Mrs Laxmi Bai and Others Vs Kamalaksha G Nayak and Others - Citation 371370 - Court Judgment

Judgment:
ORDER

1. This revision petition is filed by defendants 1 to 4 in O.S. 201 of 1985, on the file of the I Additional Civil Judge, Mangalore against his order dated 24th September, 1992, allowing I.A. No. VIII and permitting the plaintiff (1st respondent herein) to amend the plaint, as sought for by him.

2. Respondents 2 to 4 herein are defendants 5 to 7 in the lower Court. For the purpose of convenience the parties will be referred to by the rank they hold in the lower Court.

3. The facts, giving raise to this petition, may briefly be stated as hereunder:

The plaintiff filed a suit in O.S. 201/85, on the file of the Civil Judge, Mangalore, against the defendants, who are the wife and children of one late K. Rama Rao for a declaration that he is entitled to continue in possession of the suit property by virtue of part performance of an agreement to sell dated 5-5-1978 executed by Rama Rao and for a permanent injunction restraining the defendants from interfering with his possession of the suit property. He alleged in the plaint that Rama Rao agreed to sell the suit property to him for Rs. 49,500/- and received a sum of Rs. 20,000/ - out of the consideration; that he was also put in possession of the suit property in part performance of the contract; that however Rama Rao died before the execution of the sale deed and that the defendants were now trying to interfere with his possession of the property.

4. The defendants admitted the execution of the agreement as well as receipt of Rs. 20,000/- by Rama Rao but they denied that the plaintiff was put in possession of the property in part performance of the agreement. The suit was valued at Rs. 24,750/- for the purpose of Court-fee and jurisdiction. As at that time it was the Civil Judge who had the pecuniary jurisdiction to try that suit it was filed before him.

The Karnataka Civil Courts Laws (Amendment) Act, 1989 (hereinafter called the 'Amendment Act'), received the assent of the Governor on 20-1-1989 and it came into force immediately. Section 17 of the Karnataka Civil Courts Act (hereinafter called the 'Act') was amended by substituting the words 'fifty thousand rupees' for the words 'ten thousand rupees'. By virtue of this amendment the pecuniary jurisdiction of the Court of the Munsif was raised from Rs. 10,000/- to Rs. 50,000/-.

Section 4(1) of the Amendment Act contains a provision for transfer of suits and appeals which were pending on the date the Amendment Act came into force. Section 4(1)(b) which is relevant for this case, reads as under:

4. Transfer of Suits and Appeals.--

(1) Notwithstanding anything contained in the Karnataka Act 11 of 1964 or Karnataka Act 21 of 1964 or in any other law or provisions having the force of law,--

(a).....

(b) original suits and proceedings of a civil nature the amount or value of the subject matter of which does not exceed fifty thousand rupees pending before the Court of a Civil Judge shall, on the date of commencement of this Act stand transferred to the Court of the Munsiff's and shall be disposed of by such Court in accordance with law as if such suits or proceedings concerned had been instituted or commenced in such Court.'

Though the Amendment Act came into force in 1989 itself, neither the parties nor the Court had noticed that the suit in question stood transferred to the Munsiff's Court and the proceedings continued before the Civil Judge. It would appear that sometime in 1992 the Court noticed that the suit had to be sent to the Munsiff's Court in view of the amendment of S. 17 of the Act. It is then that the plaintiff filed an application for amendment of the plaint to seek the relief of specific performance of the agreement to sell and to amend the value of the suit for purposes of jurisdiction and Court-fee to Rs. 74,250/-. The defendants opposed the amendment sought for on various grounds. Though one of the objections was that the amendment, if allowed, would take away the right vested in the defendants, inasmuch as, the relief of specific performance has become barred by time, the learned Civil Judge, has mentioned in the order that when it was pointed out that no time in the agreement had been prescribed for performance of the contract, the counsel for the defendants did not urge that ground. The main ground on which the application was opposed was that as the suit already stood transferred to Munsiff's Court and as the Civil Judge's Court had no jurisdiction to try the suit, that Court had also no jurisdiction to entertain an application for amendment or to pass any order there on.

The learned Civil Judge relying mainly on the decision of a Division Bench of the Allahabad High Court in Kundan Lal v. C. Narayan Lal : AIR1958All96 , held that the Court can consider the application for amendment even though it has no jurisdiction to try the suit and allowed the amendment which has the effect of bringing back the suit within the pecuniary jurisdiction of the Civil Judge's Court. It is the validity of this order which is challenged in this revision petition.

