A plaintiff may abandon a part of the claim at any time after the institution of a suit, as long as the court has not given a finding that it had no jurisdiction and the plaint should be returned for presentation to the proper court.

V.B. Gupta, J.

Petitioner has filed the present petition under Article 227 read with 226 of the Constitution of India, against order dated 29.3.2010 passed by the Additional District judge, Delhi vide which application of respondent under Order 23 Rule 1 of Civil Procedure Code (for short as 'Code') seeking permission to withdraw/abandon a part of the claim, was allowed.

2. Brief facts are that, respondent filed suit for Specific Performance of Contract and Permanent Injunction against present petitioner, making following prayer :-

"(a) Pass a decree of specific performance of the agreement to sell dated 08.09.2009 in favour of the plaintiff and against the defendant, whereby directing the defendant to obtain the possession on spot from the DDA and get the conveyance deed executed in her favour and thereafter execute and get registered the sale deed/title documents in respect of the same in favour of the plaintiff and handover the actual physical possession of her share in the suit plot i.e. Plot no. 49, Block-B, measuring 64 sq. mtrs., situated at Rangpuri/Vasant Kunj, New Delhi, as the plaintiff has already paid the entire sale consideration to the defendant;

(b) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant, whereby restraining defendant her attorney/s, servant/s, representative/s, LR/s, family members etc. from selling, alienating, transferring, parting with possession and/or creating any kind of third party interest in any manner in favour of any third person in respect of her share in the suit plot i.e. Plot no. 49, Block-B, Rangpuri/Vasant Kunj, New Delhi;

(c) Alternatively, if this Hon'ble Court due to any reason comes to the conclusion that the plaintiff is not entitled for the decree of specific performance as prayed the plaintiff pray for an alternative prayer that this Hon'ble Court may be pleased to pass a decree for recovery of Rs. 12,80,000/- paid as full and final payment to the defendant along with interest @ 18% per annum till the payment is made and pass a decree for recovery of damages in favour of the plaintiff and against the defendant to the tune of Rs. 12,50,000/- whereby directing the defendant to pay a sum of Rs. 12,50,000/- along with interest @ 18% per annum till the payment is made to the plaintiff for the breach committed by the defendant and the loss and damages suffered by the plaintiff."

3. Respondent valued its suit for purposes of jurisdiction and court fees as under :-

(i) for relief of specific performance and possession at Rs. 12,80,000/-;

(ii) for permanent injunction at Rs. 130/-;

(iii) for damages at Rs. 12,50,000/- upon the adveloram court fees as already affixed as the same is covered under the sub clause (i).

4. Petitioner contested the suit amongst others, on the ground that Court has no pecuniary jurisdiction to try the suit as the title value affixed by respondent to the suit for purposes of jurisdiction comes to Rs. 25,30,130/-, which is beyond its jurisdiction.

5. Trial court framed a preliminary issue in this regard that is;

"(i) whether this Court does not have the pecuniary jurisdiction to try the suit'"

6. When the matter was listed before trial court for arguments on this preliminary issue, respondent moved application under Order 23 Rule 1 of the Code, seeking permission to abandon the relief of damages of Rs. 12,50,000/- from the prayer clause (c).

7. Trial court, vide impugned order, permitted the respondent to withdraw/abandon the part of its claim.

8. It is contended by learned counsel for the petitioner that the Court which does not have pecuniary jurisdiction cannot acquire jurisdiction by the reason of plaintiff (respondent herein) relinquishing a portion of the claim at the later stage, in view of specific bar contained in Section 6 and Order 7 Rule 10 of the Code. The valuation at the time of institution of the suit is the only material fact and the Court having no jurisdiction is duty bound to return the plaint.

9. It is als