Petitioners \ Manohar Singh Rathore S/o Late Shri {éPLsHAN gmqa , Aged about 57 Yash Rathore, S/o Shri Manohar Singh Rathore, Aged about 27 years, Resgondents t” I years rKu.Shrish Rathore, D/o Shri 24 Manohar years Singh Rathore, Aged about All are R/o Frezarpur, Near Atithi Hotel, Jagdalpur, Distt‘ Bastar Versus (co) Distt. Khurana, Bastar~(C.G.) R/O Lalbagh, Jagdalpur, State of Chhattisgarh, Thro ugh ~ Callector, Bastar Jagdalpur~-(C.G.) THE CONSTITUTION OF INDIA %Km Fx M/s Vyom Sheet Grih Viilage — Kangoli, Tahsil Jagdalpur, Distt. Bastar HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (227) Nos. 3713 of2008 & 3715 of2008 Manohar Singh Rathore & Others Vs. Post ofpronouncement ofjudgment and orders ona/07/2009. Sd/— N.K. Arawal e g Judg M/s Vyom Sheet Grih Pvt. Ltd. & Another N HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (227) No. 3713 of2008 Petitioners : 1. Manohar Singh Rathore S/o late Shri Kishan Singh, aged about 57 years, 2. Yash Rathore, S/o Shri Manohar Singh Rathore, Aged about 27 years, 3. Ku. Shrish Rathore, D/o Shri Mahohar Singh Rathore, aged about 24 years, All are R/o Frezarpur, Near Atithi Hotel, Jagdalpur, Distt. Bastar (CG). Versus . M/s Vyom Sheet Grih Pvt. Ltd., village Kangoli, Tahsil Jagdalpur, Distt. Bastar Through : Director Vijay Pal Khurana, S/o Shri Keshav Lal Khurana, R/o Lalbagh, Jagdalpur, Distt. Bastar (CG). 2. State of Chhattisgarh, through Collector, Bastar, Jagdalpur (CG). Respondents W.P, (227) N0. 3715 of 2008 Petitioners . Manohar Singh Rathore S/o late Shri Kishan Singh, aged about 57 years, 2. 'Yash Rathore, S/o Shri Manohar Singh Rathore, Aged about 27 years, 3. Ku.’Shrish Rathore, D/o Shri Mahohar Singh Rathore, aged about 24 years, All are R/o Frezarpur, Near Atithi Hotel, Jagdalpur, Distt. Bastar (CG). Versus . M/s Vyom Sheet Grih Pvt. Ltd., village Kangoli, Tahsil Jagdalpur, Distt. Bastar Through : Director Vijay Pal Khurana, S/o Shri Keshav Lal Khurana, R/o Lalbagh, Jagdalpur, Distt. Bastar (CG). 2. State of Chhattisgarh, through“ Collector, Bastar, Jagdalpur (CG). Respondents Writ Petition under Article 227 of the Constitution of India LS_ingle Bench: Hon'ble Mr. N.K. AgarwaL J.) Shri Prafull Bharat with Shri Santosh Bharat, Advocates for the petitioners. Present : Shri Vishnu Kosta, Advocate for the respondent No. 1. Ms. Sangeeta Mishra, Panel Lawyer for the State. ORDER (Passed on 2a day of July, 2009) Since both the petitions i.e. W.P.(227) Nos. 3713/08 & 3715/08 involve common question of law, arising out of the same order, therefore both petitions are being disposed of by this common order. The instant petition is directed against the order dated 05.04.2008 (Annexure P/8), passed by the First Additional District Judge, Jagdalpur (CG), in civil suit No. 6A/08, whereby and whereunder, the application filed by the plaintiff (respondent herein), under Order 6 Rule 17 of CPC for amendment in the plaint was allowed. The brief facts of the case are that, the respondent filed a suit for declaration of title, permanent injunction and damages against the petitioners before the Civil Judge, Class II, Jagdalpur, on the ground that the parties have entered into an agreement on 21.07.2003 to sale the suit property situated at village Kangoli, bearing Khasra No. 121/39 area 0.50 acre. It is submitted that the respondent has paid the total sale consideration of Rs. 62,500/— and also the possession of'suit land was handed over to them. The petitioner has not complied the terms and conditions of agreement to sale, and therefore, the respondent has filed a civil suit before the Civil Judge, Class IL Jagdalpur, seeking declaration of title and permanent injunction and damages. On 28.06.06,’the respondent moved an application for amendment in the plaint. The petitioner filed its reply on 21.07.2006 ,(AnExure 'x P/3), opposing the proposed amendment. The Civil Judge, Class II, Jagdalpur, Vide order dated 03.08.2006 (Annexure P/4), relying upon the submission of defendant No. 1, which was based upon the judgment of P‘andit Rudra Nath Mishir & Other v. Pandit Sheo Shankar Missir & Others (AIR 1983 Patna 53), dismissed the application for amendment and the plaint was returned for presentation to the proper court. Thereafter, the respondent flled the