SRJ 1 wp-10551-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.10551 OF 2009 M/s. B.Y. Construction Pvt.,Ltd., through its Director Shri Yuvraj S. chumbalkar .. Petitioner. V/s. Shri Ashok R. Pawar & Others .. Respondents. Mr. R.S. Alange, for Petitioner. Mr. A.A. Valsangkar i/b. Pankaj Das, for Respondent No.1. Mr. A.S. Kulkarni, for Respondent Nos. 2 and 3. CORAM :A.S.OKA,J. DATE :12th APRIL,2010 P.C.:- 1] Notice for final disposal at the stage of admission was issued on 4th January, 2010. Heard learned 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. The Petitioner filed a suit simplicitor for injunction restraining Respondents from developing the suit property. An application for amendment was made for the purpose of incorporating a challenge to the alleged agreement SRJ 2 wp-10551-09.sxw 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:- 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. 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. 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. SRJ 3 wp-10551-09.sxw 2] The learned Counsel appearing for the 1st 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 purpose of Court Fees and jurisdiction was already raised by the 2nd and 3rd Respondents in their Written Statement. 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 Counsel appearing for the 1st Respondent. 3] After having heard the learned counsel appearing for the parties and after perusal of the impugned order, I 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 to seek relief of specific performance and if the same is 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 SRJ 4 wp-10551-09.sxw 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. 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 amendment of plaint in accordance with the law. 5] Hence, I pass following order:- (i) The impugned judgment and order dated 19th September, 2009 is quashed and set aside; SRJ 5 wp-10551-09.sxw (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; (iii) All the contentions of the parties on merits of the application at Exhibit 34 are expressly kept open; (iv) Writ Petition is partly allowed in the above terms. (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. (A.S.OKA,J.)