Mahesh Gupta vs Ranjit Singh & Ors.
2009 Latest Caselaw 2003 Del

9
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+FAO(OS) 82/2009 & CM No.3458/2009, CM No.5489/2009& 5490/2009

                                         Reserved on    :    April 23rd, 2009
                                         Pronounced on :     May 13th, 2009

       MAHESH GUPTA                      ..... Appellant
                   Through            Mr. Chetan Sharma, Sr. Adv. with
                                      Mr. S.K.Tiwari and Ms.Rajeshwari
                                      Hariharan, Advocates.
                       versus

       RANJIT SINGH & ORS.                    ..... Respondents
                     Through          Mr. Mohan Vidhani and Mr. Rahul,
                                      Advocates for respondents No.1 to 3.
                                      Mr. M.K.Miglani, Advocate for
                                      respondent No.4.
       CORAM:
       HON'BLE MR. JUSTICE MUKUL MUDGAL
       HON'BLE MR. JUSTICE VALMIKI J. MEHTA

1.     Whether the Reporters of local papers may be allowed
       to see the judgment?                                           Yes
2.     To be referred to the Reporter or not?                         Yes
3.     Whether the judgment should be reported in the Digest?         Yes

                                JUDGMENT

%

VALMIKI J. MEHTA, J

1. The present appeal challenges the order dated 16.2.2009 of the

learned Single Judge whereby the learned Single Judge has returned the

plaint for presentation to the court of appropriate pecuniary jurisdiction by

FAO (OS) No. 82/2009 page 1 upholding the preliminary objection as to the non-maintainability of the suit

before the court on the ground of lack of pecuniary jurisdiction.

2. It is worthwhile at this stage to reproduce the relevant para 29 of the

plaint which pertains to the valuation of the suit for pecuniary jurisdiction

and which runs as under:-

" a) For an order of permanent injunction restraining Defendants; this is valued for Court fee and jurisdiction at Rs.200/- and the Court fee of Rs.20/- is affixed thereon.

b) For an order of permanent injunction restraining Defendants from passing off, this relief is valued for purposes of Court fee and jurisdiction at Rs.200/- and Court fee of Rs.20/- is affixed thereon.

c) For an order of delivery up, this relief is valued for purpose of Court fee and jurisdiction at Rs.200/- and Court fee of Rs.20/- is affixed thereon.

d) For an order of rendition of amounts; this relief is tentatively valued for purposes of Court fee and jurisdiction at Rs.1000/- and Court fee of Rs.150/- is affixed; the Plaintiff undertakes to pay such additional Court fee as would be found due when the actual account is rendered and ascertained by this Hon'ble Court.

e) The rest of the prayers are incapable of valuation, and, therefore, do not attract Court fee.

Thus, the suit is valued for purposes of Court fee and jurisdiction at Rs.20,10,000/- and appropriate Court fee of Rs.22,500 is paid thereon."

3. The above paragraph with respect to valuation of the suit for the

FAO (OS) No. 82/2009 page 2 purposes of Court fee and jurisdiction pertains to a suit filed by the

appellant/plaintiff seeking reliefs of injunctions, rendition of account and

delivery of offending material on account of the defendants allegedly selling

cabinets for water purifier which the plaintiff claims is, inter alia, infringing

the registered design of the plaintiff.

4. In view of the averments of the appellant in paragraph 29 of the plaint

reproduced above, the learned Single Judge has given the following finding:-

"Where the total value of the suit is Rs.1600/- a plaintiff does not have liberty to affix a higher Court fee on the suit so as to bring it within the jurisdiction of the Court he prefers. A suit for the value of Rs.1600/- for the purpose of jurisdiction has to be tried by Civil Judge and has to be filed before the Civil Judge. The plaintiff after valuing the suit at Rs.1600/- could not have paid Court fee on Rs.20,10,000/- and filed the suit before High Court. If this kind of valuation of a suit is allowed then it would result into forum shopping and a person in total disregard of Suit Valuation Act affix Court fee at any amount, pay Court fee of the Court where he wants to get his suit tried i.e. before Civil Judge or before Additional District Judge or before the High Court (since all the three have original jurisdiction) and get his matter fixed before that Court.

Section 15 of CPC then becomes redundant and the legislative mandate that suit shall be instituted in lowest

FAO (OS) No. 82/2009 page 3 grade Court competent to try it shall stand nullified".

