Andhra Pradesh High Court - Amravati
Chennapatnam Muralinath vs Shaik Nazer Ahammed on 24 September, 2024
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+C.M.A. No.454 OF 2024
% 24.09.2024
# Chennapatnam Muralinath
......Appellant
And:
$ Shaik Nazer Ahammed
....Respondent.
!Counsel for the appellant : Sri T. Ashok Srivastava
^Counsel for the respondent : ----
<Gist:
>Head Note:
? Cases referred:
1
2024 SCC Online Bom 550
2
(2011) 4 KLT 452
3
(2011) 4 KLT 452
4
1999 (1) ALD 222
5
2007 (6) ALD 561 (DB)
6
2018 (5) ALD 389 (DB)
7
(2022) 16 SCC 1
8
2002 SCC OnLine AP 298
9
2009 SCC OnLine AP 602
2
HIGH COURT OF ANDHRA PRADESH
****
C.M.A. No.454 OF 2024
DATE OF JUDGMENT PRONOUNCED: 24.09.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the Yes/No
fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY,J
3
HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
HON'BLE SRI JUSTICE NYAPATHY VIJAY
C.M.A.No.454 of 2024
JUDGMENT:(Per Hon‟ble Sri Justice Nyapathy Vijay) This Appeal is filed under Order 43 Rule 1 C.P.C. questioning the order dated 20.03.2024 in C.F.R.No.106 of 2023 in an un- numbered O.S.No. of 2024 passed by the III Additional District Judge, Kurnool at Nandyal.
2. The Relevant facts are as under:
Appellant is the plaintiff. Suit is filed for specific performance of agreement of sale dated 19.04.2014 executed for a consideration of Rs.47,70,000/-. It was contended that a major part of sale consideration i.e Rs.47,25,000/- was paid to the defendant, but the defendant was not coming forward to execute the sale deed, hence the suit for specific performance was filed.
3. Alternatively, the appellant sought refund of sale consideration amount with interest @ 24% per annum from the date of filing of the suit till the date of realization. The relief sought by the appellant/plaintiff was valued at Rs.1,08,42,666/-. The appellant paid 4 Court fee of Rs.1,12,226/- on the highest pecuniary relief i.e. alternative relief.
4. The District Court had raised an objection that though the primary relief of specific performance of agreement of sale is for Rs.47,70,000/- only which is below the pecuniary jurisdiction of the District Court even though, the alternative relief for refund of sale consideration is Rs.1,08,42,666/-, the suit is not maintainable in the said Court.
5. On hearing the learned counsel for the appellant/plaintiff, the District Court returned the plaint by holding that the suit is not maintainable in the said Court reiterating the objection earlier taken. Hence, the presence appeal.
6. Heard Sri T.Ashok Srivastava, learned counsel for the appellant. Since the suit is not numbered, this Court did not deem it fit to issue notice to the respondent on this aspect as the issue is between the Court and the plaintiff.
7. Learned counsel for the appellant contended that Court fee is paid on the highest relief i.e Rs.1,12,226/- on the alternative relief and relied on order of this Court in Tarlada Ramu v. Penki Raminaidu (CRP.No.4154 of 2018) Rabo Bank v. State Bank of India1 of 1 2024 SCC Online Bom 550 5 Bombay High Court and Sreekumara Samajam v. Thilakan2 of Kerala High Court in support of his contention.
8. The issue that falls for consideration now is, whether the District Court has pecuniary jurisdiction to entertain the suit though the primary relief for specific performance is less than the pecuniary jurisdiction of Rs.50 lakhs for District Court even though the alternative relief is for Rs.1,08,42,666/-.
9. In the cited case, Tarlada Ramu v. Penki Raminaidu, the issue therein was with regard to valuation of suit for specific performance. In that case, this Court held that the Court fee has to be paid on the highest relief. In this case, there is no dispute as such, since the plaintiff/appellant had paid Court fee on the alternative relief for Rs.1,08,42,666/-. Similar is the ratio in Sreekumara Samajam v. Thilakan3 of Kerala High Court.
