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2020 DIGILAW 286 (CAL)

Minati Sarkar v. Sibatosh Chakraborty

2020-02-26

BISWAJIT BASU

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JUDGMENT Biswajit Basu, J. - The competence of the Court to allow an application for amendment of plaint, which if allowed would result in ouster of the pecuniary jurisdiction of the Court where the suit is pending is the issue falls for consideration in the present application under Article 227 of the Constitution of India. 2. The connected Ejectment Suit No. 411 of 2009 has been valued at Rs. 12,000/- being the rent for the twelve months at the rate of Rs. 1,000/- per month and has been filed in the First Court of learned Civil Judge (Junior Division) Alipore, District-24 Parganas (South) having territorial and pecuniary jurisdiction over the said suit. 3. The plaintiff, the opposite party herein, filed an application in the said suit seeking amendment of the plaint inter alia for inclusion of a further claim in the suit for a decree of mesne profit and/or damages at the rate of Rs. 20,000/- for mensum with effect from the expiry of the period stipulated under the eviction notice determining the tenancy till the recovery of possession of the suit property, which has been assessed at Rs. 1,32,000/- as on the date of filing of the application for amendment. 4. The learned Trial Judge by the Order No. 46 dated September 12, 2019 after allowing the said application for amendment returned the plaint to the plaintiff for filing of the same before the appropriate Court having pecuniary/territorial jurisdiction to try and dispose of the said suit. 5. The defendant is challenging the said order on two-fold grounds; firstly the proposed amendment if allowed would take the suit beyond the limit of pecuniary jurisdiction of the learned Trial Judge as such the said Court has no jurisdiction to deal with the said application for amendment, and secondly the amendment sought for is barred by limitation. 6. Mr. Batindra Narayan Roy, learned advocate for the petitioner relying on the decision of Hon'ble Division Bench of this Court in the case of Mst. Zohra Khatoon v. Janab Mohammed Jane Alam & ors., 1978 AIR(Cal) 133 submits that the Court cannot allow a prayer for amendment of pleadings unless it has the jurisdiction to entertain the suit. 6. Mr. Batindra Narayan Roy, learned advocate for the petitioner relying on the decision of Hon'ble Division Bench of this Court in the case of Mst. Zohra Khatoon v. Janab Mohammed Jane Alam & ors., 1978 AIR(Cal) 133 submits that the Court cannot allow a prayer for amendment of pleadings unless it has the jurisdiction to entertain the suit. He further relies on the Hon'ble Division Bench decision of Nagpur High Court in the case of Lalji Ranchoddas v. Narottam Ranchoddas, 1953 AIR(Nag) 273 to contend that in a situation like the present, the proper procedure is to return the plaint together with the application for amendment for presentation before the Court which has jurisdiction to consider the original claim and the claim sought to be incorporated in the plaint by the proposed amendment. 7. Mr. Roy further submits that the plaintiff is claiming mesne profit from the date of determination of the defendant's tenancy by the eviction notice. In terms of the said notice the tenancy was allegedly determined on the expiry of July 31, 2009. The limitation for a decree of mesne profit is governed by Article 51 of the Limitation Act, 1963. The proposed amendment to include a claim of such decree in the plaint being sought beyond the period of limitation prescribed under the said article, is barred by limitation. 8. Mr. Sanjay Mukherjee, learned advocate appearing on behalf of the plaintiff/opposite party on the other hand submits that the proper procedure in a situation like the present case is to allow the application for amendment first and then return the plaint to the plaintiff under Order VII Rule 10A of the Code of Civil Procedure for filing of the same before the appropriate Court, exactly that has been done by the learned Trial Judge in the order impugned. 9. Mr. Mukherjee to give support to his such contention places reliance on the decision of the Hon'ble Division Bench of this Court in the case of Mohammad Jabbas Ali v. Rahima Bibi, 1983 2 CalHN 7 and on the decision of the learned Single Judge of this Court in the case of Vivekananda Nidhi and others v. Smt. Ashima Goswami, 1997 AIR(Cal) 340. 10. Mr. Mukherjee submits that the decision of the Hon'ble Division Bench of this Court in the case of Mst. Zohra Khatoon (supra), relied on by Mr. 10. Mr. Mukherjee submits that the decision of the Hon'ble Division Bench of this Court in the case of Mst. Zohra Khatoon (supra), relied on by Mr. Roy is not a pointer to the issue under consideration in the present matter. He submits that in the said decision, the Hon'ble Division Bench has held that the Court which inherently lacks jurisdiction to entertain the suit cannot allow an amendment of pleadings to bring the said suit within its jurisdiction, which is not the case here. 11. Mr. Mukherjee, relying on two decisions of the Hon'ble Supreme Court in the case of Lakha Ram Sharma v. Balar Marketing Private Limited, 2008 17 SCC 671 and in the case of Tara V. Ganju and Ors. v. Basant and Co. & Ors., 2014 1 WbLR 579 (SC) submits that an application for amendment if allowed would take the suit out of the jurisdiction of the Court where it is pending is no ground for refusal of such prayer for amendment. Heard learned counsel for the parties. Perused the materials on record. 