JOYDEEP MAJUMDER Vs. SHANTI KUMAR SURANA

JUDGEMENT

(1.) This appeal is preferred against a judgment and order holding that the part of the relief relates to land outside the original side jurisdiction of this Court and granting liberty to the plaintiff to amend the plaint on the basis of the plaintiffs assertion for abandoning the part of the claim. The plaintiff has filed the cross-objection to the appeal filed by the defendant challenging the part of the order relating to absence of jurisdiction passed by the learned Single Judge. Mr. Surajit Mitra, learned Counsel for the appellant, contended that once it is held by the Court that the suit is a suit for land outside the original jurisdiction, the Court has no power to allow amendment of the plaint. He relied on the decision in Johra Khatoon vs. Janab Mohammad Jane Alam & Ors., AIR 1978 Cal 1978, to support his contention. He also placed reliance on the decision in Manthan Brand Band Services Pvt. Ltd. & Anr. vs. C.K.T. Communications Pvt Ltd., 2005(2) CHN 648, and also on the decision in City scape Developers Pvt. Ltd. vs. Alka Builders Pvt. Ltd., 2000(1) CLT 346. On the other hand, Mr. Abhrajit Mitra submitted that the relief claimed being alternative, it is open to the plaintiff to relinquish the part of the claim in case it is found that the claims are separable and the part of the suit can be entertained by this Court on account of its being within the jurisdiction. He distinguished the decision in Johra Khatoon (supra) and pointed out that the said decision also permits retention of a part in appropriate cases. Mr. Abhrajit Mitra relied upon the decision in Sheela Adhikari vs. Rabindra Nath Adhikari & Ors., 92 CWN 248, where it was held that if the part of the claim is within the jurisdiction, in that event, the Court has every jurisdiction to retain the part within the jurisdiction and decide the same and allow amendment of the plaint so as to enable the Court to deal with the same if it does not lack jurisdiction inherently. Abhrajit Mitra also relied on the decision in Adcon Electronics Pvt. Ltd. vs. Daulat & Anr., 2001(7) SCC 698, to support his contention. Immovable property outside Original Side jurisdiction: Segregation of relief: Abandonment of that part: Amendment: Whether permissible :

(2.) The law is well-settled and needs no elaboration. If the suit relates to possession of any land or determination of any interest or title in the property situated outside the Original Side jurisdiction, then this Court lacks jurisdiction to decide the same. But in case it is simply a suit for execution of a conveyance by way of specific performance without involving any determination of title or interest or question of possession or other reliefs, in that event, though it involves immovable property, the suit cannot be said to be outside the jurisdiction on account of the property being situated outside the original jurisdiction. This was expressly held in Bengal Agricultural and Industrial Corporation Ltd. vs. Corporation of Calcutta & Anr., AIR 1960 Cal 123, by a learned Single Judge of this Court, since being followed all through. Same view was taken in Devendra Nath Chowdhury vs. Southern Bank Ltd., AIR 1960 Cal 626 by a Division Bench. This was approved by the Apex Court in Adcon Electronics Pvt. Ltd. 2001(7) SCC 698 (supra). We need not dilate any further.

(3.) In any event, in the present case, the reliefs being alternative, it is open to the plaintiff to abandon or relinquish a part of the claim within the scope and ambit of Order 2 Rule 2 CPC and as such we do not find any infirmity in the order of the learned Single Judge permitting the plaintiff to file an application for amendment in order to abandon a part of the claim which is outside the jurisdiction of this Court. We may record that ultimately we have not decided the question as to whether the suit involves determination of title or other matters in respect of immovable property outside the Original Side jurisdiction. On the other hand, we have held that the relief claimed cannot be conveniently decided within the frame of the suit. Conclusion: