1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 26 OF 2010 1. Jose Belarmino Antao, son of late Mariano Antao, aged about 78 years, married, House No.E-39, Opposite Arcanjo Menezes Hospital, Rua Bernardo Da Costa, Margao, Salcete Goa. 2. Smt. Blaise Antao, wife of Jose Belarmino Antao aged about 73 years, Occupation Housewife residing at House No. E-39, Opposite Arcanjo Menezes Hospital, Rua Bernardo Da Costa, Margao, Salcete,Goa. .. Petitioners Versus 1. Floriano Gambeta da Piedade Avila son of late Inacio Caetano de Avila aged about 68 years, married, landowner, resident of house No. 198, near Peoples High School, Mala, Panaji, Goa. 2. Marilia Cunha e Avila daughter of Joaquim Joao da Cunha, aged about 56 years, occupation service, residing at house No.198, near Peoples High School, Mala, Panaji, Goa. (since deceased and represented as under) 2a. Shri Rui caetano Sebastiao de Avila son of Floriano Gambeta a Piedade Avila, aged 34 years, occupation service, residing at house no.198, near Peoples High School, Mala, Panaji, Goa. .. Respondents 2 Mr. S. S. Kakodkar, Advocate for the petitioners. Mr. N. Sardessai, Advocate for the respondents. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE JUDGMENT: 2 nd February, 2010 DATE OF PRONOUNCING THE JUDGMENT : 12 th March, 2010. JUDGMENT : Heard. Perused petition and the annexures therewith. 2. Order dated 11.12.2009 declining the permission to amend additional written statement passed by the learned CJJD 'C' Court, Margao in RCS No.295/2001/C, is challenged in this petition. 3. The said suit has been instituted by the respondents in the Court of CJJD, Margao for decree of permanent injunction restraining the petitioners/ defendants from interfering with retained portion of the suit house and/ or obstructing the respondent from entering into the said portion of the suit house. Initially, the suit was valued at 3 Rs.100/- for the purposes of Court fee and jurisdiction. Later on, the respondents / plaintiffs amended the plaint and alternatively sought the restoration of possession of the said portion and this relief of possession was valued at Rs.1000/- vide order dated 21.8.2007 passed below the application for amendment dated 17.8.2007. The petitioners disputed this valuation with additional written statement dated 22.8.2007. The petitioners moved the Trial Court for framing of additional issues in light of the dispute raised as to the valuation of the suit. However, no additional issue was framed and the Trial Court proceeded to pass the decree for permanent injunction vide judgment and order dated 10.9.2007. 4. The Appellate Court – the learned District Judge, South Goa on the appeal preferred by the petitioners being Civil Appeal No.58/2007 set aside the judgment and order of the Trial Court dated 10.9.2007 passed in the said suit and remanded the suit with direction to the learned CJJD, Margao to frame additional issues vide judgment and order dated 23.5.2008. The learned CJJD 'C' Court, Margao thereupon framed additional issue “ whether the plaintiffs prove that the suit is properly valued?”, and directed the parties to lead 4 evidence pertaining the valuation of the suit vide order dated 9.7.2008. The plaintiffs did not lead any evidence on the point of valuation for the purposes of jurisdiction leaving the learned Trial Court to decide the said issue as a preliminary issue on the basis of the available material before it. The learned Trial Court observed that the suit property was situate in a prime area like Margao and, therefore, the valuation stated in the plaint was not reasonable. The learned Trial Court directed the respondents/ plaintiffs to correct the valuation of the suit and to pay requisite Court fees within 10 days lest the rejection of the plaint under Order VII, Rule 11 of CPC vide order dated 10.09.2008. 5. The respondent/ plaintiffs thereupon moved an application to value the amended relief of restoration of possession of the portion of the house at Rs.75,000/-. Amendment to the plaint to that effect was solicited. This valuation of amended relief at Rs.75,000/- was disputed by the petitioners/ defendants vide reply dated 20.10.2008 to the said application. The learned Civil Judge after hearing the parties and considering the material on record allowed the application for amendment of the plaint. This order dated 25.2.2009 allowing the amendment of the plaint in 5 relation to the valuation of the suit was challenged before this Court in W.P. No.164/2009. This Court dismissed the said writ petition vide order dated 19.3.2009 without finding fault with the order dated 25.2.2009 passed by the learned CJJD 'C', Court, Margao. 6. The petitioners/ defendants, thereafter, tendered additional written statement dated 6.4.2009 vis-a-vis the amended valuation of the suit at Rs.75,000/-. Along with the said additional written statement, the petitioners tendered list of documents making reference to the report of Engineer, Mahendra Kakule as well as another application for framing of additional issue questioning the valuation of the suit at Rs.75,000/-. This application for framing additional issue was rejected by the Trial Court vide order dated 1.7.2009. 