A plaintiff can abandon a part of his claim under Order XXIII, rule 1(1), Civil Procedure Code, without amending the plaint or seeking the court's permission, and the court has jurisdiction to entertain the suit even after the Registrar's report, as long as the court has not given a finding that it has no jurisdiction.

Headnote:
COURT FEES ACT, 1870 - SECTION 6(V) - JURISDICTION - PECUNIARY JURISDICTION - ABANDONMENT OF PART OF CLAIM - COURT'S JURISDICTION TO RECORD STATEMENT OF ABANDONMENT - ORDER XXIII, RULE 1(1), CIVIL PROCEDURE CODE - COURT'S SEIZURE OF MATTER - COURT'S RIGHT TO DECIDE JURISDICTIONAL QUESTION - VOLUNTARY RELINQUISHMENT OF CLAIMS - ORDER II, RULE 2(2), CIVIL PROCEDURE CODE.
Fact of the Case:

Plaintiff, a licensee of a restaurant, filed a suit against defendants for recovery of possession of the restaurant and arrears of license fees. The suit was initially valued at Rs. 6,500, but during the trial, the defendants raised a jurisdictional issue, claiming that the value of the subject matter exceeded Rs. 25,000, which was beyond the pecuniary jurisdiction of the City Civil Court. The court appointed a Registrar to determine the value of the premises, who reported that the total value was Rs. 30,336.75. The plaintiff sought to amend the plaint to abandon a part of the claim and bring it within the jurisdiction of the court, but the amendment was not allowed.
Finding of the Court:

The court held that the plaintiff could have abandoned a part of her claim under Order XXIII, rule 1(1), Civil Procedure Code, without amending the plaint or seeking the court's permission. The court found that the Registrar's valuation included items not claimed in the plaint, and after excluding those items, the value of the claim would be Rs. 24,836.75, which would fall within the jurisdiction of the City Civil Court. The court also held that the plaintiff could have made a statement to the court abandoning a part of the claim, which the court should have recorded and proceeded to try the suit with regard to the remaining part of the claim.
Issues: 1. Whether the plaintiff could abandon a part of her claim without amending the plaint or seeking the court's permission. 2. Whether the court had jurisdiction to entertain the suit after the Registrar's report, even if the plaintiff abandoned a part of the claim.
Ratio Decidendi: 1. Order XXIII, rule 1(1), Civil Procedure Code allows a plaintiff to abandon a part of his claim at any time after the institution of a suit. This does not require any amendment of the plaint or permission of the court. The plaintiff can do so voluntarily by a unilateral act of herself by making a statement to the court, which the court must record and proceed to try the suit with regard to the remaining part of the claim. 2. As long as the court has not given a finding that it has no jurisdiction and that the plaint should be returned for presentation to the proper court, it is seized of the matter and has the right to decide the question of its own jurisdiction. Therefore, the court had jurisdiction to entertain the suit even after the Registrar's report, and the plaintiff could have abandoned a part of the claim to bring it within the jurisdiction of the court.
Final Decision: The court set aside the trial court's order returning the plaint and remanded the suit to the City Civil Court for further proceedings. The court directed that the matter be placed before a different judge, who would proceed with the suit from the stage at which his predecessor left it.

JUDGMENT-This is an appeal against an order dated August 19, 1965, passed by a Judge of the Bombay City Civil Court, holding that the value of the subject-matter of the suit was over Re. 25,000 and the Court therefore had no pecuniary jurisdiction to try the suit and ordering that the plaint be returned to the plaintiff for presentation to the proper Court.

2. The plaintiff claims to be a license of a restaurant known as Meenakshi Bhuvan and lately known as Central Cafe Udipi, situated in Vishwas Bhuvan, King Edward Road, Parel, Bombay. She appears to have granted a sub-licence in respect of this restaurant to defendant No.1 who was running it with the assistance of defendant No.2. The plaintiff claims to have terminated the license of defendant No. I on the ground that he had committed breach of the terms of the sub-licence. She, therefore, filed the present suit against defendants Nos. 1 and 2 only for recovery of possession of the said restaurant and a sum of Rs. 3,500 as arrears of license fees and future mesne profits. She filed the suit on March 3, 1959. In the suit she took out a notice of motion and got an interim order for appointment of receiver. When the receiver went to take possession, he found that defendants Nos. 3 and 4 were in possession. The plaintiff thereafter joined them as party defendants to the suit. Defendant No.3 is the plaintiffs licensor. Defendant No.4 is a fresh licensee from defendant No.3. It appears that in order to spite the plaintiff, defendant No.1 had handed over possession of the suit premises to the plaintiffs licensor who in turn had put a new licensee in possession.

3. The defendants filed their written statement. No defence as to jurisdiction was taken. Issues were settled in July 1963. It appears from the issues that no issue was raised as to jurisdiction. The suit proceeded to trial. Both parties led evidence and the matter was being argued. At the stage of arguments it appears the defendants relied upon a statement in the evidence by the constituted attorney of the plaintiff indicating that the market value of the property of which possession was sought to be recovered in the suit was over Rs. 2;3,000. The defendants, therefore, at that stage raised the point of jurisdiction. The learned Judge appointed the Registrar of the Court to hold an inquiry and make a report as to the value of the premises possession whereof was sought to be recovered evidently with a view ultimately to determine the value himself under the provisions of section 12 of the Court-fees Act, 1870, which was in force at the date of institution of the suit. The learned Registrar made a report in which he held that the total value of the premises, possession whereof was claimed in prayer (a) of the plaint, was Rs. 30,336.75, namely, Rs. 13,850 being the value of the premises and Rs. 16,486.75, being the value of the movable property sought to be recovered. The plaintiff filed objection to this report. The learned Judge heard the objections. Probably finding that the learned Judge was inclined to accept the valuation made by the Registrar, the plaintiff presented a draft amendment and sought leave to amend the plaint. This draft amendment is at page 103 of the paper-book. By this draft amendment the plaintiff sought to abandon a part of the claim so as to bring the suit within the jurisdiction of the Court. The learned Judge, however, did not grant this amendment and ultimately passed the order, which is the subject. matter of this appeal.

4. The first point argued before me by Mr. Varghese on behalf of the plaintiff is that in prayer (a) of the plaint the plaintiff seeks to recover possession of the restaurant with all its fittings, furniture and fixtures and things and articles mentioned in Exh. C to the laint. Exhibit C consists of two lists, one comprising 71 items and the other comprising 44 items. The learned Registrar of the City Civil Court has valued all the movable articles at Rs. 16,486.75. This consists

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1968 Supreme(Bom) 74

IN THE HIGH COURT OF BOMBAY( J. L. Nain J. ) SMT. SHOBHA VENKAT RAO - Appellant.V. K. R. MAHALE and others - Respondents. Advocated appearedFor appellant-K. 1. Varghese. For respondent No. 3-M. L. Dudhat for R. W. Adik.

IN THE HIGH COURT OF BOMBAY
( J. L. Nain J. )
SMT. SHOBHA VENKAT RAO - Appellant.
V.
K. R. MAHALE and others - Respondents.
Advocated appeared
For appellant-K. 1. Varghese.
For respondent No. 3-M. L. Dudhat for R. W. Adik.