10. Section 16 of the A.P.Civil Courts Act, 1972 specifies the pecuniary jurisdiction limits of the Civil Courts. Section 16(1) and Section 16(2) thereof specifies the pecuniary jurisdiction of District Court and Court of Senior Civil Judge and the same reads as under: 2
(2011) 4 KLT 452 3 (2011) 4 KLT 452 6 "Section 16. Jurisdiction of District Judge, Senior Civil Judge and Junior Civil Judge in original suits and other proceedings -
(1) The pecuniary jurisdiction of a District Judge, shall subject to the provisions of the Code of Civil Procedure, 1908 and the other provisions of this Act, extend to all original suits and proceedings of a Civil nature including Land Acquisition original petitions, the amount or value of the subject matter of which exceeds rupees fifty lakhs".
(2) The pecuniary jurisdiction of a Senior Civil Judge shall extend to all like suits and proceedings of a Civil nature including Land Acquisition original petitions not otherwise exempted from his cognizance under any other law for the time being in force, the amount or value of the subject matter of which exceeds rupees twenty lakhs but does not exceed rupees fifty lakhs."
11. The pecuniary jurisdictions were being amended from time to time by the State and the last amendment was in the year 2018 vide Act, 26 of 2018, whereunder the minimum and maximum pecuniary limits were fixed for the District Court and Court of Senior Civil Judge.
12. The other relevant provisions of law for this case are Section 6(2) and section 50(1) of the A.P.Court Fees and Suit Valuation Act, 1956 (for short „the Act‟). Section 6(2) of the Act states that where 7 more than one relief is sought, the plaint shall be chargeable with the highest of the fees leviable on the reliefs sought. Section 6(2) reads as under;
"Section 6 (2): Where more reliefs than one based on the same cause of action are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable on the reliefs."
13. The Section 50(1) of the Act provides for valuation of the suits. In short, it states that for determination of jurisdiction of Civil Court, the value taken for computing Court fee shall be the determining factor. Section 50(1) of the Act reads as under;
"50. Suits not otherwise provided for :- (1) If no specific provision is made in this Act or in any other law regarding the value of any suit for the purpose of determining the jurisdiction of Courts, value for that purpose and value for the purpose of computing the fee payable under this Act shall be the same."
14. A Full Bench of this Court in Kalla Yadagiri v. Kotha Bal Reddy4 had considered the meaning of the "amount or value of the subject matter" occurring in Section 16 of the A.P.Civil Courts Act,1972 and held at paragraphs 7 and 8 as under;
"7.....The words "amount or value of the subject matter" in conjunction with words "suits and proceedings"
under Section 16(2) of Civil Courts Act do not connote the 4 1999 (1) ALD 222 8 entire value of the property involved, be it movable or immovable or right attached to the same...."
8. What decides the jurisdiction with regard to a particular case is the nature of the claim as brought. The plaintiff is bound to assess the relief he claims on the basis of the benefit he seeks to obtain by filing the suit. For instance, in a suit for redemption of mortgage, the valuation is on the amount due to the mortgagee, which is the value of the relief and the suit is not valued taking the value of the property. So also, in the case of foreclosure, the relief is valued on the basis of the total amount due and not of the value of the property mortgaged. In a suit for partition of joint family property, the value for the purpose of jurisdiction is the value of the share claimed by the plaintiff and not of the whole estate. In a suit for injunction simpliciter, it is the value of the relief claimed and not the value of the property involved. In a suit for eviction against the tenant, the value is the annual rental value and not the value of the property involved. In a suit for specific performance of enforcement of agreement, it is the consideration amount stated in the agreement which forms the valuation of the suit and not the value of the property on the date of the presentation of the plaint. We need not multiply the instances and suffice it to say that the proper method is to value for the Court-fees first and take that value for the purpose of jurisdiction, for, value will control the matter for Court-fees and jurisdiction. It is not the value of the thing affected that settles the value of the thing affected that settles the value of the relief sought, but it is the value of the relief sought, which determines the jurisdiction. 9
15. In the same paragraph, it was also held that value of the relief for the purpose of Court-fees determines the pecuniary jurisdiction of Civil Court. The paragraph 8 further reads as under;
"8. .. "Subject matter" is not the same thing as property. Subject matter is the substance for adjudication and it has reference to the right which the plaintiff seeks to enforce and the valuation of the suit depends upon the value of the subject matter thereof and the same is valued according to the A.P. Courts Fees and Suits Valuation Act, 1956 and not A.P. Civil Courts Act, 1972. There are several judicial precedents supporting our view that the value of the relief for the purpose of Court-fees determines the jurisdiction and we need not state those plethora of precedents and suffice it to mention a judgment of the Supreme Court directly on the point dealing with analogous provision in the Suits Valuation Act, 1887, in Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245. It is apt to extract the relevant portion of the said judgment:
"...........There can be little doubt that the effect of the provisions of Section 8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of Court-fees and that is natural enough. The computation of Court-fees in suits falling under Section 7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of Court-fees, that determines the value for jurisdiction. The value for Court-fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value of the Court-fees stated by the plaintiff that is of 10 primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of Court-fees that determines the value for jurisdiction in the suit and not vice versa."