12. The Hon'ble Division Bench of this Court in the case of Mohammad Jabbas (supra) noticed three different judicial views of the Courts of India on the situation which is now under consideration in the present matter. The said Hon'ble Division Bench at paragraph 17 of the said report has summed up the said three views which is quoted below:- "17. But in the case the court has jurisdiction to entertain a suit, the courts in India are not unanimous in their views as regards the power of such court to allow an amendment of the plaint which would take the suit out of its jurisdiction and about the procedure to be followed. There are broadly following three lines of judicial views. (1) When an application for amendment of the plaint is made which if granted will deprive the court's jurisdiction to decide on merits, the court ought to dismiss the application. No court will permit a plaint to be so amended as to oust it own jurisdiction to try the suit (vide the decision of Venkatasubba Rao, J. in C. Singara Mudaliar v. M. Govindaswami Chetty & ors., 1928 AIR(Mad) 400 . No court will permit a plaint to be so amended as to oust it own jurisdiction to try the suit (vide the decision of Venkatasubba Rao, J. in C. Singara Mudaliar v. M. Govindaswami Chetty & ors., 1928 AIR(Mad) 400 . (2) When the court is faced with the question of allowing an amendment which taken together with the original claim exceeds its jurisdiction, it should return the plaint together with the application of amendment of consideration by the court having jurisdiction to entertain the claim which is proposed to be made by amendment of the plaint. (See Lalji Ranchhodas v. Narottam Ranchhodas, 1953 AIR(Nag) 273 , Edupuganti Raghavendra Rao Memorial High School Committee & ors. v. Potluri Atchayya & ors., 1957 AIR(AP) 10 ) (3) When the claim is originally made is within the court's jurisdiction but if the said claim is amended, the court might have no further jurisdiction, the said court itself is competent to allow such amendment. Thereafter, it would decide whether the amended plaint should be returned for presentation to the proper court. ( See Vhavani v. Mangamma, 1949 AIR(Mad) 208 , Goverdhan Beng and Joint Family of Kaniram Laxmi Narayan v. Government of the Union of India,1953 AIR(Hyd) 212 (Para 16), Kundan Mal & Ors v. Thikaha Siryari & ors., 1959 AIR(Raj) 146 , T.K. Sreedharan v. P.S. Job, 1969 AIR(Ker) 75) ". 13. The said Division Bench ultimately in paragraph 18 of the said report opined that the third view, quoted above ought to be followed. The relevant excerpt from the said paragraph 18 is reproduced below:- "18. .....In our opinion, the third view set out hereinbefore ought to be followed. Order 6 Rule 17 of the Code has not expressly deprived the court of its power to allow amendments which might affect its jurisdiction to try the suit. It is settled law that the court has a large measure of discretion in the matter of allowing amendments and Court's such power is liberally exercised. On the question of amendment of pleadings we ought to adopt a procedure which would ensure proper administration of justice and at the same time shorten rather than delay fair disposal of the case. It is settled law that the court has a large measure of discretion in the matter of allowing amendments and Court's such power is liberally exercised. On the question of amendment of pleadings we ought to adopt a procedure which would ensure proper administration of justice and at the same time shorten rather than delay fair disposal of the case. In case, upon the pleadings originally made, the court has competence to try the cause, the said court ought to consider the application for amendment of the plaint even when proposed amendment might affect court's jurisdiction to further try the suit." 14. It is rightly submitted by Mr. Mukherjee, that the decision of Mst. Zohra Khatoon (supra) relied on by Mr. Roy is not an authority for the proposition of law that the Court cannot deal with an application for amendment of plaint when the amendment sought for, if allowed would result in ouster of the pecuniary jurisdiction of the Court. In the said decision the Hon'ble Division Bench has held that the Court inherently lacking jurisdiction cannot make an order for amendment to bring the suit within its jurisdiction. The excerpt from the paragraph 8 of the said report being relevant is quoted below:- "8. We propose to dispose of the last point raised by the learned Advocate General first, because if we can consider the prayer for amendment as suggested by him, the defect as to jurisdiction may very well be removed by amending the relevant part of the pleading and deleting the prayer for reliefs other than the one in respect of the order dated August 18, 1971, passed by the Wakf Commissioner. In our opinion, Mr. Mukherjee is certainly right in his contention that granting an amendment postulates 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 any order for amendment to bring the suit within its jurisdiction. In that case the court will be exercising jurisdiction which it has not. So, if we uphold the view of the learned Judge that the court had not the jurisdiction to entertain the suit, no amendment can be allowed either by the said Court or this court in appeal exercising same powers to bring the suit within the jurisdiction of the Court. So, if we uphold the view of the learned Judge that the court had not the jurisdiction to entertain the suit, no amendment can be allowed either by the said Court or this court in appeal exercising same powers to bring the suit within the jurisdiction of the Court. On the facts, it is clear that it was not a case of mere abandonment of a part of the claim so that the court in view of such abandonment by the plaintiff may hold the suit in its other part to be within its jurisdiction. On the other hand, even as conceded by the learned Advocate General what is necessary is a positive amendment of the plaint itself for bringing it within the territorial jurisdiction of the court." 