M.Y. Eqbal, J.
1. In the instant writ application filed under Article 227 of the Constitution of India the defendants-petitioners have challenged the order dated 9.7.2007 passed by Munsif, 1st, Dhanbad in Title suit No. 113/2006 whereby the application for amendment of the plaint has been allowed.
2. The plaintiffs--respondents filed the aforementioned suit for declaration that the cancellation of agreement of sale dated 16.9.2003 by legal notice dated 28.6.2005 is illegal, void, without jurisdiction and not binding on the plaintiff and further for a decree for permanent injunction restraining the defendants from negotiating sale of flat/office.
3. Plaintiffs' case is that the defendants are the owners of complex, namely, Laxami Complex in which there is multi-storied building. The plaintiffs approached the defendants to purchase one flat and contract was entered into between the parties on a consideration of Rs. 6,67,000/- with terms and conditions. The plaintiffs alleged to have paid Rs. 1,33,400/- on the date of execution of agreement of sale and further Rs. 66,000/- was also paid by cheque and the defendants agreed to transfer the flat in favour of the plaintiffs. The plaintiffs alleged to have paid 80% of the consideration amount. However by a legal notice the defendants decided to cancel the agreement to sell.
4. The defendants contested the suit filing written statement stating inter alia that the plaintiffs neglected and defaulted in complying the terms and conditions. During the pendency of the suit the plaintiff filed an application for amendment of cause title of the plaint seeking relief of specific performance of contract and for addition of a new paragraph about readiness and willingness to purchase the flat. The plaintiffs also sought to change the valuation of suit from Rs. 68,639/- to Rs. 6,67,000/-. The defendants opposed the application on the ground that by the proposed amendment the plaintiffs wanted to withdraw their admission made in the plaint. The defendants further opposed on the ground that by the proposed amendment the nature of the suit will be changed inasmuch as the suit was filed for declaration and injunction valuing the suit at Rs. 68,639/- and by the proposed amendment the plaintiffs wanted to introduce one more relief for specific performance and the suit is to be valued at Rs. 7,35,639/-. The Court below after hearing the parties allowed the amendment petition by passing the impugned order.
5. Mr. V. Shivnath, learned Counsel appearing for the petitioners assailed the impugned order is being illegal and wholly without Jurisdiction. Learned Counsel submitted that the Court below ought not to have heard the amendment petition as the amendment sought for oust the jurisdiction of the Court. In this connection, learned Counsel relied upon the decision of the Patna High Court in the case of Pandit Rudranath Mishir and Ors. v. Pandit Sheo Shankar Missir and Ors. : AIR1983Pat53 , and Lalji Ranchhoddas v. Narottam Ranchhoddas AIR 1953 Nagpur 273.
6. Mr. Sunil Kumar Sinha, learned Counsel appearing for the plaintiffs-respondents submitted that after amendment of the plaint, the Court below returned the plaint since it exceeded the pecuniary Jurisdiction of the Court and the plaint was on return filed in the Court of Sub. Judge where suit is pending for appearance of the defendants. Learned Counsel in support of the impugned order relied upon the decision of Madras High Court in the case of M. Gomathi v. Nataraja : AIR1973Mad247 .
7. Considering the facts of this case and the submissions made by the learned Counsels, the only question that falls for consideration is as to whether the Court below has committed any error of law in passing order on the amendment petition when the amendment if allowed oust the Jurisdiction of the Court.
8. There are conflicting views of different High Courts on the question as to whether an amendment can be allowed by a Court so as to oust its jurisdiction. But I subscribe the view taken by Rajasthan High Court, Andhra Pradesh High Court and Calcutta High Court.
9. In the case of Kundal Mal and Ors. v. Thikana Siryari and Ors. , a similar question came for consideration before the Rajasthan High Court. The High Court observed:
10. It is true that if the suit as framed were beyond the Jurisdiction of the lower Courts, they would have had no jurisdiction to make any amendment. However, from the plain as it stands, it cannot be said that the lower Court had no Jurisdiction in the suit when it was filed. The Civil Courts would have been, therefore, perfectly justified in exercising their powers of amendment even though the consequence of the amendment would be that the suit might become beyond the Jurisdiction of the Civil Courts. If as a result of amendment, the suit becomes one not cognizable by Civil Courts, they would have to return the plaint for presentation to proper Court.