5. We find no fault with the reasoning of the learned Single Judge. A

plaint in a suit when the same fixes the value of the different causes of action

and reliefs claimed thereon for the purposes of pecuniary jurisdiction, the

total value for the purposes of pecuniary jurisdiction would be the sum total

of the values resulting from the addition of the valuation of the causes of

action. This is the effect of reading Section 17 of the Court Fees Act, 1870

and Section 8 of the Suits Valuation Act, 1887. Once that is done, the

plaintiff cannot thereafter arbitrarily state that the pecuniary jurisdiction is a

wholly different figure than the sum total of the valuations of the different

causes of action. Clearly, the suit, therefore, could not have been filed

before this court in the exercise of original civil jurisdiction as pecuniary

valuation of the suit was only Rs.1600 i.e. less than Rs.20 lakhs when the

valuation required for instituting a suit in the original side of this court is a

valuation in excess of Rs.20 lakhs.

6. In the present appeal, the plaintiff having realized his mistake has now

filed in this appeal an application being CM no.5490/2009 seeking

amendment of the plaint. By the amendment sought, the plaintiff seeks to

amend sub-para (a) of para 29 of the suit from " For an order of permanent

injunction restraining Defendants, this is valued for Court Fee and

FAO (OS) No. 82/2009 page 4 jurisdiction at Rs.200/- and the Court fee of Rs.20/- is affixed thereon",

which was originally stated to "For an order of permanent injunction

restraining Defendants, this is valued for Court Fee and jurisdiction at

Rs.20,08,600/- and the Court fee of Rs.22,310/- is affixed thereon".

Therefore, the appellant/plaintiff seeks to amend the plaint by enhancement

of the valuation of the relief of permanent injunction originally fixed by him

at Rs.200/- to Rs.20,08,600/-

7. The issue therefore is, can this application for amendment be allowed.

It is trite that the court which does not have jurisdiction to try the matter

would have no jurisdiction to pass any orders which affect the rights of the

parties. The orders which are passed by a court which has no jurisdiction to

determine the matter, are without jurisdiction and, therefore, of no effect and

purport. The Court therefore which does not have pecuniary jurisdiction

cannot pass any orders allowing an application seeking amendment of a

plaint to bring the suit plaint within the pecuniary jurisdiction of a Court.

8. We at this stage refer to three judgments of different learned Single

Judges of this court reported as ANIL GOEL VS. SARDARI LAL 75

(1998) DLT 641 & RAKESH CHOPRA VS. TAXALI 1999 RLR

(NOTE) 83 and HANS RAJ KALRA VS. KISHAN KALRA ILR

1976(2) DELHI 745. These judgments hold that a court which does not

FAO (OS) No. 82/2009 page 5 have pecuniary jurisdiction to try a suit does not have the power to allow an

application for amendment of the plaint so as to bring the suit within the

pecuniary jurisdiction of this court. In all these cases, the learned Single

Judges of this Court refused to entertain applications for amendment of the

plaint whereby the plaint was sought to be amended to bring the suit within

the pecuniary jurisdiction of suits to be filed in this court in the exercise of

its original ordinary civil jurisdiction. We respectfully agree with the views

expressed in the judgments of Anil Goel, Rakesh Chopra and Hans Raj

Kalra's (supra) cases.

9. The counsel for the appellant has placed reliance on the judgment of

learned Single Judge of this court in the case of DEV PHARMCY VS.

NOVA INTERNATIONAL 2003 (27) PTC 395 (Del). The facts of the

said case are clearly distinguishable in as much as in the said case, the

plaintiff had valued his relief of rendition of accounts in one place at

Rs.200/- and thereafter again at another place at Rs.20,1,000/-- i.e., the

valuation was fixed with respect to relief of rendition of accounts twice,

once at Rs.200/- and also again at Rs.20,01,000/-. It is in those

circumstances that the court allowed the application for amendment of the

plaint. In the present case, however, it is not that the plaintiff has valued any

of the reliefs claimed at a value exceeding Rs.20 lakhs, but, after valuing

FAO (OS) No. 82/2009 page 6 each cause of action and its related relief at a particular value of Rs.200/-or

