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2011 DIGILAW 580 (CAL)

Gurupada Sinha v. Rafique Middey

2011-04-25

PRASENJIT MANDAL

body2011
Judgment Prasenjit Mandal, J. 1. THIS application is directed against the order dated August 30, 2007 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Suit No.214 of 2001 thereby allowing an application for amendment of the plaint. 2. THE short fact is that the predecessor in interest of the opposite parties instituted a suit being T.S. No.214 of 2001 against the petitioners for a decree of declaration of title, permanent injunction and other reliefs before the learned Civil Judge (Junior Division), 5th Court, Howrah. THE original plaintiff contended that he acquired title to the suit property by purchase. THE defendants/petitioners herein are contesting the said suit by filing their written statement denying all the material allegations made in the plaint. Their statement is that the suit is not maintainable in its present form. THE plaintiff has no possession over the suit property and that the defendants are in possession of the suit property. For that reason, the suit is not maintainable in its present form. THE suit was at the stage of pre-trial. At that time, the plaintiff prayed for amendment of the plaint for changing the vacation of the suit property, inclusion of certain other prayers and also the prayer for recovery of the possession of the suit property. That application for amendment of the plaint was allowed by the impugned order. Being aggrieved by the said order, this application has been preferred by the defendants. Now, the question is whether the impugned order should be sustained. 3. UPON hearing the learned counsel for the parties and on going through the materials on record, I find that the father of the opposite parties instituted the said suit for declaration of title, permanent injunction and other reliefs on October 8, 2001. The defendants have raised the question of maintainability of the suit contending, Inter alia, that since before the institution of the suit, they are in possession of the suit property. They have the necessary documents such as deeds, record of rights, tax receipts, etc. in support of their contention on possession over the suit property. They have also contended that the suit as framed, is not maintainable and that it is not properly valued. 4. MR. They have the necessary documents such as deeds, record of rights, tax receipts, etc. in support of their contention on possession over the suit property. They have also contended that the suit as framed, is not maintainable and that it is not properly valued. 4. MR. S.P. Roychwdhury, learned Senior Advocate appearing for the petitioners has drawn my attention to the cause title and other portions of the plaint appearing as Annexure A' to the application and thus, he submits that the plaintiff filed the suit for declaration, permanent injunction and consequential reliefs. The suit was valued at Rs.45/- only. By referring to paragraph No. 10 of the plaint, MR. S.P. Roychwdhury submits that the suit valuation has been split up as Rs.10/- for declaration, Rs.15/- for permanent injunction and Rs.20/- for other consequential relief as per provisions of section 7(iv) (b) and (c) of the West Bengal Court Fees Act, 1977 and the plaintiff has paid Court fees thereon. He also submits that the defendants have taken the plea that the plaintiff is not in possession of the suit property and so in consideration of the relief sought for, the suit is barred by section 34 of Specific Relief Act. Moreover, proper Court fees have not been paid over the suit property. Mr. Roychwdhury has drawn my attention to the impugned order and thus, he contends that amendment sought for is not proper at all and that is why it is challenged. The valuation has been made to the tune of Rs.100/- only as per application for amendment of the plaint. The plaintiff has sought for amendment of the plaint incorporating the prayer for decree for recovery of possession and for that reason suit valuation has been raised from Rs.45/- to Rs.100/- for recovery of possession of the suit property. This valuation cannot be accepted at all. He has also contended that if the true valuation of the property which may be more than Rs.1 crore is taken into consideration, the learned Trial Judge has no pecuniary jurisdiction over the suit property and so the learned Trial Judge has no right to deal with the property. This valuation cannot be accepted at all. He has also contended that if the true valuation of the property which may be more than Rs.1 crore is taken into consideration, the learned Trial Judge has no pecuniary jurisdiction over the suit property and so the learned Trial Judge has no right to deal with the property. He also contends that according to section 21 of the Civil Procedure Code, the objections to jurisdiction should be taken in the Court of first instance at the earliest possible opportunity and as such, in consideration of the relief sought for after amendment of the plaint, the learned Trial Judge has no jurisdiction over the suit and so he should have taken appropriate steps under Order 7 Rule 10 of the CPC. Thus, he submits that the suit valuation as indicated by the plaintiff in the amendment of the plaint is not proper. But the learned Trial Judge has allowed the application for amendment with further observations that the plaintiff will be saddled with an obligation to pay the ad valorem Court fees with the valuation of the suit without the determination of the value. So, the impugned order should be set aside. 5. LASTLY, Mr. Roychwdhury has fairly submitted that by the subsequent order dated January 3, 2008, the learned Trial Judge has further allowed the application for amendment of the plaint incorporating the valuation of the suit property against which recovery of possession has been sought for, to the amount of Rs.1,80,100/-. For that reason, the grievance of the petitioner for which this revisional application was filed stands fulfilled by the subsequent amendment of the plaint. So, appropriate orders may be passed for return of the plaint for filing to the proper Court. 