Harin Shah vs State Of Maharashtra
2013 Latest Caselaw 5918 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: December 20, 2013

+            CM(M) 692/2008 & CM No.8383/2008

      HARIN SHAH                                           ..... Petitioner
                          Through      Mr.Kamal Mehta, Adv. with
                                       Mr.Sudeep Singh, Adv.

                          versus

      STATE OF MAHARASHTRA                     ..... Respondent
                   Through Mr.A.Y.Chitale, Sr.Adv. with
                           Mr.Mike Desai, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The petitioner herein has challenged the impugned order dated 22 nd April, 2008 passed by Mr.R.B. Singh, Additional District Judge, Tis Hazari Courts, allowing the respondent's application under Order VI rule 17 read with Section 151 CPC seeking to amend its plaint.

2. The facts of the case are that the respondent filed a suit for declaration of respondent's right to immovable property, for possession and for recovery of damage for wrongful use and occupation of the said property. The written statement was filed by the petitioner (defendant in the suit). A specific objection was raised by the petitioner in the written statement stating that the suit filed by the respondent was under valuation as the value of the suit was about Rs.53.50 lac. In view of the statement made in the written statement and in order to avoid any technical objection, the respondent wanted to amend the valuation of the suit property to Rs.53.50

lac as well as to bring on record the subsequent events which were necessary in order to go into the root of the matter. The following amendments were sought by the respondent in the plaint:

"...The valuation para no.8 is required to be amended as follows:

"The valuation of the suit property for the purpose of Court Fees and jurisdiction is Rs.53.50 lacs being the market value of the suit property and Rs.55,000/- as damages for wrongful use and occupation of the suit property. Court Fees of Rs.55,097/- has been paid".

4. Para is required to be incorporated after para no.6 as para no.6A to the effect:-

"That the plaintiff being owner of the entire Sirmur Plot, the same having been handed over to the plaintiff by the Union of India (Land & Development Office, Nirman Bhawan, New Delhi) on 10.5.1999 and after taking over the possession of the said plot, the plaintiff applied for mutation of the Sirmur Plot and got mutated on 03.08.1999. Thereafter, plaintiff has evicted the occupants following due process of law".

3. The application filed by the respondent was allowed by the impugned order dated 22nd April, 2008, subject to cost of Rs.10,000/-. It is not disputed by the parties that in view of the increase of pecuniary jurisdiction, the suit has been transferred to this Court. The submission of the petitioner now is that once the amendment passed in respect of increase of pecuniary jurisdiction in the suit, the learned Additional District Judge was ceased of the suit proceedings and he was not competent to decide the part of amendment wherein the respondent wanted to bring certain additional facts.

4. The other objection of the petitioner is that for the purpose of amendment, the respondent filed four applications for amendments from

time to time. Therefore, it ought not to have been allowed in view of the withdrawal of two earlier applications and not to proceed with third application for similar relief. However, it appears that the said submission is without any force, as from the record it is evident that two applications were withdrawn by the respondent with liberty to file fresh one. The third application was abandoned which is now not pressed by the respondent. As far as the fourth application under Order VI Rule 17 CPC is concerned, the same was allowed by the learned trial court. No doubt, when the fourth application was decided, the third application was not pressed by the respondent before the learned trial court. It is true that there was no formal order of withdrawal or any effective order in the third application. Counsel during the hearing has made the statement not to press the said application. The prayer is not serious opposed by the learned counsel for the petitioner. Thus, the application even otherwise would not survive in view of the order passed in the fourth application. The question of resjudicata in the facts of the present case does not arise. Firstly, the third application was not finally decided by the court and there was no adjudication in the said application. Therefore, the third application has no consequence and is allowed to be withdrawn.

5. As far as the objection of the learned counsel for the petitioner that after passing the order to increase the pecuniary jurisdiction, the learned trial Court was not competent to decide the remaining part of the amendment. The said arguments are also without any force in view of the facts and circumstances in the present case, as both the amendments sought by the respondent in a single application, as far as additional information/events which are sought to be brought on record by the respondent are concerned, it

is difficult to know that by deciding the application whether the relief of additional facts are allowed to be brought on record or firstly, the amendment on the issue of pecuniary jurisdiction was considered and decided. It was a composite order. Both amendments are decided simultaneously. I do not agree with the petitioner's counsel that the remaining part of amendment ought to have been decided by this Court once the suit is transferred on account of pecuniary jurisdiction, as I feel that the issue is now become very technical in nature in nature in the present case.

6. Even otherwise, this Court is of the view that the learned Court was competent to decide the second part of amendment, once the amendment of pecuniary jurisdiction was allowed, in view of the settled law in the following judgments:-

(i) Harish Kumar Chaudhary vs. Vimal Wadhawan & Anrs., 47 (1992) DLT 246, wherein it has been held that the amendment of the plaint can be allowed even if it ousts its own jurisdiction in the matter and after the amendment is carried out the proper course to be followed is to return the amendment plaint to the plaintiff for presentation to the property court.

(ii) Kundan Lal Vs. Sri Narain Lal & Ors., AIR 1958 Allahabad 96, wherein it has been held that there is no justification for saying that the court cannot allow amendment if it has no jurisdiction to try the suit.

7. Having considered the decisions as referred above, I am of the view that benefit of circumstances would go in favour of the respondent. Since both the set of amendments are allowed by a single order, I do not find any infirmity in the impugned order as the amendment sought by the respondent

would not change or alter the subject matter of the suit. There is no legal error in the impugned order. Therefore I am not inclined to interfere in the same on the basis of the petition filed under Article 227 of the Constitution of India. The present petition is accordingly dismissed. The pending application is disposed of.

(MANMOHAN SINGH) JUDGE DECEMBER 20, 2013