plaint which was returned by the Civil Judge, Class II, before the Additional District Judge, Jagdalpur. The respondent also moved an application for amendment under Order 6 Rule 17 of CPC before the Additional District Judge, Jagdalpur, seeking same amendment, to convert the suit into one for Speciflc Performance of Contract. Notice was issued by the court to the petitioner. The petitioner filed the reply of amendment application. The Additional District Judge, Jagdalpur, aner hearing both the parties, allowed the amendment application vide its order dated 0504:2008 (Annexure P/8). Hence this petition. Shri Bharat, learned counsel appearing for the petitioners submits that aner rejection of the application by Civil Judge, no appeal or review was preferred by the respondent before the Civil Judge, and therefore, the order passed by the Civil Judge, rejecting the application for amendment filed by the petitioner attained finality and same cannot be preferred again before the Additional District Judge. He further submits that the amendment which changes the nature of suit, cannot be allowed. In View of proviso to order 6 Rule 17 the court’s jurisdiction to allow such application is taken away after commencement of trial unless the court comes to the conclu§ion that despite of due diligence the party could not have raised giggilng l \c5$ before the commencement of trial, and as in this matter the said amendment was proposed after the commencement of trial before the Civil Judge without showing such cause, and therefore, the amendment ought to have disallowed by the Additional District Judge. He further submits that the trial commences when the issues were framed and the matter was posted for evidence, and the amendment was barred by limitation also. 7. Shri Bharat relied upon the judgments passed in the matters of K. Raheja Construction v. Alliance Ministries & Othersl, M/s Bharat Cooking Coal v. Rajkishore Singhz and Alka Puri Co-operative Housing Society v. Jyanti Bai Nagin Bai3. 8. Per contra, Shri Kosta supported the order passed by the Additional District Judge, and submits that the trial court has not committed any illegality or irregularity by allowing the amendment application. The order is well reasoned order. In support of his contention, Shri Kosta relied upon the judgments passed in the matters of Pandit Rudra Nath Mishir & Other v. Pandit Sheo Shankar Missir & Others4, Krishna Kumar Khandelwal v. Mangal PrasadS, Ragu Thilak D. John V. S. Rayappan & Other6, Pankaja & Another v. Yellappa (D) by L.Rs. & Others7, Rajkumar v. Dipender Kaur Sethis, South Konken Distilleries and Another v. Prabhakar Gajanan Naik & Others9 & Mariambai 'V. State of M.P.1°. 1 AIR 1995 SC 1768 2 AIR 2000 SC 3577 (1)‘ ‘ . , 3 2009 (3) scc 467 4 AIR 1983 Patna 53 5 AIR 2006 MP 227 6 AIR 2001 sc 699 7 AIR 2004 scu/ (4) 4522 8 9 AIR 2005 sc 1592 AIR 2009 sc 1177 '° 1998 (2) MP Weekly Notes s9 9. I have heard leamed counsel appearing for the parties, perused the pleadings and records. In this petition, the following questions arises for decision making: . Whether the effect of amendment would entail in ouster of the jurisdiction of the coun, which it originaliy had, the proper course would be to allow the amendment and then retum the amended plaint for presentation before the proper court, or whether to retum the plaint alongwith amendment application before the proper court and thereafter the proper court would decide the amendment in accordance with law. What is the effect of retum of plaint in terms of Order 7 Rule 10 & 10A of CPC. ii. 10. The Patna High Court in matter of Pandit Rudra Nath Mishir (Supra) while dealing with Order 7 Rule 10 and Order 6 Rule 17 of CPC observed in para 4 as under : “4 ......... I..The granting of an amendment postulates an authority of the court to entertain the suit. But where there is inherent lack of jurisdiction in the court t0 entertain the suit itself, it cannot make any order for amendment of the plaint to bring the suit within its jurisdiction. In such a case the court would be exercising its jurisdiction which is ch not vested in it and, therefore, passing of any order would amount to usurping a jurisdiction not vested in it. In such a case the court is bound to return the