4A. The only ground that was urged by the learned counsel for the defendants-revision-petitioners was that by virtue of S. 4(1)(b) of the Amendment Act, the Civil Judge lost jurisdiction over the suit which stood transferred to the Court of the Munsiff and that as such, the Civil Judge had no jurisdiction at all to either entertain an application for amendment or to allow it.

5. Sri S. G. Sundara Swamy, learned senior advocate appearing for the plaintiff-respondent firstly contended that it cannot be said that the Civil Judge had no jurisdiction to consider or allow the application for amendment filed by the plaintiff. His line of argument was that under S. 16 of the Act, the Court of Civil Judge has unlimited pecuniary jurisdiction to try all original proceedings of a civil nature; that under S. 17, it is only the Court of Munsiff which has limited pecuniary jurisdiction; that it is because of the stipulation in S. 15, C.P.C. a suit coming within the pecuniary limits of the jurisdiction of the Munsiff will have to be filed in that Court and not because the Civil Judge has no jurisdiction to entertain such a suit; that a Court of Civil Judge cannot be said to lack jurisdiction to try a suit which could be tried in the Munsiff's Court; that in the present case, though by virtue of the amendment of S. 17 of the Act, the pecuniary jurisdiction to try this suit became available to the Court of Munsiff, as S. 16 has not been amended it cannot be said that the Civil Judge's Court had no jurisdiction at all to deal with this suit. According to him even if the Civil Judge's Court could not try or dispose of the suit, inasmuch as, it fell within the pecuniary limits of the jurisdiction of the Court of Munsiff there was no bar for that Court to entertain or allow an application for amendment which would take the suit outside the pecuniary limits of the Munsiff's jurisdiction and thus enable the Civil Judge's Court to continue the suit. He placed reliance not only on Kundan Lal's case, referred to above, but also on theDecision of this High Court in Messrs. ShriLakshmi Films v. Messrs. Goodwill Pictures,1961 MIJ 327.

The second contention urged by Sri Sundara Swamy was that even if the impugned order could be said to be illegal this is not a fit case for the Court to exercise its discretion under Section 115 C.P.C. to set it aside. According to him, the impugned order had not caused any prejudice to the defendants but on the other hand, it is a just order and that by allowing the amendment the Civil Judge has avoided further delay in the matter and that as such, this Court should not interfere with that order.

6. The points that requires to be considered are :

1. Whether consequent to the amendment of Section 17 of the Act, and in view of the Section 4(1)(b) of the Amendment Act, the Civil Judge had no jurisdiction at all to consider or allow the amendment sought for by the plaintiff ?

2. If the Civil Judge could not have passed the order in view of Section 4(1)(b) of the Amendment Act whether this is a fit case where this Court should exercise its discretion and interefere with that order?

7. Before considering the question whether the Civil Judge had or had no jurisdiction to pass the impugned order, it would be worthwhile to take note of the distinction between the inherent lack of jurisdiction of a Court to try a particular case and lack of territorial or pecuniary jurisdiction to try that case. If a Court lacks inherent jurisdiction in the sense that it has no competence at all to try the matter, then whatever is done by such Court would be null and void irrespective of the fact that no objection had been raised by any party in that regard. But if the Court has inherent competency to try a matter but lacks only territorial or pecuniary jurisdiction, then the decision or order passed by that Court would not be ab initio void. Objection regarding territorial or pecuniary jurisdiction of a Court could be waived by parties. In a case where an order is passed by a Court having no territorial or pecuniary jurisdiction, it would be an order by a Court with defective jurdisdicton, which is amenable for correction in appeal or revision but it would not be a null or void order. Even such an order cannot be set aside in appeal or revision unless objection regarding the jurisdiction had been raised at the earliest point of time and unless there has been failure of justice. These principles can be gathered from Section 21 C.P.C. and the decision of the Supreme Court in Hiralal v. Kalinath : [1962]2SCR747 .

