Rajesh Kumar Choudhari vs Darshan Singh Sardar and Another

T.P. Sharma, J.—By this writ petition under Article 227 of the Constitution of India, the petitioner has challenged legality and propriety of the order dated 20-7-2010 passed by the 1st Civil Judge Class- II, Jagdalpur in Civil Suit No.55A/2007, whereby the application for amendment filed under Order 6 Rule 17 of the CPC on behalf of the petitioner herein for alternate relief has been dismissed by the said Court. I have heard learned counsel for the parties, perused the order impugned, copy of the plaint, copy of the application filed under Order 2 Rule 2(3) of the CPC and copy of the application filed under Order 6 Rule 17 of the CPC.

Learned counsel for the petitioner submits that initially suit claiming following reliefs has been filed on behalf of the petitioner herein, on the basis of agreement to sale dated 8-6-2007: -

Thereafter, by filing application under Order 2 Rule 2 (3) of the CPC, the petitioner, has prayed for grant of permission to claim relief relating to return of advance by separate suit which has been dismissed and, thereafter, the aforesaid application for amendment has been on behalf of the plaintiff! petitioner.

On the other hand, learned Senior Advocate appearing on behalf of respondent No.2 opposes the petition and submits that the application for amendment filed on behalf of the petitioners is time barred and the said application has been filed after commencement of trial. The plaint reveals that it has been drafted cleverly and the plaintiff has tried to avoid payment of court fees, but after dismissal of application filed under Order 2 Rule 2 (3) of the CPC the plaintiff has filed the aforesaid amendment application in which he has proposed the amendment for return of advance of Rs. 1,35,000/-with 9% interest.

Virtually, substantially, the suit was filed on the basis of agreement to sale for specific performance on step by step basis and the plaintiff has drafted the plaint cleverly to avoid payment of court fees, may also to void the jurisdiction of superior courts. However, in accordance with proviso to sub-section (2) of Section 22 of the Specific Relief Act, 1963, the plaintiff is entitled to claim such relief and is also entitled to amend his plaint at any stage of the proceeding. The aforesaid entitlement of the plaintiff is not covered by the amendment in the CPC under Order 6 Rule 17 of the CPC. But considering the cleverness of the plaintiff, the petition is allowed and the aforesaid order dated 20-7-2010 passed by the 1st Civil Judge Class-II, Jagdalpur in Civil Suit No.55A/2007 is quashed subject to payment of Rs.3,000/- to the respondents within fifteen days from today before the trial Court. It appears from the alleged amendment that if the amendment application is allowed, the court will cease its pecuniary jurisdiction. Therefore, the petitioner is directed to file fresh amendment application within twenty days from today along with requisite court fees before the trial Court. The respondents are at liberty to contest such application on the ground of limitation, in case the court finds that the alleged relief claimed and valuation made by the plaintiff would not be within the pecuniary jurisdiction of the court, then the court shall submit record along with amendment application and court fees paid before the District Judge for appropriate order/transfer of the suit to the court having territorial & pecuniary jurisdiction to try the suit in accordance with Section 15(3) of the Chhattisgarh Civil Courts Act, 1958.