It very frequently happens that the suits are under-valued in the beginning and the objection is raised and the valuation is increased with the result that in some cases, the case goes out of the jurisdiction of the Court in which it was filed and then the plaint is returned for presentation to the proper Court. It cannot be said that because at a later stage it comes out that the suit is not within the jurisdiction of the Court in which it was filed as a result of amendment the Court in which it was originally filed had no jurisdiction from the very beginning. I am, therefore inclined to agree with the ruling of the Hyderabad High Court in the case cited above AIR 1953 Hyd 212. It was held that:
While considering whether an amendment should be allowed or not, the Court ought not to go on the merits of the case. If, after allowing the amendment, the Court comes to the conclusion that the Court has no jurisdiction, the Court could return the plaint to the plaintiff to be presented in the proper Court.
In the ruling of the Madras High Court AIR 1928 Mad 400 relied on by the learned Counsel for the respondents and also by the lower appellate Court, it was held that no Court will permit a plaint to be so amended as to oust its own jurisdiction to try the suit. No reasons have been given for this view, nor has any authority been cited in the Judgment. With all respect to the learned Judge of the Madras High Court, who decided that case. I regret, I am unable to find myself in agreement with the view taken therein.
10. In the case of Makireddy Ramayyamma v. Menti Karmalakararao : AIR1983AP11 , the plaintiff filed suit for eviction of the defendant for recovery of certain amount of arrears of rent. The defendant denied the tenancy. The plaintiff then applied for amendment of plaint seeking relief of possession and for recovering the amount. In the proposed amendment, he valued the property at Rs. 7000/- and for the purpose of court fee, he valued the property at Rs. 5250/-. The District Munsif refused to allow the amendment on the ground that the scope of the suit will be altered and that the amendment was applied for when the suit reached the stage of trial. It was argued that if the property was correctly valued, it would take the suit beyond the pecuniary jurisdiction of the Munsif and therefore amendments should not be allowed. Allowing the amendments, the Andhra Pradesh High Court held:
When the suit which was originally filed could be tried by the District Munsif, it is only the District Munsif that is competent to decide whether the amendment applied, for should be allowed or refused on merits. The consideration as to whether subsequent to the amendment the District Munsif would still continue to have pecuniary jurisdiction does not arise at that stage. If as a result of the amendment the suit valuation exceeds the pecuniary jurisdiction of the District Munsif, he would naturally return the plaint for presentation in the proper Court. It will not therefore be right for the District Munsif to refuse the amendment merely on the basis that if the amendment is allowed, the suit would be beyond his pecuniary jurisdiction. The impugned order is accordingly set aside and the District Munsif is directed to permit the plaintiff to amend the plaint. It is open to the District Munsif if he is not satisfied with the valuation proposed by the plaintiff, to get the property valued. If on such revaluation he finds that he still has pecuniary jurisdiction, he will proceed with, the trial of the suit after giving an opportunity to the defendant to file any additional written statement regarding the valuation of the property. The Revision is accordingly allowed with no order as to costs.
11. Last but not the least in the case of In re Vivekananda Nidhi and Ors. v. Ashima Goswami : (1997)2CALLT48(HC) , a Bench of Calcutta High Court, considering all the earlier decisions referred to hereinabove, observed:
6. Mr. Choudhury appearing for the opposite party had drawn my attention to a single bench decision of Gujarat High Court reported in : AIR1973Guj283 , Patel Construction Co. Ltd. v. Shah Roychand Amulkh. In paragraph 10 of the said decision of the learned Judge of the Gujarat High Court considered the possible procedures which would be available in any case wherein pleadings are sought to be amended in such a manner that it would oust the jurisdiction of the Court in which the suit is initially instituted. In that paragraph the learned Judge visualised three possible procedures which Court can adopt.