7. The petitioners assailed this order dated 1.7.2009 rejecting their plea for framing additional issue by preferring W.P. No.486/2009 before this Court. This Court by its order dated 5.8.2009, after hearing the parties, quashed the order dated 1.7.2009 of the learned Civil Judge and allowed the petitioners to withdraw the application dated 6.4.2009 filed in the Trial Court for framing additional issues regarding 6 valuation with liberty to apply in the Trial Court for appropriate amendment to the written statement for raising the proper pleadings as to the correct valuation of the suit property and pecuniary jurisdiction of the Trial Court. Freedom was given to the learned Trial Court to decide such application if moved by the petitioners on its own merits in accordance with law. 8. Following the order dated 5.8.2009 in W.P. No.486/2009, the petitioners moved an application for amendment of the written statement dated 6.4.2009 on 2.9.2009. The report of the valuer dated 10.4.2009 valuing the portion of the suit house property at Rs.29,76,000/- was tendered with the said application. This application was resisted by the respondents vide reply dated 23.9.2009. After hearing the parties, the learned Civil Judge dismissed the said application of the petitioners by passing impugned order dated 11.12.2009. 9. In response to the submissions made on behalf of the petitioners/ defendants that the proposed amendment was necessary to raise the defence of undervaluation for the purpose of Court fee and jurisdiction and to decide this real 7 controversy between the parties, the learned Civil Judge noted that the pleadings to that effect were already on record in form of written statements Exh.107/B and 160/B. The learned Civil judge further observed that the valuation of Rs.75,000/- was accepted as correct valuation of the suit vide order dated 25.02.2009 Exh.158/D and this decision was upheld by this Court vide order dated 19.03.2009 in W.P. No.164/2009. It is on this background, the learned Civil Judge considered the proposed amendment to the written statement as not at all necessary to decide the controversy between the parties and proceeded to disallow the application for amendment of the written statement. 10. Accepting the ratio of the judgment in Mohan Maluram Agarwal Versus Kaladevi Sawarmal Agarwal and another's case reported in 2007(1) Bombay Cases Reporter 135, the parties are not at dispute that proviso to Order VI, Rule 17 of CPC added by the amendment Act of 2002 to the provision of Order VI, Rule 17 of CPC as stood previously is not applicable to the present suit which was filed in 2001. Unamended provisions of Order VI, Rule 17 of CPC gives discretion to the Civil Courts in the matters of allowing the amendments to the pleadings with a mandate that all such 8 amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. While exercising the writ jurisdiction, this Court has only to see whether the Court below exercised its jurisdiction properly in regard to the relevant provisions of law and not perversely. With reference to the judgment of the Apex Court in Ouseph Mathai and Ors. V/s. M. Abdul Kadir's case reported in (2002)1 SCC 319 cited by Ld. Adv. Nitin Sardessai for the respondents, it needs to be noted that only wrong decisions may not be a ground for the exercise of jurisdiction under Art. 227 unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate Courts resulting in grave injustice to any party. 11. Relying on the judgments reported in AIR 2007 SC 1663- Usha Balashaheb Swami and others Versus Kiran Appaso Swami and others, 2007(3) All MR 295- Mrs Hanumandas Vallabhdas and Sons Versus Pitambar Bhatu Chaudhari, 2006(1) All MR 291 – Mr. Michael Denney and another Versus Mrs. Olinda Rodrigues and Olinda D'Souza, (2002) 2 SCC 445 – Gurudial Sing and others Versus Rajkumar Aneja and others, 2004(3) All MR (Journal)20 – M/s. Vedant Paper Craft Private Limited and another Versus 9 Indian Bank, 2003(3) Bombay Cases Reporter 231 – Badrinarayan Bansilal Somani Versus Vinodkumar K. Shah, learned Advocate Kakodkar for the petitioners submitted that the amendment to the written statement cannot be considered on same principle as an amendment to the plaint and the Court has to be liberal in granting amendments to the written statements, particularly in relation to the matter in controversy and even for adding a new ground of defence, and also for explaining the facts already brought before the Court or incorporated in the written statement or for amplifying the case already on record. There can be no quarrel on this submission. However, what figures pertinently in the instant case are the pleadings in the written statement Exh.107/B and 160/B regarding valuation of the suit and the jurisdiction of the Court. 