TaxTMI 
TaxTMI 
2016 (9) TMI 1613
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....cially the last line of para 7 of Mahesh Gupta's case (supra). In my respectful opinion, the larger Bench may also decide the issue as to whether a court which does not have pecuniary jurisdiction to entertain the suit, such court can entertain an application to amend the plaint to bring the suit plaint within the pecuniary jurisdiction of the court. 7. After obtaining the appropriate orders of Hon'ble the Chief Justice, list the matter before the larger Bench for consideration of the issue in question on 26th May, 2016. 8. I note that on the decision by the larger bench as to whether this Court cannot or can entertain and allow the IA No. 3857/2016 filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908 for enhancement of pecuniary jurisdiction, the application of the defendant No. 2 in IA No. 3856/2016 would also stand decided and which is for transfer of the suit to the transferee court having pecuniary jurisdiction." The reference to Mahesh Gupta's case is to Mahesh Gupta v. Ranjit Singh AIR 2010 Delhi 4 (DB) and the reference to Kamal Sharma's case is to Kamal Sharma v. Blue Coast Infrastructure Development Pvt. L....
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....Court. Vide order dated 23rd February, 2014 in IA No. 1261/2012 in CS(OS) No. 3241/2011, on the no objection of the plaintiff herein, the two suits were consolidated for the purposes of trial and decision. 7. However, vide the Delhi High Court (Amendment) Act, 2015 (Amendment Act) which came into force on 26th October, 2015 the words "rupees twenty lacs" in Section 5(2) of the HC Act were substituted with the word "rupees two crores", thereby providing for ordinary original civil jurisdiction of this Court in suits the value whereof exceeded Rs. 2 crores. Thus, w.e.f. 26th October, 2015, filing/institution in this Court of suits, valuation whereof was upto Rs. 2 crores stopped. With respect to the pending suits, Section 4 of the Amendment Act provided as under: "4. The Chief Justice of the High Court of Delhi may transfer any suit or other proceedings which is or are pending in the High Court immediately before the commencement of this Act to such subordinate court in the National Capital Territory of Delhi as would have jurisdiction to entertain such suit or proceedings had such suit or proceedings been instituted or filed for the first time after such commencement." ....
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....dment of the plaint pleading that it had come to her knowledge that the value of the subject property was in fact higher than that reflected in the plaint as filed and particularly when the value of the plaintiff's half of the terrace above second floor of the property had increased substantially over the past few years due to an increase in the market rates in the locality where the property is situated and in the light thereof, she was seeking to amend the plaint to enhance the valuation of the relief of declaration qua the terrace from that earlier pleaded of Rs. 8,15,000/- to Rs. 1,70,00,000/- and thereby increasing the total valuation of the suit for the purposes of jurisdiction to Rs. 2,00,80,530/- and undertaking to pay the deficient court fees. 12. The defendant No. 2 on the other hand, filed IA No. 3856/2016 supra for transfer of this suit, in accordance with the Office Order supra, to Subordinate Court. 13. Both applications came up before the learned Joint Registrar on 23rd March, 2016 when they were ordered to be placed before the Hon'ble Judge and on which date the order leading to constitution of this Bench, as aforesaid was passed. 14. We now proceed....
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.... "(A) Section 15 of the Code of Civil Procedure, 1908 (CPC) requires the suit to be instituted in the Court of the lowest grade competent to try. (B) The Court of lowest grade competent to try the suit, the valuation whereof for the purposes of jurisdiction as per the plaint was in excess of Rs. 20 lakhs, till coming into force of the Amendment Act on 26th October, 2015, was the High Court of Delhi. (C) It is the settled principle of law that certain rights accrue on the date of institution of a legal proceeding and which cannot be prejudicially affected subsequently. Supreme Court recently in Manager, VKNM Vocational Higher Secondary School v. State of Kerala (2016) 4 SCC 216 summarised the principle by observing that for the legal pursuit of a remedy it must be shown that the various stages of such remedy are formed into a chain or rather as series of it, which are connected by an intrinsic unity which can be called as one proceeding, that such vested right, if any, should have its origin in a proceeding which was instituted on such right having been crystallized at the time of its origin itself, in which event all future claims on that basis to be p....