These are:
(1) the Court would reject the application for such an amendment on the ground that the amendment would oust its jurisdiction in the matter on
(2) after finding the amendment is likely to oust the jurisdiction of the Court in the matter, the Court would return the plaint along with the amendment application to be filed in the proper Court; and
(3) the Court would grant the amendment and (if) it is found that as a result of the amendment, it loses its pecuniary jurisdiction to try the suit, it would return the amended plaint back to the plaintiff for presenting it to the proper Court. In paragraph 12 of the said decision reasons have been given as was done in the Division Bench decision reported in 1983 (2) Cal HN 7, Mohd. Jeeves Ali v. Rohima Ali, for not accepting the first possibility. In view of the reasons given by the Division Bench in respect of the first possibility which are binding on me sitting in a Single Bench. I do not feel it necessary to discuss on this possibility any further. So far as the second possibility is concerned, as noted by the learned Judge of the Gujarat High Court. I fully agree with the views expressed by the learned single Judge of the Gujarat High Court in that decision. I have already noted in my judgment earlier that if the unamended plaint and the application for amendment of the plaint are returned to the plaintiff for presentation before the proper Court, certain difficulties may arise. In my view, the learned Judge of the Gujarat High Court is correct in his observation that in the event the application for amendment of the plaint is rejected by the transferee Court, then that would obviously result in shuttling from one Court to the other without any fault of the litigant concerned. Therefore, in my view, the learned Judge was absolutely justified in not accepting the second alternative. The learned Judge of the Gujarat High Court accepted the third alternative and held that for the interest of justice, procedure of the Court would be to consider them and dispose of the application for amendment of the plaint and if the amendment is allowed by the Court then it will direct return of the plaint to the plaintiff under Order VII, Rule 10 of the Code of Civil Procedure. Similar view is expressed by a learned single Judge of Orissa High Court in the case of Simadri Panda v. Durgari China Aparna : AIR1982Ori25 .
7. Therefore, following the principle land down by the Division Bench of this Court in the case of Mohd. Jeeves Ali v. Rohima Ali 1983 (2) Cal HN 7, and also after considering the aforesaid decisions of different High Courts of India, I am unable to hold that the learned Munsif has in any way acted illegally and with material irregularity in the exercise of his jurisdiction in allowing the application for amendment of the plaint. Apart from that I cannot appreciate the stand of the defendant/petitioners in this revisional application also as I find from the order allowing the application for amendment of the plaint that it was allowed by the learned Munsif, without any objection being raised either by filing any written objection to the application for amendment of the plaint or by raising any objection by way of an argument. That being the position, I am of the view that there is no reason to interfere with the impugned order allowing the application for amendment of the plaint.
10. Mr. Choudhry, appearing on behalf of the plaintiff/opposite party however submitted that the learned District Judge, South 24 Pgs had jurisdiction to transfer the suit which was pending before the 2nd Court of Munsif at Alipore to the file of the 10th Assistant Distt. Judge, Alipore in the exercise of his power under Section 24(5) of the Code of Civil Procedure. According to Mr. Choudhary, in view of the introduction of Sub-section (5) of Section 24 of the Code of Civil Procedure by the Amendment Act of 1976 the Dist. Judge is now conferred with power to transfer the suit pending a Court not having the Jurisdiction to entertain the same to a Court of competent jurisdiction for its disposal. In order to appreciate the rival contentions of the parties, it would be necessary to consider the objects and reasons for inclusion of Section 24(5) of the Code of Civil Procedure. From the Law Commission's report on the question of introduction of Section 24(5) of th Code of Civil Procedure in the year 1977 it is evident that there was conflict of decision with regard to the question whether the old Section 24 of the Code of Civil Procedure applied in relation to transfer of a suit from a Court which had no jurisdiction to try it. According to Andhra Pradesh High Court language of Section 24 was very wide and there was no restriction or impediments in the High Court exercising power of transfer merely because there was a dispute regarding jurisdiction. This