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High Court Of Calcutta
TARUN CHATTERJEE
VIVEKANANDA NIDHI - Appellant
Versus
ASHIMA GOSWAMI - Respondent
Of
Decided On : 02/07/1997
CIVIL PROCEDURE - Amendment of Plaint - Jurisdiction - Transfer of Suit - Section 24 of the Code of Civil Procedure.
Fact of the Case:
The plaintiff filed a suit for declaration and permanent injunction before the Munsif Court. The defendants filed a written statement and an additional written statement, pleading that the Munsif Court lacked jurisdiction as the valuation of the suit property exceeded its pecuniary jurisdiction. The plaintiff then filed an application to amend the plaint to incorporate a relief for recovery of possession, which was allowed by the Munsif Court. Consequently, the jurisdiction of the Munsif Court was ousted due to the enhancement of the valuation of the suit. The plaintiff filed an application under Section 24 of the Code of Civil Procedure before the District Judge, who transferred the suit to the Court of the Assistant District Judge for disposal.
Finding of the Court:
1. The Munsif Court had the jurisdiction to entertain the suit as it was filed for declaration and injunction, which was valued at Rs. 100/- only. 2. After the amendment of the plaint, the Munsif Court automatically lost its jurisdiction to try the suit, and the court having jurisdiction to try the suit would have the jurisdiction to pass necessary orders in the suit. 3. The Munsif Court did not act illegally or with material irregularity in allowing the application for amendment of the plaint, as it still had the ample jurisdiction to direct return of the plaint under Order 7, Rule 11 of the Code of Civil Procedure or according to the principles embodied in the said rule. 4. The District Judge had the jurisdiction to transfer the suit from the Munsif Court to the Court of the Assistant District Judge in the exercise of his power under Section 24 of the Code of Civil Procedure, as the suit was pending in a court not having the jurisdiction to entertain the same.
Issues: 1. Whether a civil court can allow the plaint to be amended to result in ousting its own jurisdiction in the matter under Order 6 Rule 17 of the Code of Civil Procedure. 2. Whether the District Judge can transfer a suit filed in the Munsif Court to the Court of Assistant District Judge in which the valuation of suit is made beyond Rs. 30,000.00 under Section 24 of the Code of Civil Procedure.
Ratio Decidendi: 1. The court has a large measure of discretion in the matter of allowing amendments, and such power is liberally exercised. 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 for consideration by the court having jurisdiction to entertain the claim which is proposed to be made by amendment of the plaint. 3. The court ought to consider the application for amendment of the pleadings even when the proposed amendment might affect the court's jurisdiction to further try the suit. 4. The court may decide the jurisdictional question as a preliminary one after the amendment of the plaint is granted. 5. The District Judge is now conferred with the power to transfer the suit pending in a court not having the jurisdiction to entertain the same to a court of competent jurisdiction for its disposal under Section 24 (5) of the Code of Civil Procedure.
Final Decision: Both the applications filed by the petitioners are rejected.
( 1 ) THE opposite party Smt. Ashima Goswami as a plaintiff instituted a suit against the petitioners for declaration and for permanent injunction. This suit was filed in the 2nd Court of the Munsif, at Alipore, 24 parganas (south) which was registered as title suit No. 359 of 1991. The petitioners entered appearance in the suit and here contesting the same by filing their written statement and additional written statement wherein one of the pleas was that the Munsif, 2nd Court at Alipore had no jurisdiction to try the suit on the ground that the valuation of the suit property exceeded the pecuniary jurisdiction of the Munsif, 2nd Court at Alipore. It appears from record that on 26th October, 1995 the petitioners filed an application under Order 7, Rule 11 read with Section 151 of the Code of Civil Procedure praying for necessary order necessary order for rejection of the plaint in limine for its inherent defects. The said application under Order 7, Rule 11 of the Code of Civil Procedure was disposed of by the Munsif, 2nd Court at Alipore, district 24 Parganas. (South) by giving liberty to the opposite party to take steps for amendment of the plaint if the she felt it necessary so to do. In the aforesaid background the opposite part on or about 14th of November, 1995 filed an application under Order 6, Rule 17 of the Code of Civil procedure by which the opposite party sought to amend the plaint inter alia for incorporation of the relief for recovery of possession in the suit. The application for amendment was allowed by the learned Munsif, second Court at Alipore and consequent thereof a direction was made on the opposite party to take steps in the suit as by such amendment of the plaint the jurisdiction of the Munsif Court stood ousted because of enhancement of valuation of the suit. At this stage, the opposite party filed an application under Section 24 of the Code of Civil Procedure before the District Judge, 24 Parganas (South) and by an order dated 14th of December, 1995 the learned District Judge by invoking the power conferred on him under Section 24 of the Code of Civil Procedure transferred the suit from the second Court of the Munsif at Alipore to the Court of the Assistant District Judge, 10th Court of Alipore for disposal. The application under Article 227 of the Constitution has been moved against the order of the Dist. Judge transferring the suit from the Court of the Munsif to the Court of the Assistant Dist. Judge. The other revisional application which was also taken up for hearing along with the application under Article 227 of the Constitution has been moved against the order allowing the application for amendment of the plaint. From the order allowing the application for amendment of the plaint it appears that the defendant did not file any objection to the application for amendment of the plaint nor she raised any objection against the same at the time of hearing of the application. From this order of the learned Munsif it also appears that the learned Munsif has proceeded on the basis that after allowing the application for amendment of the plaint his jurisdiction to try the suit would be ousted and therefore, no further order in the matter after allowing the application for amendment would be possible for him to pass. The questions that now arise for my consideration are as follows :-1) Can a civil court under O. 6 R. 17 of the Code of Civil Procedure allow the plaint to be so amended to result in ousting its own jurisdiction in the matter. 2) Whether the District Judge in the exercise of his power under S. 24 of the Code of Civil Procedure can transfer a suit filed in the Munsif 2 Court to the Court of Assistant District Judge in which the valuation of suit is made beyond Rs. 30,000. 00.
( 2 ) LET us take up the first question for decision first Mr. Dasgupta, appearing on behalf of the defendant/petitioners did not dispute that the application for amendment of the plaint could not
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