Delhi High Court
Subhanshini Malik vs S K Gandhi & Ors. on 27 April, 2016
Author: Valmiki J. Mehta
Bench: Valmiki J. Mehta
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1416/2009
SUBHANSHINI MALIK ..... Plaintiff
Through; Mr.Vinayak Mehrotra, Adv.
versus
S K GANDHI & ORS. ..... Defendants
Through: Mr.Shobit Phutela, Adv for proposed
defendant nos.3,4 and 5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
ORDER
% 27.04.2016
1. This is a suit for declaration, permanent injunction, possession etc filed by the plaintiff. Because of passing of the Delhi High Court Amendment Act, 2015 enhancing the pecuniary jurisdiction of this Court in matters to amounts above Rs.2 crores this Court hence did not have the pecuniary jurisdiction to try this suit in view of paragraph 41 of the plaint which pertains to payment of court fees and pecuniary jurisdiction and which para reads as under:-
"41. The value of the suit for the purposes of court fee and jurisdiction is as under:-
(a) For the relief of declaration of the plaintiff's rights, title and interest in the garage on the right side driveway of the Ground Floor Portion of the said Property, the suit is valued at Rs.20,00,000/- and ad valorem court fee of Rs. 21,864- has been paid.
CS(OS) 1416/2009 1 of 7
(b) For the relief of mandatory injunction
directing the defendants no. 1 to 3 to remove their lock from the garage on the right side driveway on the Ground Floor Portion of the said property, the suit is valued at Rs.200/- and ad valorem court fee of Rs. 20/- has been paid.
(c) For the relief of permanent injunction restraining the defendants no.1 to 3 from interfering in any manner whatsoever with the plaintiff's rights of unobstructed and unhindered enjoyment of the garage on the right side driveway of the Ground Floor Portion, the suit is value at Rs.130/- and ad valorem court fee of Rs. 13/- has been paid.
(d) For the relief of declaration declaring the plaintiff to be entitled to the area on the terrace above the second floor in the said Property that has been encroached upon by the Defendants and that is required to make up the area of the Plaintiff on the said terrace to be half of the total terrace, without taking into account any extra area made available upon coverage of the balcony on the rear side of the second floor on the said Property, and for possession of plaintiff's share in the said terrace as may be found to be in possession of the Defendants, or either of them, the suit is valued at Rs.8,15,000/-, being the market value of the area of 163 sq. ft. approx.
encroached upon by the Defendants and ad valorem court fee of Rs.10,300/- has been paid. The plaintiff undertakes to pay deficit, if any, in the court fee upon the actual measurements of the said terrace and determination of the area encroached upon by the Defendants.
(e) For the relief of mandatory injunction directing the Defendants no.1 to 3 to demolish the unauthorized construction carried out in covering the rear balcony on the second floor of the said property, the suit is valued at Rs.200/- and ad valorem court fee of Rs.20/- has been paid.
(f) For mesne profits of Rs.4,80,000/- (Rupees four lacs eighty thousand only), the suit is valued at CS(OS) 1416/2009 2 of 7 Rs.4,80,000/- and ad valorem court fee of Rs.7,030/- has been paid.
(g) For recovery of damages of Rs.15,00,000/- (Rs. Fifteen lacs only), the suit is valued at Rs.15,00,000/- and ad valorem court fee of Rs.16,984/- has been paid.
Thus, the total valuation of the suit for the purposes of jurisdiction is Rs.47,95,530- and court fee of Rs.56,231/- has been paid."
2. The Division Bench of this Court in the case of Mahesh Gupta Vs. Ranjit Singh & Ors. AIR 2010 Delhi 4; 159 (2009) DLT 624 held that once the court does not have pecuniary jurisdiction to try the matter then it cannot entertain an application and pass the orders allowing an application for amendment of a plaint to bring the suit plaint within the pecuniary jurisdiction of this Court. Para 7 of the judgment of the Division Bench in the case of Mahesh Gupta (supra) reads as under:
"7. The issue therefore is, can this application for amendment be allowed. It is trite that the court which does not have jurisdiction to try the matter would have no jurisdiction to pass any orders which affect the rights of the parties. The orders which are passed by a court which has no jurisdiction to determine the matter, are without jurisdiction and, therefore, of no effect and purport. The Court therefore which does not have pecuniary jurisdiction cannot pass any orders allowing an application CS(OS) 1416/2009 3 of 7 seeking amendment of a plaint to bring the suit plaint within the pecuniary jurisdiction of a Court."