view was expressed by the Andhra Pradesh High Court in the case of Thirmala Reddy Mahalakshamma v. Mulkhari Muralidharan Rao : AIR1970AP194 . In the line of the decision of the Andhra Pradesh High Court similar view was also expressed by some other High Courts viz the decision reported in AIR 1955 Nagpur 44, Dr. K.L. Daftari v. K.L. Dubey and Anr. : AIR1934All569 , Narayan Das Gopal Das v. Khumilal Laxminarayan. The Sindh High Court in the case of Gangumal Sewaram v. Manik Ram Khubchand AIR 1932, Sindh 215 and the Mysore High Court in the case of S. Krishna Rao v. Gokuldas Harbhagavandas AIR 1955 Mysore 115 however expressed a contrary view. Law Commission in its report considered the aforesaid two contradictory views and opined that it was to adopt the wider view in the interest of expedition and accordingly recommended Sub-section (5) of Section 24 be inserted in the new Code. In my view, when Section 24 Sub-section (5) of the Code of Civil Procedure has been enacted to give a wider right to the High Court or to the District Court to transfer a suit pending in an incompetent Court to a Court which is competent to decide the suit for interest of expedition, it cannot now be said that the Distt. Judge, Alipore, South 24 Pgs. was not conferred with the power to transfer the suit from the 2nd Court of the Munsif to the Court of the 10th Assistant Distt. Judge at Alipore. Mr. Dasgupta appearing on behalf of the petitioners, relying on the decisions as noted herein earlier contended that proceedings in the suit pending before the Munsif. 2nd Court at Alipore would be a nullity and therefore, the transferee Court must start denovo in this matter. From the recommendations of Law Commission for introduction of Section 24, Sub-section (5) of the Code of Civil Procedure for which the aforesaid Sub-section has been inserted in Section 24 of the Code of Civil Procedure, I am unable to agree with Mr. Dasgupta that the Dist. Judge, 24 Pgs. South had no jurisdiction to transfer the suit from the 2nd Court of the Munsif to the 10th Court of the Assistant Dist. Judge, at Alipore. Apart from that Section 24(2) of the Code of Civil Procedure which clearly confers power on the transferee Court to retry the suit of transferred to proceed from the point at which it was transferred or withdrawn. Therefore it cannot be said that all orders and steps taken in the proceeding before the 2nd Court of the Munsif would become a nullity as soon as the Munsif, 2nd Court at Alipore had lost jurisdiction to try the suit. Apart from that it is an admitted position that the suit was filed in a competent Court that is to say before the second Munsif at Alipore who had the jurisdiction to try the suit before the plaint was amended. It is only because of the amendment effected during the pendency of the suit, the jurisdiction of the Munsif to entertain the suit was ousted. Therefore, it can not be said as argued by Mr. Dasgupta that all the orders and steps in the proceeding before the 2nd Court of the Munsif at Alipore shall become a nullity as soon as the jurisdiction of the Munsif is lost to interfere the suit due to amendment. Therefore, steps and orders passed in the suit before the 2nd Munsif at Alipore cannot be said to be without Jurisdiction and nullity because of the amendment of the plaint Since Section 24 of the Code of Civil procedure amply empowers the Dist. Judge to transfer the suit and under Section 24(2) of the Code of Civil Procedure, transferee Court is given the discretion to re-entry it or to proceed from the point at which it was transferred or withdrawn, it will be open to the transferee Court to decide whether the suit transferred to it should be re-entered or would proceed from the point of which it was transferred or withdrawn. Therefore, it is for the transferee Court to decide the above question after the suit is transferred to it. In this case admittedly the amended plaint has already been filed. Mr. Dasgupta in this connection raised a question that Section 24 of the Code of Civil Procedure was not exercised after the direction was made under Order VII, Rule 10 of the Code of Civil Procedure, as according to him, Section 24 could be applied when there was a proceeding pending. In my view, Mr. Dasgupta was right in his submission that Section 24 can be applied in a pending proceeding. Let me see whether the suit that has been transferred in the exercise of power under Section 24 of the Code of Civil Procedure was pending at the time the order of transfer was passed. For this purpose it is necessary to look into the order allowing the application for amendment of the plaint. From the order allowing the application for amendment of the plaint it does not appear that the learned Munsif after holding that he had got no jurisdiction any further to try the suit in view of his lack of pecuniary