ABDUL FAYAZ Vs. BABAIAH

JUDGEMENT

(1.) This Civil Revision Petition is directed against the docket order dated 12.6.2006 passed in O.S.No.43 of 1999 by which the learned Junior Civil Judge, Banswada, while recalling the order passed in I.A.No.97 of 2005, dated 21.2.2006, directed to return the amended plaint to the plaintiffs i.e. the petitioners herein.

(2.) The brief facts of the case are that the petitioners they are the absolute owners of the land in Plot No.51 situated in Pitlam village and as there was threat of dispossession by the respondents herein, they approached the Court below and filed O.S.No.43 of 1999 for perpetual injunction along with an application in I.A.No.139 of 1999 seeking temporary injunction. After hearing both sides, the learned Junior Civil Judge, Banswada, dismissed the application on 29.12.1999. Thereafter, it appears that the petitioners filed I.A,No.26 of 2000 seeking amendment of the plaint, but it was dismissed as not pressed. While the matter stood thus, again, the petitioners came forward and filed I.A.No.97 of 2005 under Order VI Rule 17 read with Section 151 C.P.C. requesting the Court to permit them to amend the plaint. The amendment sought for is from an injunction simplicitor to declaration of their title and for mandatory injunction. The Court below, by a detailed order dated 21.2.2006, allowed the application and directed the petitioners to amend the plaint and permitted the respondents to file additional written statement if necessary. Thereafter, the petitioners, after ascertaining the value of the suit from the local builders assessed its value at Rs.83,496/- and a Court fee of Rs.1,906/- was paid under Sectiorr 24(d) of A.P. Court Foes and Suits Valuation Act, 1956 (for brevity "the Act"). Howovor, the Court below, being not satisfied with the valuation, directed the petitioners to obtain a valuation certificate from the competent authority and adjourned the suit. In spite of the fact that sufficient time was granted to the petitioners, they could not produce th e certificate. Honco, the Court below passed the impugned order recalling the orders passed in I.A..No.97 of 2005 dated 21.2.2006 and directing to return the amended plaint to the plaintiffs. Heard the learned counsel for both the parties.

(3.) The learned counsel for the petitioners has drawn my attention to Sections 17 and 18 of the Act and contended that it is always open for the Court to appoint an Advocate Commissioner. If it is not satisfied with the value arrived at by the plaintiffs, instead of rejecting the amended plaint, the Court below ought to have appointed an Advocate Commissioner, which probably would have met the ends of justice. Per contra, the learned counsel for the respondents has opposed the said contention stating that it is an old suit of the year 1999 and for some reason or the other, the petitioners are dragging on the matter. It is his further submission that on an earlier occasion, an application in I.A.No.26 of 2000 for amendmenJ of the plaint, was filed, but it was dismissed as withdrawn, and hence; I.A.No.97 of 2005, which was filed for the very same relief, ought not to have been entertained by the Court below. The learned counsel has further contended that instead of resorting to this method, the petitioners have a right to institute a separate suit for declaration of their title and mandatory injunction. No doubt, it is an old suit: of the year 1999 and prima facie it appears that the petitioners are trying to protract the litigation. It is true that I.A.No.26 of 2000 filed for the very same relief was withdrawn. But, it must be remembered that the orders passed in I.A.No.97 of 2005 dated 21.6.2000 permitting the petitioners to amend the plaint was not questioned by the respondents. So long as the order in I.A.No.97 of 2005 is in force, the respondents cannot be permitted to contend that I.A.No.26 of 2000 was dismissed as withdrawn. Of course, it may be a fact, which can definitely be taken into consideration, but on that score, I am not inclined to dismiss this revision. No doubt, the petitioners, instead of seeking amendment of the plaint can idefinitely invoke the jurisdiction of the Court below and file a separate suil for the very same relief, but again that will be leading to further complications. Further, from a perusal of Section 17, it clear that if the Court is not satisfied with the valuation of the suit, it has the power to appoint an advocate commissioner to ascertain the exact value of the suit.