Chattisgarh High Court
Pawan Kumar Agrawal vs Tribhuvanshwar Sharan Singhdev on 29 August, 2024
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2024:CGHC:33109
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 173 of 2024
Pawan Kumar Agrawal S/o Rambhagat Agrawal Aged About 35 Years R/o Gehu Bari,
District Hspital Road, Po-Ambikapur, Ps Kotwali Ambikapur, District : Surguja
(Ambikapur), Chhattisgarh ... Petitioner
versus
1 - Tribhuvanshwar Sharan Singhdev S/o Late Madneshwar Saran Singhdev Tapasya,
Kharsiya Road, Po Ambikapur Ps Kotwali Ambikapur, District : Surguja (Ambikapur),
Chhattisgarh
2 - Sashibhan Singh (Wrongly Mentioned As Shashibhushan In Annexure P/1) Near K D
Hospital, Bihibari, Jail Road Ambikapur Po Ambikapur Ps Kotwali Ambikapur
3 - Aruneshwar Sharan Singhdev, S/o Late Madneshwar Saran Singhdev, R/o Kothi Ghar,
District Hospital Road, Ambikapur, Po- Ambikapur, Ps Kotwali, Ambikapur
4 - Adityeshwar Sharan Singhdev, S/o Aruneshwar Sharan Singhev, R/o Kothi Ghar, District
Hospital Road, Ambikapur, Po Ambikapur Ps Kotwali, Ambikapur
5 - Thakur Bari Mandir Through Its Manager Near Agrasen Chowk, Oldest Bus Stand Near
Khothi Ghar Po Ambikapur
... Respondents
For Petitioner : Mr. Abhijit Anand, Advocate through V.C.
For Respondent No.1 : Mr. Anurag Singh, Advocate.
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SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J.
Order On Board 29.08.2024
1. This petition has been filed by the petitioner/plaintiff for the following reliefs:-
"(i) Issue any appropriate writ/order/direction for setting aside the impugned order dated 03.08.2023 passed by the Court Learned District Judge, Surguja, Ambikapur (CG) bearing MCC No.77/2023 which has been filed for transfer of the Civil Suit No.A-90/2021 from the Court of Learned Civil Judge, Class-II, Surguja, Ambikapur (CG) to competent Court having pecuniary jurisdiction of Rs.90,00,000/- under the jurisdiction of District Court, Surguja, Ambikapur (CG);
(ii) Pass any other order(s) which this Court deems fit and proper in the interest of justice."
2. Facts of the case, in brief are that the petitioner/plaintiff had filed a Civil Suit No.A-90/2014 before the Second Civil Judge (Junior Division) Amibkapur, Surguja (CG) for declaration which was valued at Rs.200/- and permanent injunction valued at Rs.130/- in respect of the suit property and for the same, Court Fee of Rs.500/- was paid. In the said suit, the petitioner has filed an application for amendment under Order VI Rule 17 r/w Section 151 of the Civil Procedure Code (CPC) for amendment of plaint on 03.07.2023. In the said application, several amendments have been proposed including amendment of valuation of jurisdiction for Rs.90,00,000/-. During the pendency of such application, the petitioner has moved another application under Section 24 r/w Section 151 of the CPC bearing MCC 3/7 No.77/2023 before the learned District Judge, Surguja, Ambikapur for transfer of the said civil suit from the Court of Learned Civil Judge, Class- II, Surguja, Ambikapur (CG) to competent Court having pecuniary jurisdiction of Rs.90,00,000/- under the jurisdiction of District Court, Surguja, Ambikapur (CG). Learned District Judge, after considering the said application, dismissed the same on the ground that transfer of suit cannot be sought only on the basis of amendment application which is still pending consideration before the trial Court. Hence this petition.
3. Learned counsel for the petitioner submits that the impugned order is bad in law as the trial Court has no jurisdiction to transfer the suit of its own to and such power only lies with the District Judge. However, the District Judge has not exercised its jurisdiction in accordance with law and committed jurisdictional error. He also submits that the trial Court has no jurisdiction to allow the amendment application. In support of his contention, he refers to the judgment passed by the High Court Of Delhi At New Delhi in the matter of Subhashini Malik vs. S.K. Gandhi & ors registered as CS (OS) NO. 1416/2009 [2016:DHC:6317-DB] passed on 06.09.2016, wherein a question came up for consideration before the Full Bench due to conflicting views expressed in Mahesh Gupta Vs. Ranjit Singh [AIR 2010 Delhi 4 (DB)] and Kamal Sharma Vs. Blue Infrastructure Development Pvt. Ltd. [2016 SCC Online Delhi 2261] and the following question was considered :-
"....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 4/7 whether a court which does not have 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."