15. The Hon'ble Division Bench in the case of Mohammad Jabbas (supra) in paragraph 16 which quoted below approved the said view of the Hon'ble Division Bench in the case of Mst. Zohra Khatoon (supra) :- "It has been generally held that the court, which has no jurisdiction to entertain a suit, is not competent to allow an amendment of the plaint which would bring the suit within its jurisdiction. When on the face of it the plaint shows that the Court has no jurisdiction to try it, such Court cannot allow amendment of the plaint (See, S.I. Govindaraja Naicker v. K. Kassim Sahib & ors., 1928 AIR(Mad) 384 , Mst. Zohra Khatoon v. Janab Mohammad Jane Alam & ors., 1978 AIR(Cal) 133 , Ratan Chand Khanna v. Manendra Kumar, 1979 AIR(Cal) 55) " 16. The Hon'ble Supreme Court in the case of Lakha Ram Sharma (supra) has held that "it is also settled law that merely because an amendment may take the suit out of the jurisdiction of that court is no ground for refusing that amendment." The said proposition of law has been reiterated and followed by the Hon'ble Supreme Court in its subsequent judgment in the case of Tara V. Ganju and Ors.(supra). 17. The Division Bench of the Nagpur High Court in the case of Lalji Ranchoddas (supra) has expressed a contrary view. Paragraph 7 from the report of the said decision needs to be reproduced for consideration of the said view:- "7. 17. The Division Bench of the Nagpur High Court in the case of Lalji Ranchoddas (supra) has expressed a contrary view. Paragraph 7 from the report of the said decision needs to be reproduced for consideration of the said view:- "7. In the present case, though the original claim was within the jurisdiction of the Court, the Court is asked to permit an amendment which, if allowed, would take it beyond its jurisdiction. On principle there seems to be no difference between a Court not initially having jurisdiction creating jurisdiction in itself by amendment or a Court having jurisdiction originally allowing an amendment which ousts it. In our view, in both the cases, the Court is dealing with a matter which is in excess of its jurisdiction, in the first class of cases by entertaining the plaint and in the second by entertaining an amendment of the plaint. AS observed by the Division Bench in Ramanna v. Amirddi, 1931 AIR(Mad) 67 at p. 69...... "If a Court finds that it has no jurisdiction, then to say that it has jurisdiction to ask the plaintiff to amend his valuation with a view to direct him to pay additional court-fee and then return the plaint, would seem to suggest that a Court not having jurisdiction has got jurisdiction to do something which is 'prima facie' the duty and function of the proper Court" 18. The learned Single Judge of this Court in the case of Vivekananda Nidhi (supra) had the occasion to deal with the similar issue involved in the present matter. The learned Single Judge in the said decision resolved the issue by following the procedure suggested by the Hon'ble Division Bench of this Court in the case of Mohammad Jabbas (supra) instead of following the procedure suggested by the Hon'ble Division Bench of Nagpur High Court in the case of Lalji Ranchoddas (supra). The learned Single Judge in his said judgment made the following observation and cited the following example in support of his such election:- "that the conclusions arrived at by Chittotosh Mukherjee J. in that decision are not only binding on me, but also, in my view, the correct proposition of law" "Let me give an example in this matter. The learned Single Judge in his said judgment made the following observation and cited the following example in support of his such election:- "that the conclusions arrived at by Chittotosh Mukherjee J. in that decision are not only binding on me, but also, in my view, the correct proposition of law" "Let me give an example in this matter. Assuming the procedure adopted by the Nagpur High Court in Lalji Ranchoddas v. Narottam Ranchoddas, 1953 AIR(Nag) 273 , is followed in this case that is to say the unamended plaint with the application for amendment of the plaint is transferred to the transferee court can it be said that the transferee court shall have the jurisdiction to decide or deal with the application for amendment of the plaint because the suit filed before the 2nd Court of the Munsif could not be entertained by the transferee court." 19. The inevitable conclusion of the discussions made above is that the learned Trial Judge within his competence has allowed the said application for amendment and the procedure adopted by him in returning the amended plaint of the suit is just and proper as such the contrary argument of Mr. Roy fails. 20. The propriety of the claim of the plaintiffs for mesne profit is subject to the inquiry to be conducted by the Court under Order XX Rule 12 of the Code after the decree as such refusing the prayer of the plaintiffs to include the prayer for a decree of mesne profit in the suit on the ground that the same is barred by limitation would be amounting to prejudging a post decree issue. This Court, therefore, does not find any merit of the argument of Mr. Roy on this score and is accordingly rejected. The order impugned does not suffer from any illegality and/or infirmity warranting interference. C.O. 3806 of 2017 is dismissed. No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.