8. Under Section 16 of the Act, the jurisdiction of the Court of Civil Judge shall extend to all original suits and proceedings of a civil nature. There is no pecuniary limitation with regard to suits triable by a Civil Judge. However the Court of Munsiff is vested with jurisdiction to try suits the value of the subject matter of which does not exceed Rs. 10,000/-prior to the amendment and Rs. 50,000/- after the amendment. Though the Court of Civil Judge is also competent to try such a suit, in view of Section 15 C.P.C. which stipulates that every suit shall be instituted in the Court of lowest grade competent to try it, the Court of Civil Judge cannot try the same. Section 15 C.P.C. has been held to be a rule of convenience and is not intended to deprive the superior Court of its jurisdiction (See Chan-naveerappa v. Channa Basappa : ILR1990KAR1293 . As such, if the Court of Civil Judge passes an order or judgment in a suit which falls within the pecuniary limits of the jurisdiction of Munsiff, then such order or judgment would not be null or void and it can be set aside in appeal or revision only if the objection regarding the pecuniary jurisdiction had been taken at the earliest possible time and if such order or judgment has resulted in failure of justice.

9. The first point to be considered in this case is whether the Civil Judge did not have jurisdiction to pass the impugned order after the Amendment Act came into force?

The answer to that point depends on the question whether a Court having no pecuniary or territorial jurisdiction to try a suit, is incompetent to pass any such order. This point has been considered in Kundan Lal'scase by the Division Bench of the Allahabad High Court and their Lordships have held as hereunder :

It cannot be doubted that a Court has jurisdiction to pass certain orders even though it has no jurisdiction to try the suit; it has power to find that it is beyond its jurisdiction, it has power to order the plaint to be amended so as to enhance the valuation and it has power to return the plaint for presentation to a competent Court. When a Court has jurisdiction to pass certain orders even though it has no jurisdiction to try the suit, there is no justification for saying that it cannot allow an amendment, if it has no jurisdiction to try the suit.'

10. A similar point came up for consideration before this High Court in Srilakshmi Film's case, referred to above. In that case the plaintiff had filed a suit at Bangalore and it was found that no part of the cause of action for the reliefs sought for had arisen within the territorial jurisdiction of the Bangalore Court. The plaintiff then sought for amendment of the plaint to include the relief for accounts, the cause of action for which arose within the territorial jurisdiction of Bangalore Court. The amendment was opposed by the defendants on the ground that as the Court at Bangalore had no jurisdiction to entertain the suit as brought, it had also no jurisdiction to accept any amendment application. Dealing with this argument this High Court has observed as hereunder :

'.....Logically speaking this view appearsto be correct. If the Court had no right to try the case itself it follows that it cannot give any directions in that very suit. But should logic be allowed to outrun justice? Suppose the plaint is returned by the trial Court to the plaintiff for presentation to the proper Court and the plaintiff amends the plaint in the manner in which he wants to amend now and represents the plaint to the same Court, can the Court refuse to entertain that suit? It is not the case of the defendant that any portion of the suit claimed is barred by limitation. Therefore, it would be a sheer waste of time to stick to the form of the law and forget its substance......'

This High Court referred with approval to the following observations of the Allahabad High Court in Devakinandan Pandey v. Ramachandra Tewari : AIR1938All17 :

'The Munsiff held that as he had no jurisdiction to entertain the suit, he was not competent to allow the amendment prayed for by the plaintiff. This view may be technically right but is of no practical importance if the amended plaint would bring the suit within the jurisdiction of the Civil Court. Assuming that the plaint as ordinarily filed, disclosed a 'suit not cognizable by the Civil Court, and assuming also that the amendment would have made it cognizable by such a Court, it was open to the plaintiff to amend it as soon as it was returned to him for presentation to the proper Court and to represent it to the same Court which was bound to entertain it, as ex hypothesi the suit would have become one which the Civil Court was competent to decide. For all practical purposes therefore, we should consider in the present revision whether the plaint, if the same had been allowed to be amended, would have disclosed a suit which the Civil Court had jurisdiction to decide.'...

11. Dealing with the question as to how rules of procedure have to be followed, the following dictum has been laid down by this Court:

'.....If rules of procedure are viewed asrituals, ends of justice might suffer. Courts must bear in mind the true purpose of the relevant rules and should not take a pedantic view of the those rules. Undoubtedly they have their own importance and those who are charged with the responsibility of rendering justice are not free to ignore them. But often times the question is one of approach. So long as there is nothing in the rule prohibiting a particular course of action the rules must be so read as to advance the cause of justice....'

In the above case the High Court allowed the amendment application at the stage ofrevision. This decision indicates that even though a Court may not have pecuniary or territorial jurisdiction to try a suit there is no bar for such Court entertaining or allowing an application for amendment of the plaint which would bring the suit within its territorial or pecuniary jurisdiction, provided such amendment is otherwise permissible.