plaint to be represented to the proper court in which the suit ought to have been instituted. After the plaint is returned for presentation to the proper court, the plaintiff can r amend the plaint and represent it to the same Court. The question of abandoning a part of the claim in a} case where the valuation of the suit if beyond the pecuniary jurisdiction of a court, however, i stands ?A ’7 f ‘ 1%" on a different footing. In such a case no amendment of the plaint is necessary inasmuch as it is always open to the plaintiff at any stage of the suit to abandon any part of its claim so as to bring it within the pecuniary jurisdiction of the court.” ll. This judgment was cited by the petitioner herein before the Civil Judge, and based on this, the plaint has been returned by the Civil Judge for presentation to proper court atter rejecting the amendment application holding that the Civil Judge has no jurisdiction t0 allow that amendment. As per Single Bench of Patna High Court in the said judgment after the plaint is returned for presentation to the. proper court, the plaintiff can amend the plaint and: can file the same to the l3. court. 12. The Nagpur High Court in case of Lalji Ranchhoddas v. Narottam Ranchhoddas reported in AIR 1953 Nagpur 273, had ruled as under : “When the court is faced with the question of allowing an amendment which taken together with the original claim exceeds its pecuniary jurisdiction, it should return the plaint together with the application for amendment for the consideration of the court having jurisdiction to consider the original claim and the claim sought by the amendment not taken separately but together.” On the contrary, a Division Bench of MP High Court in the matter of Krishna Kumar Khandelwal (Supra), after discussing the various judgments overruling its judgment which were earlier reported in 1967‘ MPLJ (SN) 78, 1976 MPLJ (SN) 5 and 1984 MPLJ (SN) 1, held that the correct position of law is that the effect of amendment which would entail in ouster of the jurisdiction of the court, which it originally had, the proper course would be to allow the amendment I and then return the amended plaint for presentation before the proper court. Similar views have been expressed in cases reported in AIR 1971 Bom. 383, AIR 1959 Raj 146, AIR, 1980 NOC 1 (Madras) and AIR 1973 Guj 283. 14. The controversy can be looked from another angle, namely, while deciding own jurisdiction each court has the authority to deal with jurisdictional fact. Valuation of suit though sought to be brought in by way of amendment is basically an issue relating to fact. When the question of returning of the plaint arises there is a presumption that the court would allow the amendment. It may refuse the prayer. To conceive the idea that it must return the plaint along with amendment would tantamount to denuding the court to exercise his jurisdiction to determine his own jurisdiction. 15. In view of the above, I am in respectful agreement with the views expressed by Division Bench of MP High Court in the matter of Krishna Kumar Khandelwal (Supra), and I hold that the court while dealing with the amendment application, which if allowed would entail in ouster of the jurisdiction of the court, which it originally had, the proper course would be to allow the amendment and then return the amended plaint for presentation before the proper court. The second question arises for determination is what is the effect'of return of plaint in terms of Order 7 Rule 10 & 10A of CPC. The Return of plaint.—(1) [Subject to the provisions of Rule 10-A, the plaint shall] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. [Explanation—For the removal of doubts, it is hereby declared that a court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule] Order 7 Rule 10 & 10A of CPC reads as under : (2) Procedure on returning plaint.