VIVEKANANDA NIDHI Vs. ASHIMA GOSWAMI

JUDGEMENT

(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 be allowed as it would change the nature and character of the suit property. Mr. Dasgupta contended that in view of the nature of amendment sought for it would be evident that if such amendment was allowed, the learned Munsif would lose his jurisdiction to try the suit and therefore, such an application for amendment which would oust the jurisdiction of the Munsif to try the suit could not be allowed by him and in that case the learned Munsif instead of allowing the application for amendment of the plaint ought to have held that he had no jurisdiction to allow such amendment of the plaint and therefore, the plaint should be returned to the plaintiff for filing to an appropriate court with the application for amendment of the plaint which can only be dealt with by the transferee court. In support of this contention Mr. Dasgupta relief on a Division Bench decision of the Nagpur High in the case of Lalji Ranchoddas v. Narottam Ranchoddas, AIR 1953 Nagpur 273, and also on the Division Bench decisions of this Court in the case of Mohd. Jaira Khatun v. Janab Mohd. Jani Alam, AIR 1978 cal 133 and 1983(2) Cal. H.N. 7, Mohd. Jeeves Ali v. Rohima Ali and on a Supreme Court decision reported in AIR 1960 SC 335, Rukhma Bai v. Rukmanand, Relying strongly on the Division Bench decision of the Nagpur High Court, Mr. Dasgupta Contended that the trial Court in the instant case also without allowing the application for amendment of the plaint ought to have directed that the unamended plaint shall be returned with the application for, amendment, for presentation to the proper court. Therefore, Mr. Dasgupta contended that the learned Munsif had acted illegally and with material irregularity in the exercise of his jurisdiction in allowing the application for amendment of the plaint and in directing the consequences to be followed by the transferee court after the application for amendment was allowed. Reliance was also placed, as already said hereinabove on the Division Bench decision of this Court reported in AIR 1978 Cal 133, Mohd. Jaira Khatun v. Janab Mohd. Jani Alam. In this decision of this Court the principle that was laid down was that when the Court had inherent lack of jurisdiction to entertain a suit it was not competent to grant amendment of the plaint in such a suit to bring it within its jurisdiction. The reasons for such conclusions is that granting an amendment postulates the authority of the Court to entertain the suit and to make an order for amendment therein but where the Court inherently lack jurisdiction to entertain the suit it cannot make any order for amendment to bring the suit within its jurisdiction. In that context it was held that the Court would be exercising jurisdiction which it has not got. In the present case the position is just the reverse. It is not in dispute that the learned Munsif, second court at Alipore had the jurisdiction to entertain the suit filed by the plaintiff/opposite party as it was filed for declaration and injunction which was valued at Rs. 100/- only. But after the amendment of the plaint is allowed automatically the learned Munsif loses his jurisdiction to try the suit and in that case, the Court having jurisdiction to try the suit would have the jurisdiction to pass necessary orders in the suit. Therefore, in my view, this decision cannot help me in coming to a proper conclusion on the question in hand. But it may be noticed why Mr. Dasgupta of the Court in paragraph 8 at page 136 has approved the principles laid down in the Nagpur case.

(3.) From a persual of paragraph 8 of the aforesaid decision of this Court in the case of Johar Khatun v. Mohd. Jani Alam it only appears that Anil Kr. Sen.J. (as his Lordship then was) observed that the view taken by him was also the consistent views of other High Courts and reference was made to the decision of Nagpur High Court. It may not be out of place to mention that the consistent views of other High Courts which were followed by this Court are to the following effect;