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....stantive right. A right of appeal has been held to be a substantive right which accrues on the date of institution of legal proceedings. It is settled principle of law that a party to a suit who is dissatisfied with a judgment passed in civil proceedings has a right of appeal which had accrued to him on the date of institution of the suit or proceeding in the Court of first instance, according to the law then in force and it is immaterial whether the judgment is passed before or after the change in law. The right to go from Court to Court in appeal is the right which vests at the date of institution of the proceedings in the Court of the first instance. As far back as in Mohd. Idris v. Sat Narain AIR 1966 SC 1499 a bench of five Judges, finding the application under Section 12 of the U.P. Agriculturist Relief Act for redemption of a mortgage to have been filed before the Munsif, Allahabad to have been filed before the repeal thereof by amendment to the U.P. Zamindari Abolition and Land Reforms Act, 1950 and further finding that the repealing provision did not state whether the repeal was to be operative retrospectively or not and relying on Section 6 of the U.P. General Clauses Act....
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...., all suits of the value of Rs. 5 lakhs and below would have stood transferred to the District Court from the date of enforcement of Amendment Act and this court would cease to have jurisdiction to try any of such suits - this is clear from the language of Section 5(2) of the High Court Act as after the amendment thereof High Court would have ordinary original jurisdiction in civil suits of the value exceeding 5 lakhs; ii) this ordinary original jurisdiction had been conferred on the High Court by the High Court Act and that jurisdiction, by the Amendment Act, had been limited to the cases of value exceeding Rs. 5 lakhs; iii) Section 4 prevents this result flowing from the amendment of Section 5(2) and allows retaining of suits of the value of below Rs. 5 lakhs pending in this Court; iv) this is clear from last line of Section 4 of Amendment Act which provides that when cases are so transferred to subordinate Court, those courts shall entertain those suits as if they had been instituted for the first time before them after the commencement of the Amendment Act; v) then, an appeal from a decree or order of subordinate court shall lie to a forum as provided in Section 39 of the Punja....
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....r Courts being flooded or overcrowded with suits triable by Courts of inferior grade and it merely regulates procedure and not jurisdiction. It was further held that a Court of superior grade does not act without jurisdiction in trying a suit which under Section 15 might and ought, by reason of its valuation, to have been tried by an inferior Court. A Full Bench of the High Court of Andhra Pradesh also in Kesavarapu Venkateswarlu v. Sardharala Satyanarayana AIR 1957 Andhra Pradesh 49 held that Section 15 CPC lays down a rule of procedure and not of jurisdiction of the superior Court. This Court also in Taran Jeet Kaur v. G.S. Bhatia 2009 (108) DRJ 89 has taken the same view. K. This Court, in our view, by virtue of Section 5(2) of the High Court Act, is in the hierarchy of pecuniary jurisdiction and the jurisdiction of this Court under Section 5(2) is not to be understood differently. We may in this regard refer to Bakshi Lochan Singh v. Jathedar Santokh Singh AIR 1971 Delhi 277 where the contention before the Division Bench of this Court was that the jurisdiction under Section 5(2) did not make this Court the "Principal Civil Court of Original Jurisdiction" for Delhi with....
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....ached on a consideration of the evidence cannot possibly be said to have been caused by valuation. Mere errors in the conclusions on the point for determination were held to be not amounting to prejudice. Giving instances of prejudice, it was observed that if there is no proper hearing that had resulted in injustice or if the procedure followed in that Court is different or the right of appeal arising therefrom is different, can a case for prejudice be made out. (M) The law thus makes a distinction between a case of lack of inherent jurisdiction and a case of lack of pecuniary jurisdiction. While a decree passed by the Court lacking pecuniary jurisdiction does not automatically become void; at the most becomes voidable in the sense that it can be appealed on limited grounds, a decree passed by a Court with lack of inherent jurisdiction becomes null and void in law and its validity can be set up whenever it is sought to be enforced or relied upon, even at the stage of execution or even in collateral proceedings. (N) The Division Bench of this Court in Mahesh Gupta supra, in holding that an application for amendment of a plaint to enhance valuation for the purposes ....
