SC 484 ) where it has been observed (at 486) that "even if a party or its Counsel is inefficient in seeing out its case initially, the shortcoming can certainly be removed generally by appropriate steps taken by party which must no doubt pay costs for the inconvenience or expense caused to the other side for its omissions" and that "the error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued". This being the position in law, we would like to make it clear even at the cost of repetition that the prayer of the plaintiff to amend the plaint, so that his claim for the relief relating to damages could be better articulated, ought to have been granted. 3. THE learned Judge, however, thought that there being in the plaint no specific prayer for any decree for damages, the valuation of that relief for damages at Rs. 25000/- was to be totally ignored and when the valuation of the relief for damages was thus excluded, the valuation of the suit would come down at a figure which would at once take it away from his Court and would bring it within the jurisdiction of the lower court, being the court of the Munsif, where it ought to have been instituted in accordance with the provisions of Section 15 of the Code of Civil Procedure. The learned Judge has accordingly ruled that he thus having no, jurisdiction in respect of the suit with the plaint as it stands, he can not entertain the application for amendment of the plaint and must order the plaint to be returned to the plaintiff for presentation to the Court in which the suit should have been instituted. 4. IT is true that, as has been pointed out by a Division Bench of this Court in Zohra Khatoon v. Mohd.
4. IT is true that, as has been pointed out by a Division Bench of this Court in Zohra Khatoon v. Mohd. Jane A lam (AIR 1978 Calcutta 133 at 135), "where the Court inherently lacks jurisdiction to entertain the suit, it can not make any order for amendment to bring the suit within its jurisdiction". But it is also well-settled that Section 15 of the Code of Civil Procedure requiring every suit to be instituted in the Court of the lowest grade competent to try it, is a rule of procedure only and not of jurisdiction and if a higher court otherwise has jurisdiction in respect of a suit' under' the provisions of the relevant Statute constituting such Courts, it retains and is not deprived of such jurisdiction in respect of that suit even though under Section 15 of the Code of Civil Procedure the suit is to be instituted in a lower court. This was decided by a Full Bench of the Allahabad High Court more than a century ago in Nidhi Lal v. Mazhar Hussain 1885 - ILR 7 Allahabad 230) with reference to the provisions of the then Sections 19 and 20 of the Bengal Civil Courts Act, 1871, corresponding to Sections 18 and 9 of the present Bengal, Agra 6c Assam Civil Courts Act of 1887 and Section 15 of the present Code of Civil Procedure, 1908 To the same effect is the decision of this Court in Matra Mandol v. Hari Mohun mullick (1890 - ILR 17 Calcutta 155 and both these Allahabad and the Calcutta decisions have been taken to have settled the law on the point by a Division Bench of this Court in Mohini Mohan v. Kunjabehari (AIR 1943 Calcutta 450. A Full Bench decision of the Madras high Court in R. Rama Subbarayalu v. Rengammal (AIR 1962 Madras 450 at 456) has also relied on and followed the Allahabad Full Bench decision in Nidhi Lai (supra. According to the ratio of these decisions-we would have to hold that even though under Section 19 of the present bengal, Civil Courts Act of 1887, the jurisdiction of a Munsif extends to all original suits of which the value does not exceed Rs.
According to the ratio of these decisions-we would have to hold that even though under Section 19 of the present bengal, Civil Courts Act of 1887, the jurisdiction of a Munsif extends to all original suits of which the value does not exceed Rs. 7500/-, the jurisdiction of the District Judge or the Subordinate Judge- (now the Assistant District- Judge) in respect of such suits is not ousted, even though in accordance with Section 15 of the Code of Civil Procedure, such suits are required to be instituted in the court of the Munsil. To borrow from the observations of Petheram, C. J. in Nidhi Lal (supra., at 2 34), the jurisdiction of the District Judge or the Subordinate Judge extends all suits cognizable by the Civil Court, whatever the value of the subject-matter in dispute may be; and since the jurisdiction of the Munsif also extends to all like suits the value of the subject-matter in dispute in which does not exceed Rs. 7500/-, the Munsif and the District Judge or the Subordinate Judge have concurrent jurisdiction in respect of such suits. Thus the learned Judge in this case does not inherently, lack any jurisdiction in respect of the suit even if the plaint was to be read excluding the claim for the relief in respect of damages and, therefore the learned Judge ought to have entertained, and, as already indicated, allowed the prayer for amendment and was wrong in directing return of the plaint. We are afraid that the learned Judge jumped too soon. We would accordingly allow the appeal with costs, set aside the impugned order directing return of the plaint and direct the learned judge to proceed with the suit in accordance with law after disposing of. the application for amendment kept with record in the light of the observations made herein. Appeal allowed.