jurisdiction had not passed any order directing return of plaint for presentation before the appropriate Court. The learned Munsif has only directed the plaintiff to take steps in the matter. Therefore there is no order passed by the learned Munsif that in view of lack of pecuniary jurisdiction the plaint was returned to be presented to the appropriate Court for its disposal. Therefore, I must hold that until and unless a specific order under Order VII, Rule 10 of the Code of Civil Procedure is passed directing return of plaint it must be held that the suit was pending before the Munsif, 2nd Court at Alipore, and therefore, the power under Section 24 of the Code of Civil Procedure could be exercised by the learned Dist. Judge in the facts and circumstances of this case. Before leaving this question I may consider the several decisions which were cited by Mr. Dasgupta on the question of transfer. In the decision of Privy Council in the case of Ramdutt v. E.D. Sasoon AIR 1929 PC 103 : 1929 All LJ 254, it was considering whether the benefit of Section 14 of the Limitation Act could be available to a plaintiff in the case of a second suit where the first still was found to have been instituted in the Court which was found to have no jurisdiction, similar is the position in respect of AIR 1940 Mad 68. Chandrayya v. Seethanna.
This Privy Council judgment was followed in AIR 1939 Mad 724, Parvata Satyanarayan Murthy v. Sri Rajan Rao Venkata Kumara Muhipathi Surya Rao Bahadur. In the Madras High Court decision the point for consideration was that when the suit was instituted in a Court not having jurisdiction and plaint was returned under Order VII. Rule 10 of the CPC the date of representing the plaint to the latter Court was the date of its jurisdiction. While deciding the question raised which is at page 782 of the decision certain observations were made. Such observations as made in page 728 of the decision are as follows;
In this view the question whether the claim for rent for subsequent faslis adduced on the date of the representation of the plaints in the Revenue Court is barred by limitation was argued. I shall deal with it. It is now well settled that where a plaint is presented in a Court which has no jurisdiction and it is represented offer after return by that Court in a Court which has jurisdiction, the presentation in the latter Court must be deemed to be the date of its institution in the said Court. The proceedings in the former Court are of no avail and the proceedings in the latter cannot be treated as a continuation of the proceedings in the former suit.
12. Mr. V. Shivnath learned Counsel appearing for the petitioners, put heavy reliance on the decision of the Patna High Court in the case of Pandit Rudranath Mishir (supra), but the ratio decided in that case does not apply in the facts of the present case. In that case, the plaintiffs filed the suit in the Court of Sub Judge, Arrah for partition of certain joint family properties. Undisputedly, all the properties sought to be partitioned were situated in the District of Balia in Uttar Pradesh barring a savings bank account. The question of maintainability of the suit was raised by the office and thereupon the plaintiff filed a petition for amendment of the plaint which was allowed. The question of jurisdiction was then taken upon by the Court below. By way of amendment the plaintiff sought to add one property situated within Arrah town in order to bring the suit within the jurisdiction of the Court. Certainly, the Court below had no jurisdiction to decide the suit as originally filed for partition of joint family properties situated beyond the jurisdiction of that Court. In such a situation amendment petition filed in that suit for inclusion of certain properties ought not to have been heard by that Court.
13. It has not been disputed that the Court below had jurisdiction in the suit when the plaint was filed. The shape in which the suit was originally instituted is the test of jurisdiction. If any amendment of the plaint is sought for which amendment, if allowed, would exceed the pecuniary jurisdiction of the Court then in such circumstances, unless amendment petition is heard and allowed, the question of return of plaint does not arise.
14. In the light of principle enunciated herein above, in my considered opinion, the Court below rightly entertained the amendment petition and disposed of the same by passing the impugned order. As noticed above, after the amendment of the plaint, it was returned to the plaintiffs for filing it in the Court having jurisdiction and accordingly, the plaint was filed and summons have been issued to the defendants. For the reasons aforesaid, I do not find any error in the exercise of jurisdiction by the Court below in passing the impugned order. These writ applications are dismissed.