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....he suit, it cannot be retained in the High Court for it cannot be deemed that it was ripe and ready for trial. It was further held that cases where inspite of issues having been framed there may have been a development of events which may render previously framed issues redundant, were also not exempted. (Q) Reference may also be made to the judgment of the Division Bench of the High Court of Himachal Pradesh in Subhash Chand Goel v. Union of India in the context of the Himachal Pradesh Courts (Amendment) Act, 1994 enhancing the minimum pecuniary jurisdiction of the Court of the District Judge in original civil suits from earlier existing of Rs. 2 lakhs to Rs. 5 lakhs and that of Subordinate Courts from earlier existing of Rs. 60,000/- to Rs. 2 lakhs and the Office Order issued by the Chief Justice in pursuance thereto. It was held that the Amendment Act did not provide that the amendments brought into force were retrospective in operation or that they were applicable to pending proceeding but rather conferred power on the Chief Justice to transfer any suit, appeal or proceeding which were pending before the High Court immediately before the commencement of the Amendment A....
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....is Court in Geetika Panwar and Delhi High Court Bar Association v. GNCTD (2002) 99 DLT 840 held the same, in so far as amending Section 5(2) as ultra vires the Legislative Assembly of Delhi. However since in the interregnum suits of the valuation of upto Rs. 20 lakhs had been filed in and entertained by the District Court, it was ordered that they will remain valid and stand transferred to this court. In appeals preferred to Supreme Court, vide interim order, such transfer was stayed. Before the appeals could be decided, the minimum pecuniary jurisdiction of this Court was enhanced from over Rs. 5 lakhs to over Rs. 20 lakhs vide Delhi High Court Amendment Act, 2003 of the Parliament. It was the contention in Jagdish Prasad Sharma supra that the decree of the District Court in the suit for over Rs. 5 lakhs passed while the appeals were pending in Supreme Court and before the Delhi High Court Amendment Act, 2003, being beyond its pecuniary jurisdiction, was non est. The said argument was rejected. It would thus be seen that the decree in a suit beyond the maximum pecuniary jurisdiction of the District Court also was not interfered with. (U) It is also significant that Sectio....
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....o this Court after the amendment of the plaint, enhancing the valuation to beyond that of which the District Judge had pecuniary jurisdiction. The petition was opposed on the ground that the only course open to the District Judge after allowing the amendment enhancing the pecuniary jurisdiction was to return the plaint to be filed in the Court of appropriate pecuniary jurisdiction and in exercise of powers under Section 24 of the CPC, only such a suit could be transferred to this Court which was on the date of the petition under Section 24 of the CPC within the jurisdiction of the District Judge. The reason for applying under Section 24 of the CPC was to enable the entire file of the suit containing the proceedings held till then to be transferred this Court, rather than only the plaint being returned. It was held that both Section 24 as well as Order VII Rule 10 of CPC fall in the domain of procedural law and the intent of procedural law always is to achieve the comments of justice and not to frustrate the same or to throttle the progress of the proceedings in a manner which would be prejudicial to the very administration of justice and expeditious disposal of the suits. It was he....
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....edies available, the principle of dominus litis has clear application and that there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril bring a suit of one's choice and it is no answer to a suit that the law confers no such right to sue; a suit for its maintainability requires no authority of law and it is enough that no statute bars it. It was further held that the plaintiff as dominus litis is the master of and has dominion over the case and is the person who has carriage and control of an action and in whom in case of conflict of jurisdiction, the choice of forum lies, unless there be a rule of law excluding access to a forum of the plaintiff's choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law. In the same vein in Lakha Ram Sharma supra in the context of an application for amendment of plaint enhancing the valuation of the suit from Rs. 1 lakh to Rs. 10 lakhs in the wake of an earlier change in minimum pecuniary jurisdiction of this Court, it was held that merely because an amendment may take the suit out of the juris....