12. Additional written statement dated 22.8.2007 Exh.107/B, a copy of which is found at Annexure E to the petition at page 69, reveals the relevant pleadings as under : “1(a) with reference to para 11 of the amended plaint, the relief is undervalued. The restoration of possession cannot be quantified for just Rs.1,000/- (Rs. One Thousand Only) for the 10 purpose of Court fee and jurisdiction. The suit house along with appurtenant land is surveyed under Chalta No.10 of P.T. Sheet No.178 admeasuring 1167 square meters as per city survey records. At no stretch of imagination the pecuniary jurisdiction could be just Rs.1000/- for the additional relief of prayer14A. The plaintiff has to pay court fee on the market value for the said relief. (b) The suit house along with the appurtenant land has market value of over Rs.15 Lacs (Rs. Fifteen Lacs only). This Hon'ble court has, therefore, no jurisdiction to try and entertain the present suit. Unless the value for the purpose of jurisdiction and court fee is decided, the suit cannot proceed.” 13. Further additional written statement dated 6.4.2009, a copy of which is found at annexure M to the petition at page 279, reveals the following relevant pleadings- “(2) With reference to para 11 of the plaint valuing the additional relief of restoration of possession for the purpose of court fee and jurisdiction valued at Rs.75,000/- (Rs. Seventy Five Thousand Only) from original valuation of Rs.1000/-, these defendants respectively state that the said valuation is still undervaluation for 11 the purpose of jurisdiction and court fee. This Hon'ble Court has no pecuniary jurisdiction to try and entertain the suit. These defendants state that they have already filed their written statement and additional written statement further rely on the said pleadings for all legal purpose, in this further additional written statement.” 14. Object of pleadings is to make the rival parties alive to the questions that are about to be argued in order that they may have an opportunity of bringing before the Court such evidence as may be appropriate to the issues. Order 6, R.2 of CPC delineates the structure of the pleadings in the following terms - “ Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.” 15. In this context, it is worthwhile to examine what the petitioners intend to introduce in the pleading by way of the proposed amendment. The application for amendment of written statement after making reference to the order of this court dated 5.8.2009 passed in W.P. No.486/09 expressed desire of the petitioners/ defendants to amend the written 12 statement dated 6.4.2009 with the addition of the following para. Para 3 - That the defendants engaged the services of Engg. Mahendra Kakule (Chartered Engineer, Registered Valuer, Arbitrator) and he has made valuation of the portion of the residential house shown in white, in the lease deed dated 29/01/1982 executed between the plaintiff No.1 and the defendant no.1, appurtenant land, the well which is surveyed under Chalta No.10 of P.T. Sheet No.178 of city survey Margao and has valued the same at Rs.29,76,000/- (Rupees twenty-nine lacks seventy six thousand). The defendants relies and produces the said report. The defendants therefore states that the suit is undervalued for the purpose of court fee and jurisdiction and the relief in the suit is beyond the pecuniary jurisdiction of this Honourable Court. 16. Order dated 05.08.2009 in W.P.486/2009 reveals anxiety of this Court about proper valuation of the suit with the observations that if it was to be discovered on some later stage that the suit was tried without proper valuation and was beyond pecuniary jurisdiction of the Trial Court, the entire exercise would be fruitless. Certainly pecuniary jurisdiction goes to the root and needs to be dealt with at the earlier stage. However, this Court gave liberty to the Trial 13 Court to decide the application for amendment of the written statement on its own merit and according to law. Necessity of making amendment to the written statement, therefore, finds place on the anvil of law. 17. It can be seen from the order dated. 10.09.2008 passed below the application moved by the petitioners/ defendants for directions to the plaintiff to correct valuation of the suit Exh.145/D that the learned Civil Judge was not happy with the valuation of the relief of recovery of possession in the suit at Rs.1000/-. This was due to the fact that the ld. Civil Judge saw reason to think that the market value of the subject matter – portion of the house of which the possession was sought, had been wrongly estimated. Only thereafter, the application for amendment for correcting the valuation of the suit Exh.151 came to be moved in the said suit by the respondents/ plaintiffs. While disposing of this application, the learned Civil Judge rightly rejected lone testimony of the petitioner/ defendant no.1 and observed that the valuer was also not examined. Only in these circumstances, the Trial Court accepted the valuation given by the plaintiffs. Evidently, neither the plaintiffs nor the defendants therein are experts in valuation. Only a proper 14 person holding an expertise in the field of valuation can state as to whether the valuation of