16. The above cited Full Bench case was cited and followed by two Division Benches of this Court in Y.Venkata Sesha Reddy v. Chembeti Kousalyamma and another5 and Condore Health Care Pvt. Ltd., Secunderabad and another v. Corem Pharma Pvt. Ltd., Secunderabad6.
17. Coming back to the facts of this case, the plaintiff had paid Court fee of Rs.1,12,226/- as the alternative relief sought is Rs.1,08,42,666/-. Considering Section 6(2) and Section 50(1) of the Act, and the Full Bench decision referred supra, the valuation of the suit for the purpose of determining pecuniary jurisdiction is Rs.1,08,42,666/-. Therefore, the District Court alone has pecuniary jurisdiction to entertain the suit as per Section 16(1) of the AP Civil Courts Act, 1972.
18. In view of the aforesaid reasons, the order of the III Additional District Judge, Kurnool at Nandyal in C.F.R.No.106 of 2023 in 5 2007 (6) ALD 561 (DB) 6 2018 (5) ALD 389 (DB) 11 unnumbered O.S.No. of 2024 dated 20.03.2024 deserves to be set aside and the Civil Miscellaneous Appeal deserves to be allowed.
___________________ NYAPATHY VIJAY, J (PER HON'BLE SRI JUSTICE RAVI NATH TILHARI :
19. I am in agreement with the view taken; the reasons assigned and that the appeal deserves to be allowed and the impugned order deserves to be set aside. However, I wish to add few words of my own.
20. The appellant is the plaintiff in the suit for the specific performance of agreement of sale. The plaint has been returned by the order dated 20.03.2024 under challenge. The learned III Additional District Judge, Kurnool at Nandyal has assigned the reasons that the plaintiff approached the Court for two reliefs. The first relief is for specific performance of agreement of sale for the sale consideration of Rs.47,70,000/-. The second relief though alternative is for refund of the sale consideration with interest @ 24% p.a i.e. of Rs.1,08,42,666/-. The learned court was of the view that the plaintiff had two options. If he intended to approach the III Additional District Judge, Kurnool, he had to file for the relief of refund of sale consideration with interest, and if he intended to seek the specific performance, he had to 12 approach the competent and jurisdictional court (i.e. other than the court of the III Additional District Judge). The learned III Additional District Judge was of the view that its pecuniary jurisdiction was with respect to the 2nd relief and not for the first relief considering their respective valuations. In other words, in substance, the learned court was of the view that the plaint could be maintained only for one relief at a time which the plaintiff had to choose either the first relief or the alternative second relief. If he intended for the second alternative relief then only the suit would be maintainable in the court of the III Additional District Judge, and as the petitioner had claimed both the reliefs, the court had no option but to return the plaint.
21. It is a suit for specific performance of contract. Section 22 of the Specific Relief Act, 1963 deserves reproduction as under:
22. Power to grant relief for possession, partition, refund of earnest money, etc.--
(1)Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
(a)possession, or partition and separate possession, of the property, in addition to such performance; or
(b)any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.13
(2)No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3)The power of the court to grant relief under clause (b) of sub-
section (1) shall be without prejudice to its powers to award compensation under section 21."
22. Section 22(1) of Specific Relief Act, 1963 thus provides that notwithstanding anything to the contrary contained in C.P.C, any person suing for the specific performance of the contract for the transfer of immovable property, may in an appropriate case ask for, (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. Sub Section (2) of Section 22, provides that no relief under Clause (a) or (b) of sub section(1) shall be granted by the court unless it has been specifically claimed. The proviso, however, provides that, where the plaintiff has not claimed any such relief in the plaint, the court shall at any stage of the proceedings allow him to amend the plaint on such terms as may be just, for including a claim for such relief.