(underlining added)
3. In my opinion, the last line of para 7 of the judgment of the Division Bench in the case of Mahesh Gupta (supra) is clear that once the court does not have pecuniary jurisdiction to pass any order then no order can be passed for allowing an application which seeks amendment of the plaint to bring the suit plaint within the pecuniary jurisdiction of a court. This judgment is binding on this Court.
4. Counsel for the plaintiff to argue to the contrary has placed reliance upon the recent judgment of a learned Single Judge of this Court in the case of Kamal Sharma & Ors. Vs. Blue Coast Infrastructure Development Pvt. Ltd. and Ors. in CS(OS) No.176/2015 decided on 01.04.2016 wherein the learned Single Judge had allowed the application for amendment of the plaint filed after passing of the Delhi High Court Amendment Act, 2015. The learned Single Judge in Kamal Sharma's case (supra) has referred to the ratio as drawn in Mahesh Gupta's case (supra) but the learned Single Judge has not emphasised upon the last line of para 7 which CS(OS) 1416/2009 4 of 7 specifically states that the court which does not have the pecuniary jurisdiction cannot pass an order allowing an application seeking amendment of the plaint to bring the suit plaint within the pecuniary jurisdiction of the court.
5. Though, the ratio of the judgment of the Division Bench of this Court is binding on all subsequent Division Benches as also on Single Benches of this Court, and therefore, the judgment in Kamal Sharma's case (supra) in my respectful opinion clearly is at direct variance with the ratio of the judgment in Mahesh Gupta's case (supra); especially the last line of para 7 of the judgment in Mahesh Gupta's case (supra); since however, the learned Single Judge seems to have taken a different view than the Division Bench of this Court, but by referring to the Division Bench judgment in the case of Mahesh Gupta (supra), it would be apposite that the issue itself be referred for decision to the larger Bench of this Court as to whether it is the ratio of the judgment in Kamal Sharma's case (supra) which will apply that a court can allow the application for an amendment of a suit plaint to bring the suit plaint within the pecuniary jurisdiction CS(OS) 1416/2009 5 of 7 although when the application for amendment is filed the court does not have the pecuniary jurisdiction to try the application for amendment. No doubt procedures are handmaid of justice and may be the reasoning of the judgment in Kamal Sharma's case (supra) is persuasive, however, a Single Judge is bound by the ratio laid down by the Division Bench of this Court which is squarely and directly on the point in issue viz the lack of jurisdiction of the court to entertain and allow an amendment application to enhance the pecuniary jurisdiction when the court otherwise does not have pecuniary jurisdiction to entertain the suit and hence the application for amendment of the plaint to increase the pecuniary jurisdiction.
6. Accordingly, let the present file be placed before Hon'ble the Chief Justice for constituting a larger Bench as regards whether the judgment in Mahesh Gupta's case (supra) has rightly been interpreted and applied to the ratio of the judgment in Kamal Sharma's case (supra) especially the last line of para 7 of Mahesh Gupta's case (supra). In my respectful opinion, the larger Bench may also decide the issue as to whether a court which does not have CS(OS) 1416/2009 6 of 7 pecuniary jurisdiction to entertain the suit, such court can entertain an application to amend the plaint to bring the suit plaint within the pecuniary jurisdiction of the court.
7. After obtaining the appropriate orders of Hon'ble the Chief Justice, list the matter before the larger Bench for consideration of the issue in question on 26th May, 2016.
8. I note that on the decision by the larger bench as to whether this Court cannot or can entertain and allow the IA No.3857/2016 filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 for enhancement of pecuniary jurisdiction, the application of the defendant no.2 in IA No.3856/2016 would also stand decided and which is for transfer of the suit to the transferee court having pecuniary jurisdiction.
VALMIKI J. MEHTA, J
APRIL 27, 2016/neelam
CS(OS) 1416/2009 7 of 7