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....in a suit, which on the date of its institution was properly instituted, for enhancement of valuation for the purposes of jurisdiction, does not lay down the correct law and hold that this Court inspite of Amendment Act and the Office Order dated 24th November, 2015 supra can entertain an application to amend the plaint to bring the suit within the pecuniary jurisdiction of this Court." 20. List IA No. 3857/2016 of the plaintiff for amendment of the plaint and IA No. 3856/2016 of the defendant No. 2 for transfer of the suit before the learned Single Judge, as per the date specified in the Final Order. Sd/- R.K. Gauba, J. (JUDGE) R.K.GAUBA, J : 21. Before putting my thoughts on paper, I have had the benefit of going through the draft of the order penned by brother Justice Rajiv Sahai Endlaw, the opinion expressed wherein is in consonance with the views of brother Justice Sanjiv Khanna that have since been shared. Though the reasoning in the said draft orders seem to be persuasive, I am unable to subscribe to the conclusions reached and, therefore, respectfully expressing my dissent through this separate order.....
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....d 09.06.1995 with M/s. Gandhi Architects Pvt. Ltd. (third defendant). It is stated in the plaint that the said third defendant, M/s. Gandhi Architects Pvt. Ltd. (also referred to as "the builder") was a family concern of, and managed by, S.K. Gandhi (original first defendant, since deceased) and his wife Geeta Gandhi (second defendant). It is stated that in terms of the collaboration agreement, the builder was to re-develop the property, inter alia, by constructing two additional floors and, by way of his consideration, was to receive the title to the entire second floor with front half terrace above the second floor besides right side driveway with servant room on the second floor of garage block (described in entirety as the "builder's share"). The plaintiff claims to have purchased, alongwith her husband Ashvini Kumar Malik, by two separate registered sale deeds, both dated 31.12.1996, the first floor of the property from its erstwhile owner, Jaswant Singh Uppal. After his demise on 05.02.2000, the right, title and interest in the property of Jaswant Singh Uppal devolved on his wife Pritam Kaur Uppal. It is stated that, by registered gift deed dated 07.09.2001, Pritam Kaur U....
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....he plaintiff is the legal owner and person entitled to possession of the garage on the right side driveway of the Ground Floor portion of the said Property shown in red court boundary in the plan annexed hereto as Annexure-A; (b). Pass a decree of mandatory injunction directing the defendants No. 1 to 3, jointly and severally, to remove their lock from the garage on the right side driveway on the Ground Floor Portion of the said property. (c). Pass a decree of permanent injunction restraining the defendants No. 1 to 3, their servants and agents from interfering in any manner whatsoever with the Plaintiff's rights to unobstructed and peaceful use, occupation and enjoyment of the garage on the right side driveway of the Ground Floor portion of the said property; (d). Pass a decree of declaration declaring the plaintiff to be entitled to the area on the terrace above the second floor in the said property that has been encroached upon by the defendants and that is required to make up the plaintiff's entitlement on the said terrace to be half of the total terrace, without taking into account any extra area made available upon coverage of the balcony on....
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....f permanent injunction restraining the Defendants No. 1 to 3 from interfering in any manner whatsoever with the plaintiff's right of unobstructed and unhindered enjoyment of the garage on the right side driveway of the Ground floor portion, the suit is valued at Rs. 130/- and ad valorem court fee of Rs. 13/- has been paid. d). For the relief of declaration declaring the plaintiff to be entitled to the area on the terrace above the second floor in the said property that has been encroached upon by the Defendants and that is required to make up the area of the plaintiff on the said terrace to be half of the total terrace, without taking into account any extra area made available upon coverage of the balcony on the rear side of the second floor on the said property, and for possession of plaintiff's share in the said terrace as may be found to be in possession of the defendants, or either of them, the suit is valued at Rs. 8,15,000/-, being the market value of the area of 163 sq. ft. approx. encroached upon by the defendants and ad valorem court fee of Rs. 10,300/- has been paid. The plaintiff undertakes to pay deficit, if any, in the court fee upon the actual measure....