——On returning a plaint ll" the Judge shall endorse thereon the date of its presentation and retum, the name of the party presenting it, and a brief i ~ statement of the reasons for‘retuming it. : ‘7: ’ 10-A. Power of Court to fix a date of appearance in the Court where plaint is t0 be filed after its return. (1) Where, in any suit, auer the defendant has appeared, the Court is of o inion that the plaint should be returned, it shall, before oing so, intimate its decision to the plaintiff. (2) Where an intimation is given to the plaintiff under sub rule (1), the plaintiff may make an application to the Court (a) specifying the Court in which he proposes to praying that the Court may flx a date for the (c) requesting that the notice of the date so fixed present the plaint after its return, (l7) appearance of the parties in the said Court, and may be given to him and to the defendant. (3) Where an application is made by the plaintiff under sub-rule (2) the Court shall, before returning the plamt and notwithstanding that the order for retum of plaint was made by it on the ground that it has no jurisdiction to try the suit, (a) fix a date for the appearance of the parties in the Court in which the plaint ’is proposed to be presented, and (b) give to the plaintiff and to the defendant notice of such date for appearance. (4) Where the notice of the date for appearance is given under sub-rule (3), (a) it shall not be necessary for the Court in which the plaint is presented after its retum, to serve the defendant with a summons for appearance 1n the suit unless that Court for reasons to be recorded, otherwise directs, and (b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed b the Court by which the plaint was retume . (5) Where the application made by the plaintiff under sub- rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint. 17. A bare perusal of provision would reveal that the suit which is instituted on the representation of the plaint in the competent court after its retum by the court which lacked the jurisdiction is a freshly instituted suit within the meaning of the provisions of the Code of Civil Procedure and shall be governed by the provision of O. 7. Rr. 10 ' and 10A. v Such a suit will be tried de novo in accordance with the provisions of the Code. Any proceedings taken up and orderimade in the suit during its pendency before the court which lacked necessary i 9 W}? jurisdiction come to an end as soon as the order for the return of the plaint is made by the said court. 18. The Supreme Court in case of Hanamanthappa & Another v. Chandrashekharappa & Others” observed that the object of Order VII, Rule 10-A is that the plaintiff, on retum of the plaint, can either challenge in an appellate forum or represent t0 the court having territorial jurisdiction to entertain the suit. In substances, it is a suit filed afresh subject to the limitation, pecuniary jurisdiction and payment ofthe court fee. 19. In View of the above, it is clear that when the suit has been filed in the competent court of jurisdiction after return of plaint with amendment application or even by filing the amended plaint, then it would be a fresh suit. 20. The Civil Judge, placing reliance upon the case law cited by the petitioner, held that it had no jurisdiction to allow the amendment and returned the plaint. The respondent flled the returned plaint alongwith amendment application before the court of competent jurisdiction which is in fact a fresh suit and it cannot be said that the amendment has been proposed after commencement of trial. 21. In View of the facts circumstances of the case, I also do not find any substance in the submission of Shri Bharat that as the amendment application has already been rejected by the trial court and therefore, it attained finality and amendment application cannot be filed again because the application was dismissed by the Civil Judge by holding that it had no jurisdiction to allow the amendment and returned the plaint, and secondly as held hereinabove before the court of competent , jurisdiction; infact the same is a fresh suit. “ 1997 (9) scc 688 Sahu 10 \®g ti 22. It is well settled principle of law that this Coutt, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. 23. Therefore, in the facts and circumstances of the case, the petitioners utterly failed to demonstrate the illegality or irregularity committed by the trial court so as to invoke the extraordinary jurisdiction of this court under Article 227 ofthe Constitution of India. 24. For the reasons mentioned hereinabove, the petitions stand dismissed. i/ ,VH No order asto costs. l t Sdl- N.K. Agrawal Judge