23. It is evident from Section 22 of Specific Relief Act, 1963 that the plaintiff has to specifically claim relief for refund of earnest money or 14 deposit paid. If such a relief is not specifically claimed in plaint, the same shall not be granted by the court, though the court at any stage of the proceedings of the suit may allow the plaintiff to amend the plaint so as to claim such a relief. So, in an appropriate case where the plaintiff is suing for the specific performance of contract for the transfer of immovable property he shall also ask for refund of the earnest money, in case of refusal of specific performance of contract. If he does not specifically claim and also does not amend the plaint during the pendency of the suit, such relief will not be granted, the grant being barred by Section 22 of the Specific Relief Act, 1963.
24. In Life Insurance Corporation Of India vs Sanjeev Builders Private Limited7, the Hon‟ble Apex Court observed that if the two suits and the relief claimed therein are based on the same cause of action then the subsequent suit will become barred under Order II Rule 2 of the CPC. The Hon‟ble Apex Court, in the context of Section 22 of Specific Relief Act, 1963, also observed that a plaintiff who claims specific performance of a contract for the transfer of immovable property, may in an appropriate case ask for possession, partition and separate possession of the property, in addition to specific performance and he may also claim any other relief including the refund of earnest money or deposit paid, in case the claim for 7 (2022) 16 SCC 1 15 specific performance is refused. Corresponding to the provisions of sub-section (5) of Section 21, sub-section (2) of Section 22 stipulates that such relief cannot be granted by the court unless it has been specifically claimed. However, the proviso requires that the court shall at any stage of the proceedings allow the plaintiff to amend the plaint to claim such relief where it has not been originally claimed on such terms which may appear just.
25. Para 71 of Sanjeev Builders Private Limited (supra) reproduced as under:
"71. Section 22 has a non-obstante provision which overrides the CPC. A plaintiff who claims specific performance of a contract for the transfer of immovable property, may in an appropriate case ask for possession, partition and separate possession of the property, in addition to specific performance. The plaintiff may also claim any other relief including the refund of earnest money or deposit paid, in case the claim for specific performance is refused. Corresponding to the provisions of sub- section (5) of Section 21, sub-section (2) of Section 22 stipulates that such relief cannot be granted by the court unless it has been specifically claimed. However, the proviso requires that the court shall at any stage of the proceedings allow the plaintiff to amend the plaint to claim such relief where it has not been originally claimed on such terms which may appear just."16
26. In Koneru Syam Sundara Rao and another vs. Pendurti Kanaka Durga8, upon which learned counsel for the appellant placed reliance, it was held that the plaintiff was entitled for the refund of the said amount with interest, but the decree for refund of the earnest money or deposit, unless it has been specifically claimed in the suit by the plaintiff, could not be granted, as there was a specific bar under Section 22(2) of the Specific Relief Act.
27. In Mudureddipalle Sanjeeva Reddy vs. Butturu Rama Mohan Reddy and others9, cited by the learned counsel for the appellant, it was observed that in a suit for specific performance, a buyer can pray for the alternative relief of partition, or refund of the earnest money, as provided for under Section 22 of the Specific Relief Act, 1963.
28. Further, if such relief is not claimed in suit for specific performance of contract, the plaintiff will not be able to file a fresh suit for the relief of refund of the earnest money, on rejection of the relief for specific performance, as then, the bar of Order II Rule 2 CPC shall also get attracted which prevents a plaintiff from filing a second suit based on the same cause of action as the first suit.
11. Order II Rule 2 CPC provides as under:
8
2002 SCC OnLine AP 298 9 2009 SCC OnLine AP 602 17 "2. Suit to include the whole claim.
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
29. In Sanjeev Builders Private Limited (supra), it was held that Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied. It was further held that the field of amendment of pleadings falls far beyond the purview of Order 22(2). The plea of amendment is raised in the same suit, which is also permitted by Section 22(2) proviso of Specific Relief Act, 1963.
30. Para 50 of Snajeev Builders Private Limited (supra) is reproduced as under:
"50. In the light of the principles discussed and the law laid down by the Constitution Bench as also the other decisions discussed above, we are of the view that if the two suits and the relief claimed therein are based on the same cause of action then the subsequent suit will become barred under Order II Rule 2 of the CPC. However, we do not find any merit in the contention raised on behalf of the appellant herein that the amendment application is liable to be rejected by applying the bar under Order II Rule 2 18 of the CPC. Order II Rule 2 of the CPC cannot apply to an amendment which is sought on an existing suit.
