Mohd. Yunus vs Nayeem Ahmed

U.C. Maheshwari, J.—The presence of respondent No. 2 and 3, being co-defendants with the petitioner in the trial Court and have not challenged the impugned order, are not required, as such the question involved in this petition could be considered and adjudicated effectively only in presence of the petitioner and respondent No. 1. Hence notice of this petition against respondent No. 2 and 3 are hereby dispensed with. Heard on the question of admission.

The petitioner/defendant has filed this petition under Article 227 of Constitution of India for quashment of the orders dated 23.9.2011 and 26.9.2011 (collectively Ann. P. 1), passed by 13th Civil Judge Class-II Bhopal in R.C.S. No. 523-A/10, whereby application of the plaintiff/respondent No. 1 filed under Order 6 Rule 17 of CPC for amendment in the plaint to insert the additional prayer for declaration besides the prayer of perpetual and mandatory injunction made at the time of filing the suit, has been allowed vide order dated 23.9.2011 and pursuant to it on becoming the valuation of suit Rs. 11,00,000/- beyond the pecuniary jurisdiction of aforesaid Court by virtue of Order 7 Rule 10 of CPC the suit has been directed to return to the respondent No. 1/plaintiff to file the same before the Court having the territorial and pecuniary jurisdiction over the matter.

The respondent No. 1/plaintiff initially filed the impugned suit against the petitioner/defendant No. 1 and the respondent the respondent No. 2 to 5 for perpetual and mandatory injunction with respect of the property described in the plaint. On filing the written statement on behalf of the petitioner/defendant No. 1, the issued were framed and trial was commenced. In the course of trial plaintiff/respondent No. 1 filed the impugned application under Order 6 Rule 17 of CPC (Ann. 3) for amendment to insert the prayer for declaration declaring him to be the owner of the disputed property as he has perfected his title by adverse possession. By filing the reply (Ann. P. 4) the averments of the application were denied and disputed by the petitioner.

On consideration vide impugned order such application was allowed and the respondent No. 1/plaintiff was permitted to incorporate such amendment in the plaint and pursuant to it on becoming the suit beyond the pecuniary limit of such Court they by virtue of Order 7 Rule 10 of CPC the same has been directed to return to the respondent No. 1 to file the same before the competent Court having the territorial and pecuniary jurisdiction over the matter. The same is under challenged in this petition.

The petitioner''s counsel after taking me through the averments of the petition as well as the papers placed on record including the copy of the plaint filed in the trial Court assailed the impugned order mainly on the ground that after commencement of the trial the proposed amendment could not be allowed. It was also argued that on allowing such amendment the basic structure and nature of the suit has been changed as initially the suit was filed only for perpetual and mandatory injunction and due to this amendment the same has been converted in to the title suit. According to her, on affirming such order the right of the present petitioner to contest the same on basic pleading of the suit shall be prejudice and prayed for setting aside the impugned order by admitting and allowing this petition.

Having heard, keeping in view the arguments advanced by the petitioner counsel I have carefully gone through the papers placed on record. Mere perusal of paragraph one of the plaint (Ann. P. 1), it is apparent that the respondent No. 1/plaintiff has stated that he is owner of the disputed Plot No. 36 and with these pleading the suit for perpetual and mandatory injunction was filed on the valuation of Rs. 2,000/- but later on for the reasons stated in the IA (Ann. P.3), the plaintiff/respondent No. 1 proposed the aforesaid amendment whereby he has taken the plea that he has perfected the right over the plot by adverse possession and pursuant to it he also proposed the amendment in the prayer clause declaring himself to be the owner of such plot.

In the aforesaid factual matrix, it is apparent that such proposed amendment is entirely based on exiting pleading of para one of the plaint, in which the respondent initially pleaded that he is a owner of the property and from such pleading the proposed amendment being apparently an additional approach or some different approach of the existing pleadings could not require any interference far setting aside the same.

It is settled proposition of law whenever any amendment is proposed by any of the parties in his pleading and if the same appears to be an additional or different approach of the existing pleading then such amendment could not be disallowed or rejected. As laid down by the Apex Court in the matter of A.K. Gupta and Sons Vs. Damodar Valley Corporation, in which it was held as under:

It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred Welch v. Neale.(1) But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation see AIR 1921 50 (Privy Council) and L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co.,

Although the petitioner''s counsel in support of her argument cited the case laws of this Court in the matter of Mankunwarbai Patidar Vs. Vinod Kumar and Others, and in the matter of Rashid Khan and Another Vs. State of M.P. and Others, . I have carefully gone through both the decisions but in view of aforesaid decision of the Apex Court in the available factual matrix of the instant case the same are not helping to the petitioner. The same are also distinguishable on facts.

So far the cause of action with respect of declaration is concerned, in the available circumstance, the same was available to the respondent No. 1 not only on the day of filing the suit but also on the date of filing the amendment application because to insert the aforesaid prayer for declaration the respondent was having the recurring cause of action and therefore such count also the impugned order does not require any interference.

So far the order dated 26.9.2011 whereby in the lack of pecuniary jurisdiction the plaint was returned to the respondent No. 1 to file the same before the appropriate Court having pecuniary and territorial jurisdiction over the matter is concerned, in view of the provision of Order 7 Rule 10 of CPC such approach does not appear to be contrary to such provision. When ever any suit is found by any Court not maintainable in the lack of pecuniary or territorial jurisdiction then Such Court has no option except to return the plaint to the plaintiff to file the same before the Court having such jurisdiction to entertain the same.

Apart the above it is also settled proposition of law that whenever any interim order is passed by the subordinate Court under the discretionary and vested jurisdiction then the same could not be interfered under the revisional jurisdiction as laid down by the Apex Court in the matter of The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, in which it was held as under:

In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong ; may be in accordance with law or may not be in accordance with law ; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction u/s 115 of the Civil Procedure Code: See the decisions of this Court in Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others,

In view of the aforesaid, I have not found any material circumstance to interfere in the order impugned under Article 227 of the Constitution of India. Hence, this petition being devoid of any merits is hereby dismissed. In view of the aforesaid discussion, the petition being devoid of merits is hereby dismissed at the stage of motion hearing.