6. ON the other hand, Mr. P.B. Sahoo appearing on behalf of the opposite parties submits that at the time of amendment of the plaint the learned Trial Court is to look into whether the proposed amendment is necessary for proper adjudication of the matter in dispute. The plaintiff has clearly stated that he was in possession of the suit property and that he has been dispossessed during pendency of the suit on February 6, 2005. The documents filed by the defendants have been challenged by the plaintiff. The plaintiff has clearly stated that he was in possession of the suit property and that he has been dispossessed during pendency of the suit on February 6, 2005. The documents filed by the defendants have been challenged by the plaintiff. So, the question whether the plaintiff was in possession and subsequently, he was dispossessed shall be decided at the time of trial of the suit. But at the time of disposal of the application for amendment of the plaint, the learned Trial Judge is to decide whether the amendment is necessary to solve the dispute between the parties and if it is allowed whether the defendants be prejudiced in any way. The question whether the defendants are in possession of the suit property all along, shall also be decided at the time of trial of the suit and so unless and until, evidence is tendered by the parties, this question cannot be settled. The learned Trial Judge is, therefore, justified in allowing the application for amendment of the plaint. In respect of his contention, Mr. Sahoo has referred to the decision of Sampath Kumar v. Ayyakannu and Anr. reported in (2002) 7 Supreme Court Cases 559 and he submits that as per defence version if it is found that the defendants are in possession, if the prayer for recovery of possession is not made; the suit is bound to fail. According to the plaintiff, the proposed amendment particularly the relief for recovery of possession is over the event subsequent to the filing of the suit and so such amendment should be allowed. Otherwise, the plaintiff will have to file another suit for recovery of possession. In this way, the multiplicity of the suit may arise. So, according to the decision of Sampath Kumar (supra) such amendment has been rightly allowed. 7. MR. Sahoo has also referred to the decision of Sri Sisir Bhattacharjee and Anr. v. Sri Gopinath Sett and Anr. reported in 2011 (1) CLJ (CAL) 515 and thus, he submits that the ratio of this decision is very much important for deciding this application because the similar situation arose. In that case, amendment seeking the relief for recovery of possession was rejected and this Hon'ble Court observed that the rejection of the prayer for amendment of the plaint was not justified. In that case, amendment seeking the relief for recovery of possession was rejected and this Hon'ble Court observed that the rejection of the prayer for amendment of the plaint was not justified. In a suit for declaration and injunction, the prayer for recovery of possession could well be sought for according to the decision of Shri Sisir Bhattacharjee and Anr. case (supra). Therefore, the learned Trial Judge is perfectly justified in passing the impugned order. 8. UPON due consideration of the submissions advanced by the learned Advocates of both the sides and the above decisions, I find that, in the instant case, the plaintiff originally filed the suit for declaration of title and injunction as stated. The plaintiff has specifically contended that they have been dispossessed from the suit property during the pendency of the suit on February 6, 2005. I have stated above that the suit is at the pre-trial stage filed in the year 2001. Under the circumstances, the learned Trial Judge may allow the application for amendment of the plaint to adjudicate the dispute between the parties. The defendants will not be prejudiced if the prayer for amendment is allowed. So far as the valuation is concerned, the learned Trial Judge has clearly indicated that the plaintiff will be saddled for paying the proper valuation if the situation demands as indicated above. Therefore, it is not the situation that the Trial Court has accepted the valuation of the suit as Rs.100/- only, though, the relief of recovery of possession of the suit property has been sought for. From the subsequent order dated January 3, 2008, I find that the plaintiff has amended the valuation of the suit making the same as Rs.1,80,100/-. Under the circumstances, since there are rival claims as to the possession over the suit property by the respective parties, unless and until, evidence is recorded, it is not possible to decide whether the plaintiff was dispossessed from the suit property as contended during the pendency of the suit or whether the defendants are in possession of the suit property all along even since before the filing of the suit. So, such issues shall be decided at the time of trial of the suit. So, such issues shall be decided at the time of trial of the suit. At the time of the consideration of the amendment of the plaint, I am of the view that the learned Trial Judge has rightly observed that the proposed amendment should be allowed to adjudicate the real dispute between the parties and that the defendants will not prejudice in any way if the prayer for amendment is allowed as per observations. Subsequently by another amendment, the plaintiff has change the valuation from Rs.100/- to Rs.1,80,100/-. Therefore, the question whether this valuation is correct or not may also be a matter of consideration at the subsequent stage of the suit. For the time being, I am of the view that the learned Trial Judge is justified in allowing the valuation of the suit. 9. UNDER the circumstances, I am of the view that the consolidated effect of the two amendments is that the learned Civil Judge (Junior Division) has no jurisdiction to try the suit. The learned Trial Judge is, therefore, directed to proceed with the suit as per Order 7 Rule 10 and 10A of the CPC. The impugned order is not interfered with. 10. THIS revisional application is disposed of in the manner indicated above. The learned Trial Judge shall direct the plaintiffs to take appropriate steps under Order 7 Rule 10 read with Rule 10A of the CPC within 30 days from the date of communication of this order to him and thereafter, he shall dispose of the application to be filed to that effect, upon hearing both the sides, within 30 days from the date of filing of the said application. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. Application disposed of.