the subject matter of the suit is proper or not. 18. Quoting plethora of judgments, the rival parties tried to argue for and against the premise that the party cannot be permitted to reopen the issue of valuation in the present case, indirectly by moving an application in the form of amendment application – application being hit by the principle of rej judicata, and that the proposed amendment, once the plea of undervaluation was raised, is inconsequential. However, it is not necessary to engage with issues raised in all the cases cited when the remedy lies somewhere else. 19. Essentially, the dispute is over the valuation of the subject matter. As observed earlier in absence of any experts view as to the valuation of the subject matter, the Court had to accept the valuation given by the plaintiffs. However, the learned Civil Judge completely overlooked the provisions of the Court Fees Act, 1870 in that regard, perhaps due to the arguments not touching the said provisions. Section 9 of the Court Fees Act, 1870 gives 15 discretion to the Court to order investigation for the purpose of computing the fee payable in any suit in following terms : “Section 9 – Power to ascertain net profits or market value – If the Court sees reason to think that the annual net profits or the market-value of any such land, house or garden as is mentioned in section 7, paragraphs (v) and (vi), have or has been wrongly estimated, the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other investigation as may be necessary, and to report thereon to the Court.” 20. A glance through the judgment in case of Arjun Sing Versus Mohindra Kumar and others reported in AIR 1964 SC 993 reveals that the Hon'ble Apex Court examined the issue of application of the principle of res judicata to the decisions rendered at successive stages of the same suit or proceeding and held as under : “That the scope of the principle of res judicata is not confined to what is contained in Section 11 but is of more general application. Res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits........ Where the principle of res judicata is 16 invoked in the case of different stages of proceedings in the same suit the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached as well as specific provision made on matters touching such decisions are some of the factors to be considered before the principle is held to be applicable.” 21. In the instant case, it can be seen that the Trial Court merely accepted the valuation given by the plaintiffs without determining the market value of the subject matter despite the fact that it had seen reason to think that such valuation had been wrongly estimated. The learned Civil Judge, if one looks to Section 9 of the Court Fees Act, 1870, was not powerless in the matter of correct estimation of the market value of the subject matter. Correct estimation of the value of the subject matter of the suit would have resulted in the decision on the question as to the valuation as envisaged under Court Fees Act, 1870 and for that purpose ascertaining of the market value of the subject matter could have been done by the learned Civil Judge by issuing the commission to any proper person for local or other investigation in that regard. Controversy as regards the valuation had, therefore, not ended finally before the learned Civil Judge. In this view of the matter, there can be no application of principle of res 17 judicata to the issue as regards the correct valuation of the subject matter of the said suit. 22. Was it necessary, therefore, to incorporate the amendment to the written statement as suggested is question which begs an answer from this Court. It can be seen from the aforesaid discussion that the estimation of the correct market value of the subject matter of the suit would resolve the controversy and answer issue connected with the jurisdiction of the Court. Order VI, Rule 2 of CPC defines what is required of the pleadings in the suit. It only requires expression of material facts in a concise form and not the evidence by which they are sought to be proved. If one looks to the proposed amendment, it would be clear that substantially it talks about the evidence suggesting the valuation. Issue of undervaluation and consequent challenge to the pecuniary jurisdiction of the Court is adequately expressed through the previous pleadings on record. There is, thus, no necessity of carrying out the amendment as proposed. 23. No gross error resulting in grave injustice is, therefore, occasioned as a result of the impugned order. The writ petition must, therefore, fail. However, liberty is granted 18 to the parties to move the Trial Court for issuance of Commission to a proper person for the purposes of investigating into the correct valuation of the subject matter of the suit as per Section 9 of the Court Fees Act, 1870, if they or any of them so desire at the earliest opportunity. Liberty to the Trial Court to deal with any such application in accordance with law. Rule is discharged with no order as to costs. U. D. SALVI, J. SMA