51. In the aforesaid context, we may refer to with approval a decision rendered by the High Court of Delhi in the case of Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali Despande & Ors., (2003) 102 DLT 570. Paras 17 and 18 resply indicate that the bar under Order II Rule 2 of the CPC is only for a subsequent suit. These paras read as under:
"17. Reverting to the preliminary objections raised by the appellant against the maintainability of the application for amendment, one would come across with a peculiar plea of proposed amendment being barred under Order II Rule 2 CPC. General rule enacted under Order II Rule 2.(1) CPC is that every suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Order II Rule
2.(2) precludes a subsequent suit on any part of claim, which had been omitted or intentionally relinquished by the plaintiff in an earlier suit based on the same cause of action. Similarly, where the plaintiff is entitled to more than one relief in respect of the same cause of action but omits, except with the leave of the court, to sue for all such reliefs, he is debarred in view of the Order II Rule 2(3) CPC from suing afterwards for any relief so omitted.
18. A plea of bar under Order II Rule 2 CPC is maintainable only if the defendant makes out (i) that the cause of action of the second suit is the same on which the previous suit was based, (ii) that in respect of that cause of action, the plaintiff was entitled to more than one relief and (iii) that the plaintiff without leave obtained from the Court omitted to sue earlier for the relief for which the second suit is filed.(see "Gurbux Singh v. Bhooralal", AIR 1964 SC 1810). Clearly, Order II Rule 2 CPC enacts a rule barring a second suit in the situation indicated above. Identity of cause of action in the former and subsequent suits is essential before the bar contemplated under Order II Rule 2 CPC is set to operate. Thus, where the claim or reliefs in the second suit are based on a distinct cause of action, Order II Rule 2 CPC would have no application. Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. " (emphasis supplied)
52. We are also not impressed by the contention raised on behalf of the appellant herein that the amendment application is hit by the principle of constructive res judicata. The principle of constructive res judicata has no 19 application in the instant case, since there was no formal adjudication between the parties after full hearing. The litigation before this Court has come up at the stage when the courts below allowed the amendment of plaint for the purpose of enhancing the amount towards damages in the alternative to the main relief of specific performance of the contract."
31. In Para 70 of Snajeev Builders Private Limited (supra) the final conclusions were summed up. As per para 70(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied.
32. The view taken by the learned court that either the plaintiff has to give up the relief of specific performance of contract or the alternative relief of refund of the earnest money and he can go only for one relief, in the suit filed by him, is contrary to the provisions of Section 22 of Specific Relief Act, 1963 which permits claiming of both the reliefs in the same suit. The learned court did not notice Section 22 Specific Relief Act, 1963 and Order II Rule 2 CPC, in passing the order for return of plaint.
33. The III Additional District Judge, Kurnool, has the jurisdiction for both the reliefs. Once the 2nd relief, considering its value is within the pecuniary jurisdiction of the III Additional District Judge, it shall also have jurisdiction with respect to the first relief, though otherwise, the same might not be within its pecuniary jurisdiction. The relief of higher valuation would determine the court fee as also the jurisdiction of the court where the valuation of different relief (s) is different. This aspect 20 has been dealt with in the earlier part of this judgment by my learned brother. Therefore, the suit is to be registered by the III Additional District Judge, Kurnool for both the reliefs. Both the reliefs are within the pecuniary jurisdiction of the III Additional District Judge. RESULT:
34. The Civil Miscellaneous Appeal is allowed setting aside the order dated 20.03.2024 in C.F.R.No.106 of 2023 in an un-numbered O.S.No.___ of 2024, passed by the III Additional District Judge, Kurnool at Nandyal.
35. Let the Registry return the original plaint filed along with this appeal to the appellant‟s counsel duly keeping on record the copy thereof for filing before the court concerned. No order as to costs.
As a sequel, the miscellaneous petitions, if any, shall stand closed.
_____________________ RAVI NATH TILHARI,J _____________________ NYAPATHY VIJAY,J Date:24.09.2024.
Note:
Issue CC by tomorrow.
B/o.
Klp/Gk.21
HON'BLE SRI JUSTICE RAVI NATH TILHARI AND HON'BLE SRI JUSTICE NYAPATHY VIJAY C.M.A.No.454 OF 2024 Date:24.09.2024 Gk