Rs.1000/- (totaling Rs.1600/-) has thereafter only stated "Thus, the suit is

valued for the purposes of Court fee and jurisdiction at Rs.20,10,000/- and

appropriate Court fee of Rs.22,500/- is paid thereon". Therefore, it is not as

if a particular cause of action and co-related relief is additionally valued at a

higher figure then Rs.200/- or Rs.1000/- as already earlier given in the

preceding sub-paras of para 29 of the plaint. Another judgment relied upon

by the plaintiff is in the case of Jagdish Singh Vs. Daljit Singh 1980 RLR

546. We find that the judgment does not at all deal with the issue as to

whether a court which does not have jurisdiction can allow the amendment

of the plaint. In the said case, the issue was with regard to whether

appropriate court fee was paid on the valuation which was Rs.80,000/- in

that case. For the sake of completion it may be stated that in the narration of

facts in the judgment it was mentioned that originally the plaintiff had not

valued the suit for the purposes of jurisdiction and the application was

therefore filed to fix the value for the purposes of jurisdiction and which was

allowed on account of the fact that there was no opposition of the defendant

to that application. The case in Jagdish Singh, therefore, is not a judgment

laying down the ratio that amendment can be allowed by court which does

not have jurisdiction to entertain the suit.

FAO (OS) No. 82/2009 page 7

10. We may note that the application for amendment may have been

considered by us differently if it was the contention of the appellant/plaintiff

that there was a typographical or any clerical error while typing the different

sub-paras of para 29 of the plaint and in fact and reality the

appellant/plaintiff had intended jurisdiction originally itself to be over Rs.20

lakhs with respect to either any or the cumulative effect of different sub-

paras of para 29 of the plaint. In such a case, it would be a case of the court

having jurisdiction but on account of typographical or clerical mistake the

valuation for the purposes of pecuniary jurisdiction would have been stated

at a figure which would be less than the figure for the pecuniary jurisdiction

required for filing a suit in this court. However, by the amendment, the

plaintiff only wants to deliberately increase the valuation or injunction of its

para 29 (a) from Rs.200/- to Rs.20,08,600/-

11. During the course of hearing of the appeal, the counsel for the

appellant/plaintiff contended that the appellant will be caused grave

prejudice if the order returning the plaint is sustained in as much as

considerable evidence has already been recorded in the suit and, there was

also an order of injunction against the respondents/defendants by the consent

of the counsel for the parties. Taking into account the considerable time

invested by this court in this suit, we have decided to suo moto exercise our

FAO (OS) No. 82/2009 page 8 powers under Section 24(1) read with Section 24(5) of the Code of Civil

Procedure, 1908 and instead of the order returning the plaint as passed by

the learned Single Judge, we modify the order of the learned Single Judge

and direct that, in the facts of the case, the suit itself be transferred to the

competent court of civil jurisdiction. The effect of exercising of powers

under Section 24 CPC would mean that the suit would be taken up by the

transferee court from the stage at which it was pending before the impugned

order dated 16.2.2009 was passed. The learned counsel for the respondents

has stated that the respondents wanted to move an application for vacation of

the interim order of injunction, but, which he did not do in as much as the

matter was heard on the aspect of the lack of pecuniary jurisdiction of the

court. Therefore, while directing the transfer of the suit, we further order

that the interim order of injunction operating against the respondent in the

suit will continue only till the date when the matter is taken up on the first

date by the concerned Civil Judge. The Civil Judge will decide afresh the

issue of grant or denial of an ad interim/ex-parte injunction on the first date

and he will also decide expeditiously, and preferably within four weeks from

the first hearing, the injunction application as filed by the plaintiff in the suit.

The learned Single Judge should take up the issue of granting or denying of

injunction (ex parte/ad interim or pendent lite) entirely uninfluenced by the

FAO (OS) No. 82/2009 page 9 any observations of this court or the fact that earlier an injunction order was

passed by the consent of the parties.

12. Accordingly, the present appeal along with all pending applications

are disposed of with the direction that the order of the learned Single Judge

holding that this court does not have pecuniary jurisdiction is upheld, but,

we direct that the suit itself be transferred to the competent court of civil

jurisdiction with the further directions with respect to injunction as stated in

para 11 above. The parties to appear before the learned District and

Sessions Judge on 25.5.2009 for marking the suit to an appropriate Court.

Ordered accordingly.

VALMIKI J. MEHTA, J

MUKUL MUDGAL,J th MAY 13 , 2009 ib

FAO (OS) No. 82/2009 page 10