12. In the instant case, when the suit was filed it had to be filed in the Civil Judge's Court, as at that time the Court of Munsiff did not have pecuniary jurisdiction to entertain it. During the pendency of the suit, the pecuniary jurisdiction to try this suit became available to the Court of Munsiff and consequently Court of Civil Judge had to send the suit to the Court of Munsiff for disposal. But at that stage the application for amendment has been filed seeking relief of specific performance, which if allowed, raises the value of the subject matter of the suit, and takes it out of the pecuniary jurisdiction of the Munsiff. It may be noted that the additional relief sought for is based entirely on the averments already made in the plaint. The suit as brought is based on the agreement of sale and alleged delivery of possession of the suit property in part performance of the contract. The plaintiff does not propose to make any new averments in the plaint. It was not disputed before me that on the averments already made in the plaint the plaintiff could have sought for specific performance of the agreement even when the suit was filed. As already pointed out though in the lower Court at first it was urged that the relief now sought for was barred by time that objection was not pursued after it was pointed out that no time limit had been prescribed for performance. Even in this revision petition, the learned Counsel for the defendants-petitioners did not contend that the relief now sought for had become barred by time. In the circumstances, in the ordinary course the amendment which is now sought for had to be allowed. In view of the decisions of this High Court and the Allahabad High Court, referred to above, it cannot be said that the Civil Judge had no jurisdiction at all to pass an order on the amendment application, though by that date by virtue of the provisions of the Amendment Act the Munsiff's Court had been the pecuniary jurisdiction to try and dispose of that suit.

13. The learned Counsel for the defendants/petitioners, sought to distinguish the above two cases from the present case by pointing out that in those two cases the suits were still pending before the Courts in which they had been originally filed, whereas in the present case, the suit stood automatically transferred to the Munsiff Court by virtue of Section 4(1)(b) of the Amendment Act and therefore, the Civil Judge could not have exercised any jurisdiction to pass any order in this case. It is difficult to accept this contention for more than one reason.

14. A reading of Section 4 of the Amendment Act indicates that the object of the rule is to avoid any controversy on the question whether the provisions as amended by the Amendment Act would be applicable to suits, appeals and other proceedings which were pending on the date the Amendment Act came into force and to make it clear that the amended provisions are applicable even to pending proceedings and that pending appeals', suits or proceedings should be disposed of by the Forums competent to dispose them of as per the Amended provisions. To avoid the necessity of orders being separately passed in each pending case transferring it to the Court which was vested with the jurisdiction to try that matter, a statutory transfer is provided. The main object of the provision is to avoid delay in the transfer of such suits or proceedings. Intendment of Section 4 is not to prevent the Court where appeal, suit or proceeding is pending from passing any judicial order therein after the Amendment Act came into force. It may be noted that Section 4(1)(b) states that the suits and proceedings pending before the Court of Civil Judge shall stand transferred to the Court of the Munsiff. In the area over which a civil Judge exercises jurisdiction, generally there will be two or more Munsiffs exercising jurisdiction over different parts of that area. There may be controversy as to within the territorial limits of which Munsiff Court cause of action for that suit has arisen and as to which Court the case must be taken to havebeen transferred. Section 4 does not purport to prohibit the Civil Judge from deciding that question. If the Civil Judge passes an order in that regard it is bound to be a judicial order and it cannot be said that it would be an order without jurisdiction. There may be cases where two Courts of Munsiff in that area may have territorial jurisdiction to try that suit, as in case where some of the suit properties are located in the local limits of one Court and the other suit properties are in the local limits of another Court, or as in a case where parts of cause of action may have arisen in the territorial limits of more than one Munsiff Court. In such a case the Civil Judge may entertain a doubt as to which of the two or more Courts of Munsiff the suit stands transferred. For such contingency a provision is made in Section 4(2) of the Amendment Act, which reads as hereunder :

'(2) If there be any doubt as to which Court a suit, an appeal or proceedings shall stand transferred in accordance with the provisions of sub-section (1), the Court designated by the High Court shall be the Court to which such suit, appeal or proceedings shall be transferred and the decision of the High Court shall be final.'