The Full Bench has answered the aforesaid reference as under:
"The judgment in Mahesh Gupta supra to the extent holding that this Court, upon enhancement of its minimum pecuniary jurisdiction, ceases to have jurisdiction to entertain an application in a suit, which on the date of its institution was properly instituted, for enhancement of valuation for the purposes of jurisdiction, does not lay down the correct law and hold that this Court inspite of Amendment Act and the Office Order dated 24th November, 2015 supra can entertain an application to amend the plaint to bring the suit within the pecuniary jurisdiction of this Court."
In view of the said submission, learned counsel prays to set-aside the impugned order dated 03.08.2023
4. On the other hand, learned counsel for the respondent supports the impugned order and would submit that initially the suit has been filed before the competent jurisdiction and amendment application is still pending consideration. He would submit that even after result of amendment, if the suit becomes not cognizable by the trial Court, it has power to return the plaint under Order 7 Rule 10 (2) or Order 7 Rule 10A of the CPC. Therefore, this petition is misconceived and liable to be dismissed.
5. Heard learned counsel for the parties and perused the documents placed on record.
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6. In the matter of In Re Vivekananda and Ors Vs. Smt. Ashima Goswam reported in AIR 1997 Calcutta 340, the High Court of Calcutta has referred the case of Mohd. Jeeves Ali vs. Rohima Bibi, 1983 (2) Cal HN 7, wherein three broad lines of judicial views have been framed with regard to the issue of power of court to consider an amendment of plaint which would take the suit out of its jurisdiction and about the procedure to be followed. The relevant portion of the aforesaid judgment reads thus:-
"4.......In this connection another Division Bench decision of this Court in the case of Mohd. Jeeves Ali v. Rohima Bibi, 1983(2) Cal HN 7, must be noticed on which the learned counsel for the parties also strongly relied. This Division Bench decision of this Court found that the courts in India were not unanimous in their views as regards the power of court to allow an amendment of the plaint which would take the suit out of its jurisdiction and about the procedure to be followed. In paragraph 17 of the said Division Bench decision, Chittotosh Mukherjee, J. (as his Lordship then was) framed three broad lines of judicial views on the aforesaid questions. For appreciation of the question in hand I feel it necessary to quote the judicial views as framed by Chittotosh Mukherjee, J. in paragraph 7 of the said decision which are as follows:
"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 its own jurisdiction to try the suit vide the decision of Venkatasubba Rao, J. in C.Singara v. M.Gobinda Swami AIR 1928 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 Ranchoddas v.6/7
Narottam Ranchoddas, AIR 1953 Nagpur 273; Edupuganti Rao Memorial High School Committee v. Poturs Atharyya AIR 1957 AP 10.
3. When the claim as originally made is within the courts' 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 Vhavana v. Mangamma AIR 1949 Mad 208; Govardhan Bang v. Govt. of the Union of India AIR 1953 Hyderabad 212; Kundan Mal v. Thikaha Siyari, ; T.K. Sreedhan v. P.S. Job, AIR 1969 Ker 75."
5. In paragraph 18 Chittotosh Mukherjee, J. (as His Lordship then was) on consideration of the relevant decisions held as follows:
"In our opinion the third view set out hereinabove ought to be followed, O.6, R.17 of the Code has not expressly deprived the court of its power to allow amendment 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. 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 after court's jurisdiction to further try the suit.""
7. It is an admitted position that the application for amendment filed by the petitioner is still under consideration before the trial Court and during such pendency the petitioner has moved another application for transfer of the suit raising the issue of jurisdiction. However, the fact still remains that the said amendment application is allowable or not is yet to considered by the 7/7 trial Court. Further, even if such amendment application is allowed, the concerned trial Court shall still have jurisdiction to return the plaint under Order 7 Rule 10 (2) or Order 7 Rule 10A of the CPC.
8. Considering the aforesaid facts and law laid down herein-above, this Court reaches the conclusion that the District Judge has not committed any jurisdictional error while rejecting the application for transfer of the suit under Order 24 r/w 151 of the CPC and observation made in the order impugned is well reasoned which does not call for any interference by this Court.
9. Accordingly, the petition fails and is hereby dismissed.
10. However, this Court hopes and trust that the concerned trial Court shall proceed in the matter expeditiously.
C.C. as per rules.
Sd/-
Digitally signed by (Deepak Kumar Tiwari) Judge AJAY KUMAR DWIVEDI AJAY Ajay KUMAR DWIVEDI