Murti Sri Sheoji Bhagwan and Others vs Hindalco Renukoot and Others

A.P. Singh, J.—This revision has been filed against the order passed by Sri B. C. Kandpal, IInd Addl. District Judge, Mirzapur in Misc. Case No. M-3/1988 whereby the learned Addl. District Judge has dismissed the review application of the applicants.

By the application, the applicants sought review of the order dated 11.2.1988 by which the court (then presided by Sri A. P. Singh, Addl District Judge) had rejected the plaint under Order VII, Rule 11 of the Code of Civil Procedure, 1908 for the reason that the relief claimed in the suit was undervalued and the Plaintiff on being required by the Court to correct its valuation within the time fixed had failed to do so.

In brief, the facts of the case may be stated which are as follows:

Plaintiff-applicant filed a suit for permanent injunction and for demolition of unauthorised construction of a cinema building, shops and other buildings belonging to U.P. Chalchitra Nigam, the Defendant. The Defendant put in appearance and filed his written statement. The Defendants took exception to the valuation of the suit and the court fee paid in respect of the properties, which were subject matter of the suit. It was alleged that the properties were valued on much higher amount than the valuation which was disclosed in the plaint and the court fee paid too was not sufficient. On the objection so taken by the Defendants, the trial court framed issues 16A and 16B, which were decided together as preliminary issues on 31.10.1987. The court held that the value of the building, the boundary wall and the shops which were situate in the cinema building were, in any case, not less than Rs. 10 lacs and the value of the land on which the constructions were standing was not less than Rs. 50 thousand. In respect of issue No. 16B, the court held that the Plaintiff was liable to pay more court fee as the court fee paid in the suit was less than the required court fee. The Plaintiff was accordingly directed to amend the pleadings within a fixed time. The plaint was, however, not amended and the time lapsed. Subsequently, an amendment application was filed by the Plaintiff seeking the amendment of the plaint, against which Defendants filed their objection and upon hearing of applicants'' application and the objection of the Defendants, the Court rejected the application upholding the objection; the plaint too was rejected for the reason that has already been disclosed above.

After the rejection of the plaint and the amendment application a review application was filed which came to be heard by Sri B. C. Kandpal on transfer.

I have heard Sri G. D. Srivastava, learned senior counsel appearing in support of the revision and Sri N. B. Singh, on behalf of the Respondents.

It has been argued by Sri G. D. Srivastava that since the order which was sought to be reviewed by Sri Kandpal, had not been passed by him but by another officer as such, Sri Kandpal had no jurisdiction to decide the review application.

I will not allow this objection to be raised in this Court, for the first time. This objection does not seem to have been raised on behalf of the applicant before the court of Sri Kandpal, the Addl. District Judge, before whom the application for review of the order dated 11.2.1988 passed by Sri A. P. Singh. Addl. District Judge came up for disposal. Nothing has been indicated even in the grounds of this revision application that an objection to this effect was taken but had not been referred to in the order passed by Sri Kandpal. In the circumstances objection on this ground cannot be entertained.

Had the revisionist raised the objection at the appropriate time the Judge would have certainly dealt with it and the circumstances in which he heard and decided the review application instead of the Judge whose order was sought to be reviewed would have been given in the order under challenge in this revision. Having failed to raise the objection at the proper stage applicant cannot raise it now.

It was next argued by Sri Srivastava that recourse to the right to amend the plaint can be taken by a Plaintiff at any stage of the hearing of the suit as such, the trial court committed illegality in rejecting the amendment application and also the plaint under Order VII, Rule 11, of the Code.

The contention, as already held by the trial Judge in the impugned judgment is misconceived. It is true that a Plaintiff for Just and proper reason, can seek amendment of the plaint at any stage of the hearing of the suit, but that by itself does not entitle the Plaintiff to disregard the directions, if any, made by the court for the amendment of the plaint. If the court has already made direction while deciding a preliminary issue whereby the Plaintiff is obliged to amend the plaint within a fixed period of time, then the Plaintiff cannot take recourse to his right to move amendment application at any stage of the hearing beyond the period so fixed. In the circumstances, the trial court was fully Justified in rejecting Plaintiff-applicant''s amendment application and also the plaint, which was defective for the reason given in Order VII, Rule 11 (b) of the Code.

I find no force in the present revision petition, which is dismissed, in limine.