The Civil Judge has to pass an order giving reasons as to why he entertains doubt about the Court to which the suit, stands transferred and refer the matter to the High Court for the purpose of designating the Court under Section 4(2) of the Amendment Act. That would necessarily be a judicial order. Thus it is seen that merely because Section 4 states that the suit or proceeding stands transferred from the Court of the Civil Judge, it cannot be said that the Civil Judge is precluded from passing any order therein after the Amendment Act came into force.

15. Once it is found that on the basis of Section 4(1) it cannot be said that the Civil Judge has no jurisdiction at all to pass any order after the Amendment Act came into force in the suits which stood transferred, the point to be next considered is whether that Court had lost jurisdiction to allow an amendment of the plaint which takes the suit outside the pecuniary limits of Munsiff's Court.

16. If it is to be held that because of Section 4(1)(b) the Civil Judge could not have considered and allowed the amendment application, the result would be that the suit which is already old has to be sent to the Munisiff's Court where the amendment application is bound to be allowed, resulting in the plaint being returned for presentation to proper Court and the plaint again being presented before the Civil Judge's Court. This involves unnecessary delay in the proceedings. It could not have been the intention of the Legislature while enacting Section 4 to prevent the Court of Civil Judge permitting such an amendment of the plaint. It can be presumed that the Legislature would never intend to protract proceedings while enacting any procedural rule and that the object of all the procedural laws are to expedite proceedings in Court. Whenever any procedural law is susceptible to more than one reasonable interpretation, the one which will have the effect of speeding up proceedings in Court without at the same time defeating the object of the law or causing injustice, should be adopted in preference to the one which may have the effect of delaying the proceedings. As observed in Srilakshmi Film's case, the Court should not take a pedantic view of Section 4(1)(b). There is nothing in that provision which prohibits the Court where the suit was pending prior to the Amendment Act from considering any application for amendment of the plaint, which if allowed, would avoid the necessity of transferring the suit to the Court of the Munsiff. Hence merely because there is, provision of statutory transfer under Section 4(1)(b) it cannot be said that the principles laid down in Kundan Lal's case and. Messrs. Srilakshmi Films case do not apply to the present case. In the circumstances it has to be held that the impugned order cannot be characterised as an order passed by the Court without jurisdiction.

17. Even if it could be said that the civil Judge could not have passed this order in view of the provisions of Section 4(1)(b), for the reason alone that order cannot be set aside in revision. The defendants-petitioners mustshow that the order has resulted in failure of justice. They have not been able to show as to how this order has caused any injustice. On the other hand, by passing this order, the learned Civil Judge has avoided unnecessary delay in the suit being sent to the Munsiff Court where the amendment application had again to be considered and when allowed the suit had to again to be represented to the Civil Judge's Court. This suit is already more than 8 years old and it said that it is also part heard. The impugned order has enabled the Civil Judge to continue the suit and to dispose it off early.

18. In H. S. Siddappa v. Lakshmamma, 1965 (1) MLJ 232 : (AIR 1965 Mys 313) it has been held that where the order of a subordinate Court though it suffers from an illegality or irregularity, has brought about a just result and where setting aside that order would bring about an unjust result, the High Court would not interfere with such an order.

19. In the present case, if the impugned order is set aside it would only prolong the litigation and neither party would in any way be benefitted. The impugned order is essentially a just order and even the defendants have not alleged that it has caused any prejudice to them. In the circumstances, even if it could be said that the order is illegal this is not a fit case where this Court should exercise its discretion under Section 115 C.P.C. and interefere with it.

20. For the above reasons, this revision petition is dismissed.

21. Petition dismissed.

Subject	Property ;Contract
Court	Karnataka High Court
Decided On	Jun-01-1993
Case Number	C.R.P. No. 4783 of 1992
Judge	S. Venkataraman, J.
Reported in	AIR1994Kant174; ILR1993KAR1936; 1993(2)KarLJ419
Acts	Code of Civil Procedure (CPC), 1908 - Sections 15, 21 and 115 - Order 6, Rule 17; Karnataka Civil Courts Laws (Amendment) Act, 1989 - Sections 4(1), 16 and 17; Karnataka Act, 1964
Appellant	Mrs. Laxmi Bai and Others
Respondent	Kamalaksha G. Nayak and Others
Appellant Advocate	Mr. K. Shivaji Rao, Adv.
Respondent Advocate	Mr. S.G. Sundaraswamy, Sr. Adv. and ;Mr. C.S. Dwarakanath, Adv.

Mrs. Laxmi Bai and Others Vs. Kamalaksha G. Nayak and Others - Court Judgment