1 ao822.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 822 of 2010 WITH Civil Application No. 1030 of 2010 IN AO No. 822 of 2010 Mrs. Mebal Domnic D’Souza ....Appellant v/s. Ruhullah Mohammed Bashir Khan & ors. ....Respondents Mr. C.P. Deogirikar i/b. Ms. A.S. Malvankar for the appellant. Mr. A.R.Siddique for the respondents. CORAM: R.M. BORDE, J. 20th December, 2011 PC: Heard Counsel for the parties. Admit. 2. By consent of the parties, the Appeal is taken up for final disposal at the admission stage. 3. The appellant herein is raising exception to the order passed by the learned Judge of the City Civil Court on 15th February, 2010 in S.C. Suit No. 3782/2007 directing return of the plaint to the plaintiff for proper presentation. It is not necessary to got into the factual details of the matter. Suffice it to note that trial Court found prayer clause (c) contained in the plaint to be beyond the pecuniary jurisdiction of the trial Court. Prayer clause (c) contained in the plaint reads thus: 2 ao822.10.sxw “That it be declared that agreement entered into between defendant no.4 and defendant no. 1 on 16th December, 1995 and agreement entered into between the defendant 1 and defendant no. 2 and 3 dated 3rd October, 2000 are null and void, illegal, bad in law and not binding on the plaintiff.” 4. The trial Court has held that prayer quoted above requires computation of Court fees in accordance with provisions of Section 6(iv) (ha) of the Bombay Court Fees Act. The valuation as noted in the document i.e. the agreement entered into between defendants 1 and defendant no. 2 and 3 and defendant no. 4 and defendant no.1 is beyond pecuniary limits of jurisdiction of the City Civil Court. As such the trial Court has directed return of the plaint. 5. The Counsel appearing for appellant on instructions from his client states that his client wishes to relinquish claim contained in prayer clause (c). If a claim contained in prayer clause (c) is permitted to be relinquished, the suit will fall within the pecuniary jurisdiction of the trial Court and Court fee paid by the plaintiff shall be deemed to be proper. The Counsel appearing for the respondent has opposed the prayer contending that once the suit is filed and if it is beyond the pecuniary limits of the trial Court, it would not be permissible for the same Court to permit an amendment seeking deletion of prayers. 6. Reliance is placed on the judgment in the matter of Nizar Sadaruddin Khoja v/s. Vaibhav Construction & ors. (1997) 2 GLR 1521. In para 12 of the Judgment the learned Judge of the Gujarat High Court cited a judgment in the matter of Shobha v/s. Mahale of the Bombay High Court wherein view is taken by the Bombay High Court that relinquishment of claim is permissible under Order 23 Rule 1 and one need not refer to Order 2 of Rule 2 of Code of Civil Procedure. Even a statement before the Court in respect of relinquishment of 3 ao822.10.sxw prayer or part of the claim is sufficient to attract provisions of Order 23 Rule 1 and no formal amendment of the pleadings is necessary. Para 12 of the Judgment of the Gujarat High Court reads thus: 12. Mr. Jani for the petitioner has relied upon the judgment of Bombay High Court in the case of Shobha v. Mahale,. wherein it is held that Order 2 Rule 2 of the Code is not the only provision in the Code for voluntary relinquishment of claims or parts of claims but can also be relinquished at any stage of the suit under Order 23 Rule 1 of the Code and by invoking the provisions of Order 23 Rule 1 and abandoning a part of claim the Court be invested with pecuniary jurisdiction. For doing so even a statement is sufficient and amendment of plaint is not necessary. It is true that after institution of suit the plaintiff may as against all or any one of the respondents abandon his suit or abandon a part of claim. By making this provision the intention of the legislature is very clear that the plaintiff can abandon a part of his claim at any stage of suit after institution but nontheless contemplates divesting or investing with jurisdiction which otherwise does not have. The moment the suit is filed the plaintiff requires the Court to decide the entire claim arising from the cause of action but if during pendency the plaintiff for some reasons desires to abandon a part of claim, may abandon his claim and by doing so requests the Court not to decide that part of the claim as he does not press against the defendant. Such an abandonment does not relate back to the date of institution and affect the jurisdiction. By abandonment under Order 23 Rule 1 the institution of suit remains unaffected, that is, the jurisdiction of the Court to try the claim as a whole does not get vitiated but simpliciter the Court is requested not to apply mind to that particular part of claim which is sought to be abandoned under Order 23 Rule 1 of the Code. In this view of facts, I do not agree with the view subscribed by Bombay High Court in Shobha's case (supra). 7. It would be necessary to refer to the judgment of Sbhobha Venkatesh v/s. K.R.Mahale AIR 1969 Bombay 370. The judgment of this Court would have binding effect unless the Bench of equal strength takes a different view of the matter. I respectfully agree with view taken by the Bombay High Court. In para 6 of the judgment it is recorded thus: “6. Order 23, Rule 1 (1), Civil P.C. provides that any any time 4 ao822.10.sxw after the institution of a suit, the plaintiff may abandon a part of his claim. The plaintiff was, therefore, within her right to abandon a party of her claim. This did not require any amendment of the plaint or any permission of the Court. She could have done so voluntarily by a unilateral act of herself. She could have made a statement to the Court and the Court would normally record the statement and proceed to try the suit with regard to the remaining part of the claim. The draft amendment should actually have been treated as such statement. Unfortunately the provisions of Order 23, Rule 1(1) Civil P.C. do not appear to have occurred to the plaintiff’s Advocate and in fairness to the learned Judge I must say that they were not pointed out to him.” 8. Reliance is also placed on the judgment in the matter of K.S. Bhoopathy & ors. v/s. Kokila & ors. (2000) 5 SCC page 458. In para 12 of the judgment the Apex Court has observed thus:- “12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts; (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the Court, in that case he will be precluded from suing again on the same cause of action. Neither the plaintiff can abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the Court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the Court enables me plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.” 9. Sofar as the plaintiff in the instant matter is concerned, he is claiming abandonment of claim in prayer clause (c) contained in the plaint which would come within the purview of provisions of Order 23 Rule 1 (i) and the plaintiff can abandon a suit or part of his claim as a matter of right without permission of the Court. The plaintiff is neither seeking any liberty nor is claiming to reserve his right to bring a fresh suit on the same cause of action. The plaintiff is simplicitor claiming abandonment of part of claim which as a matter of right 5 ao822.10.sxw he is entitled. The plaintiff, therefore, can be permitted to abandon the part of the claim i.e. prayer (c) in the plaint so as to bring a suit within the purview of jurisdiction of the City Civil Court. The plaintiff is, therefore, granted leave to abandon the part of the claim i.e. prayer clause (c) so as to bring the suit within the pecuniary limits of the City Civil Court. In view of leave granted to abandon the part of the claim, the impugned order passed by the Judge of the City Civil Court is quashed and set aside. 10. Appeal from Order is thus accordingly allowed. The learned Judge of the City Civil Court shall proceed to decide the matter in accordance with provisions of law. No costs. (R.M.BORDE, J)