Partly allowed

B. Y. Construction Pvt. Ltd. v. Ashok Ramchandra Pawar and Ors.

Bombay HC12 Apr 2010WP/10551/2009

Case brief

AI extract

What is this about?

This court quashed an order rejecting a plaint amendment application. The High Court held the trial judge erred in directing valuation before deciding the amendment, as granting the amendment might oust pecuniary jurisdiction, requiring return to the proper court instead of a valuation directive.

What did the court decide?

Impugned order dated 19.09.2009 quashed; Trial judge directed to decide amendment application afresh after hearing parties.

B. Y. Construction Pvt. Ltd. Vs Ashok… — Civil Procedure and Limitation | Bombay HC (2010)

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SRJ

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELATE JURISDICTION

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WRIT PETITION NO.10551 OF 2009

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M/s. B.Y. Construction Pvt.,Ltd.,
through its Director
Shri Yuvraj S. chumbalkar.. Petitioner.

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V/s.

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Shri Ashok R. Pawar
& Others.. Respondents.

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Mr. R.S. Alange, for Petitioner.

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Mr. A.A. Valsangkar i/b. Pankaj Das, for Respondent No.1.
Mr. A.S. Kulkarni, for Respondent Nos. 2 and 3.

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CORAM :A.S.OKA,J.

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DATE :12th APRIL,2010

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P.C.:-

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1]Notice for final disposal at the stage of
admission was issued on 4th January, 2010. Heard learned

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Counsel appearing for the Petitioner, learned Counsel
appearing for the 1st Respondent and learned Counsel
appearing for the 2nd and 3rd Respondent. The Petitioner is
the original Plaintiff and Respondents are the Defendants.

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The Petitioner filed a suit simplicitor for injunction

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restraining Respondents from developing the suit property.
An application for amendment was made for the purpose of
incorporating a challenge to the alleged agreement

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SRJ 2 wp-10551-09.sxw

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executed by the 1st Respondent in favour of the 2nd and 3rd
Respondents. A prayer for declaration was sought to be
incorporated that the agreement of development executed
by the 1st Respondent in favour of 2nd and 3rd Respondent was
illegal. A prayer for specific performance of the
Agreement dated 26th October, 2003 executed by the 1st
Respondent was also sought to be incorporated. The
impugned order has been passed on the said application for
amendment. The application has been rejected. Paragraphs
5 to 7 of the impugned order read thus:-

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5]On going through the amended
application, it appears that the plaintiff
has been claiming for specific performance
of contract in respect of the suit land
worth of Rs.54,00,000/-. Therefore it
exceeds the pecuniary jurisdiction of this
court. The plaintiff has not made averment
regarding valuation for the relief he
sought, in the proposed amendment.

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6]In view of Order 2, Rule 2 whether
the relief sought is including in the same
cause of action or not will be decided on
merit. But since the plaintiff by proposed
amendment did not value the proposed claim
property. Therefore, the plaintiff is
directed to take steps to that regard or he
may withdraw the suit and may file to the
proper court.

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7]Plaintiff to comply about the
valuation of proposed claim for specific
performance of contract and declaration that
sale deed executed in favour of defendant
nos. 2 and 3 be cancelled.�

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2]The learned Counsel appearing for the 1st

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Respondent submitted that there is no reason to interfere
at this stage. The application for amendment is still
pending and the same has not been decided. He submitted
that objection to the valuation of the suit for the

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purpose of Court Fees and jurisdiction was already raised
by the 2nd and 3rd Respondents in their Written Statement.

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He submitted that in the context of the said objection,
the Trial Court has observed that the suit has not been
valued properly and, therefore, no fault can be found with
the impugned order. The learned Counsel appearing for 2nd
and 3rd Respondents supports the submission of the learned

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Counsel appearing for the 1st Respondent.

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3]After having heard the learned counsel appearing

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for the parties and after perusal of the impugned order, I

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am constrained to observe that the impugned order is
perverse and illegal. The learned Trial Judge observed
that by the proposed amendment the Petitioner was trying

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to seek relief of specific performance and if the same is

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allowed the valuation of the suit will exceed the
pecuniary jurisdiction of the Court. The learned Judge has
ignored the well settled law that a Court has power to
grant amendment of the plaint which will have effect of
ousting the pecuniary jurisdiction of the Court. In such
a case, after the amendment is carried out, the Court is
required to return the plaint for presentation to the
proper Court. In paragraph 6 of the order, the learned

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SRJ

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Trial Judge has directed the Petitioner/Plaintiff to
properly value the proposed claim. The learned Judge has
thereafter stated that the Plaintiff may take steps in
that regard or may withdraw the suit and may file the same
in proper Court. In paragraph 7 of the order, the learned
Judge directed to correct valuation of the proposed claim.

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4]It was the duty of the learned Judge to consider
the application for amendment of the plaint on merits.
After the amendment was allowed, if the Court was of the
view that the suit has not been valued properly, an
enquiry under section 8 of the Bombay Court Fees Act, 1959
could have been already held by the learned Judge. If
learned Judge was of the view that the amendment of the
plaint will oust the pecuniary jurisdiction of his Court,
the learned Judge could have taken appropriate steps in
accordance with the law after the amendment was carried
out. The effect of the impugned order is that even before
amendment is carried out, the Petitioner has been directed
to amend the valuation clause of the plaint for valuing
the suit properly. The entire approach of the learned
Judge is completely erroneous and, therefore, the impugned
order will have to quashed and set aside with a direction
to the learned Judge to decide the application for the

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amendment of plaint in accordance with the law.

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5]Hence, I pass following order:-

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(i)The impugned judgment and order
dated 19th September, 2009 is quashed and set
aside;

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(ii)The learned Trial Judge will decide
the application at Exhibit 34 afresh after
giving an opportunity to the parties of being
heard. The application shall be decided in
accordance with law;

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(iii)All the contentions of the parties
on merits of the application at Exhibit 34 are
expressly kept open;

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(iv)Writ Petition is partly allowed in
the above terms.

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(v)If Defendants have not filed any
reply to the application for amendment of the
plaint, the trial Court will grant reasonable
time to the Defendants to file a reply.

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(A.S.OKA,J.)

B. Y. Construction Pvt. Ltd. v. Ashok Ramchandra Pawar and Ors.

Case brief

What is this about?

What did the court decide?

B. Y. Construction Pvt. Ltd. v. Ashok Ramchandra Pawar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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