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2002 DIGILAW 732 (AP)

Challarapu Kumaraswamy v. Thanna Narasannaidu

2002-06-18

C.Y.SOMAYAJULU

body2002
C. Y. SOMAYAJULU, J. ( 1 ) REVISION petitioner filed O. S. No. 20 of 1993 on the file of the court of the Principal junior Civil Judge, Bobbili, initially against respondents 1 and 2 for a decree of perpetual injunction restraining them from interfering with his possession over the plaint schedule property and subsequently impleaded the 3rd respondent as a party to the suit. Consequent on the death of 1st respondent, 4th respondent and one T. Savitri were brought on record as his legal representatives. After both sides adduced evidence the suit was posted for arguments. At that stage, revision petitioner filed i. A. No. 133 of 1999 under Order 6 Rule 17 c. P. C. seeking amendment of the plaint by introducing the relief of declaration of title in respect of the plaint schedule property also. The said petition was dismissed by the trial Court, but on revision in C. R. P. No. 1162 of 1999, a learned single Judge of this Court, by his order dated 13-6-1999 allowed the revision petition with a direction to permit the revision petitioner to carry out the amendment within a reasonable time and gave permission to the respondents to file additional written statement, if they so desire, and directed the trial court to take up the suit for trial from the stage where it was left prior to the filing of the amendment petition, and further ordered that if the question of limitation is raised in the additional statement parties should be given an opportunity to adduce further evidence. As a result of the amendment, as sought, being allowed, since the value of the suit went beyond the pecuniary jurisdiction of the Court of the Junior Civil Judge, the learned Junior Civil Judge-1 returned the plaint for presentation before the proper court. Thereafter, revision petitioner presented the plaint in the Court of the senior Civil Judge, Bobbili and the same was numbered as O. S. No. 19 of 1999. In that suit, revision petitioner filed a memo taking a stand that as the Court of the Junior Civil judge which recorded the evidence ceased to have jurisdiction and since evidence recorded by a Court not having jurisdiction cannot be acted upon, de novo trial has to be held in the suit and so he may be given an opportunity to adduce evidence afresh. The learned Senior Civil Judge, by the order impugned in this revision, rejected the prayer of the revision petitioner for de novo trial. Hence this revision. ( 2 ) THE point for consideration is whether the revision petitioner is entitled to seek de novo trial in O. S. No. 19 of 1999 on the file of the Senior Civil Judge? ( 3 ) THE main contention of the learned counsel for revision petitioner is that after the petition for amendment of plaint was allowed, the Court in which the trial took place lost its jurisdiction and since all proceedings that took place in a Court not having jurisdiction are non est, and since the amended plaint, on being presented before the Senior Civil Judge s Court, amounts to filing of a fresh suit revision petitioner is entitled to adduce evidence afresh, ignoring the evidence recorded by the Junior Civil judge. He further contended that at the time of passing order in C. R. P. No. 1162 of 1999 this Court was not aware that if the petition for amendment were to be allowed the suit would go out of the pecuniary jurisdiction of the Junior Civil Judge s Court, and on the premise that the Court of Junior Civil Judge only would have jurisdiction, gave a direction that the suit should be taken up from the stage where it was left at the time of filing of the amendment petition, and so the said order became redundant after the suit went out of the jurisdiction of the Court of the Junior Civil Judge. He placed strong reliance on Ram Kishun Rai v. Ashirtad Rai, mohini Mohan Das v. Kunjabehari Das and sri Amur Chand Inani v. The Union of India in support of his contention that presentation of the plaint in the Senior Civil Judge s court amounts to institution of fresh proceedings and the proceedings that took place when the suit was pending before the junior Civil Judge cannot be taken into consideration. The contention of the learned counsel for respondents is that revision petitioner, while seeking the amendment incorporating the relief of declaration of title, inflated the value of the suit property with a view to take the suit out of the pecuniary jurisdiction of the Court of Junior Civil judge and had designedly filed the petition for amendment when the suit was posted for arguments with a hope that he can seek fresh trial in Senior Civil Judge s Court, but since this Court in CRP No. 1162 of 1999 gave a specific direction that the suit should be taken up from the stage at which it was left prior to amendment petition, the Court below rightly refused to take up de novo trial. Relying on Ramesh Chander v. Bhushan Lal he contended that the evidence recorded by the Junior Civil Judge cannot be said to be non est. ( 4 ) IT is no doubt true that proceeding in a court, which lacks INHERENT jurisdiction, would be non est and its orders would not be binding on the parties. The evidence adduced therein cannot totally be ignored. It can be used under Section 145 of the evidence Act, etc. This is not a case of the court of Junior Civil Judge inherently lacking jurisdiction to entertain the suit when it was instituted in that Court. There is any amount of difference between a plaint being instituted in a Court lacking inherent jurisdiction, and the Court losing jurisdiction because of the acts of the plaintiff by seeking amendment of the plaint and thereby taking it away from out of the pecuniary jurisdiction of the Court in which he instituted the suit. In this case when the plaint was originally presented as O. S. No. 20 of 1993 in the court of the Junior Civil judge, Bobbili that court did have the pecuniary and territorial jurisdiction to try that suit, and had, in fact, recorded the evidence of both sides and posted the case for arguments. It is at that stage the revision petitioner thought it fit to file a petition i. A. No. 133 of 1999 seeking amendment of the plaint incorporating the relief of declaration of title to the suit property also, by giving the details of the valuation and the extra Court fee to be paid etc. It is at that stage the revision petitioner thought it fit to file a petition i. A. No. 133 of 1999 seeking amendment of the plaint incorporating the relief of declaration of title to the suit property also, by giving the details of the valuation and the extra Court fee to be paid etc. As stated earlier the said petition was allowed by this court in C. R. P. No. 1162 of 1999 with some directions. The contention that this Court, while passing order in C. R. P. No. 1162 of 1999, was not aware of the fact that the amendment, if allowed, would take away suit from out of the jurisdiction of the court of the Junior Civil Judge and so the plaint would have to be presented in a Court superior to that of the Court of the Junior civil Judge, has no substance, because, the value of the suit as shown, in the proposed amendment was more than Rs. 1 lakh. Petitioner cannot be heard to say that the amendment proposed by him was allowed by this Court, without knowing the contents in the proposed amendment. In fact it is the duty of the revision petitioner to bring to the notice of the Court that if the amendment sought by him were to be allowed, it would have the effect of taking away the jurisdiction of the Court in which he filed the suit. If it is his contention that he suppressed that fact, it would amount to playing fraud on court and the party that played fraud cannot be allowed to take advantage of his own fraud or wrong and make it a ground to get a relief from the court. Since the value of the suit is put as rs. 1,02,050/- in the amendment Petition, it should be taken that the learned single judge who disposed the earlier C. R. P. knew that the pecuniary jurisdiction of the Junior civil Judge is only upto one lakh and if the amendment sought were to be allowed, the suit would go out of his pecuniary jurisdiction and allowed the earlier C. R. P. ( 5 ) THE decisions relied on by the learned counsel for the revision petitioner have no application to the facts of this case because in those cases the suits were instituted in courts which were not having pecuniary jurisdiction to try those suits. In this case, revision Petitioner instituted the suit in proper Court having pecuniary and territorial jurisdiction. Out of his own volition revision petitioner wanted to have an amendment and take away the jurisdiction of the Court of the Junior Civil judge, and wanted to bring it within the jurisdiction of the court of Senior Civil judge. Nobody prevented the revision petitioner from filing the suit for declaration of title and consequential injunction in the first instance. If in the suits that are properly instituted in Courts having territorial and pecuniary jurisdiction, a plaintiff who is not satisfied with the evidence adduced on his behalf or otherwise, were to file a petition for amendment of plaint and take the suit out of the jurisdiction of the Court in which he filed the suit and thereafter seek a de novo trial on that ground the earlier proceedings in the court where he instituted the suit became non est - it would lead to preposterous results because, a person knowing that he has no chance of success in view of the evidence adduced by him can come up with a petition for amendment and take the suit out from the jurisdiction of the court and bring it in the pecuniary jurisdiction of a superior court and seek fresh trial. ( 6 ) APART from the above the order passed by this Court in C. R. P. No. 1162 of 1999 is binding on the parties. Petitioner cannot ignore the said order and say that because the plaint was represented in a different court, that Court has to take evidence afresh and a de novo trial has to be held. ( 7 ) RAMESH Chander (supra) relied on by the learned counsel for the respondent was rendered by taking into consideration the wording in Section 21 C. P. C. , which has no application to this case. In view of the language employed in Section 21 C. P. C. , the objection as to jurisdiction has to be at the earliest point of time. The said decision also has no application to the facts of this case. In view of the language employed in Section 21 C. P. C. , the objection as to jurisdiction has to be at the earliest point of time. The said decision also has no application to the facts of this case. ( 8 ) SINCE the Court that recorded the evidence adduced by the parties had jurisdiction to try the suit when it recorded the evidence, and only because of the act of the revision petitioner in seeking amendment the suit went out of the jurisdiction of the court of the Junior Civil judge and since, the order of this Court in c. R. P. No. 1162 of 1999 that the matter should be taken from the stage at which it stood prior to the amendment petition being filed is binding on the petitioner, it is clear that the trial Court did not commit any error of jurisdiction in rejecting the prayer of the revision petitioner to hold a de novo trial. ( 9 ) HENCE, the C. R. P. is dismissed. No costs.