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....(IA 1261/2012) had been moved by the plaintiff of the other case (Geeta Gandhi) seeking consolidation of both the suits. The plaintiff of the present case Subhashini Malik gave her no objection to the said prayer and taking note of the same, by a common order passed on the files of both the cases on 25.02.2014, the single bench directed both the suits to be consolidated 'for the purposes of trial and decision'. 32. When the suit at hand [CS(OS) 1416/2009], and the suit that was clubbed [CS(OS) 3241/2011], were filed in this court, the relevant provision of Delhi High Court Act, 1966 (Act 26 of 1966) read as under: "5. Jurisdiction of High Court of Delhi (1) The High Court of Delhi shall have, in respect of territories for the time being included in the Union territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exerciseable in respect of the said territories by the High Court of Punjab. (2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civi....
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....ed by Section 4 of Delhi High Court (Amendment) Act, 2015, Hon'ble the Chief Justice issued an office order on 24.11.2015 which reads as under: "Notification No. 27187/DHC/Orgl. Dated 24.11.2015 In exercise of powers conferred by Section 4 of the Delhi High Court (Amendment) Act, 2015 (Act 23 of 2015), which came into force with effect from 26.10.2015 vide notification No. F. No. L-19015/04/2012-Jus dated 26.10.2015 issued by the Government of India, Ministry of Law, Justice and Company Affairs, published in Gazette of India Extraordinary, Part II, Section 3 sub-section (ii), Hon'ble the Chief Justice has been pleased to order as under :-- (i). All suits or other proceedings pending in the Delhi High Court on the Original side up to the value of rupees one crore, excepting those cases in which final judgments have been reserved, be transferred to the jurisdictional subordinate courts. (ii). All suits or other proceedings the value of which exceeds rupees one crore but does not exceed rupees two crores, other than those relating to commercial disputes the specified value of which is not less than rupees one crore (as defined in the Commerc....
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....rt fee. Again, keeping the other application (of Geeta Gandhi for refund of excess court fee) pending to be considered and decided by the 'concerned jurisdictional court' falling under the District & Sessions Judge (South East), Saket Courts, New Delhi, observing that this court 'no longer has pecuniary jurisdiction in terms of the existing plaint ' (i.e. the plaint in the suit instituted by Geeta Gandhi, second defendant herein), by the same order dated 08.02.2016, the learned single judge held that in terms of office order dated 24.11.2015, issued by Hon'ble the Chief Justice in exercise of powers conferred by Section 4 of Delhi High Court (Amendment) Act, 2015, ordinary suits (which are not commercial matters), having pecuniary jurisdiction upto the value of Rs. 2 Crores cannot be tried by this court. The civil suit of Geeta Gandhi, CS(OS) 3241/2011 was thus 'transferred for decision to the jurisdictional court under the District & Sessions Judge (South East), Saket Courts, New Delhi' by order dated 08.02.2016 directing the parties to appear before the transferee court accordingly on 22.03.2016. 38. It may also be noted here that, by order dated 12....
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....ay deficit, if any, in the court fee upon the actual measurements of the said terrace and determination of the area encroached upon by the defendants; Thus, the total valuation of the suit for the purposes of jurisdiction is Rs. 2,00,80,530/- and requisite court fee has been paid..." 41. The application seeking amendment pleads as under: "...6. It is submitted that this Hon'ble Court has jurisdiction to entertain and decide the present application for amendment despite the current valuation of the suit being less than Rupees Two Crore. It is a settled position of law when a Court has the inherent jurisdiction to pass certain orders even though it may not have the pecuniary or territorial jurisdiction to try the suit, that would not be a ground to disallow an amendment to the plaint. The object must be to abjure a pedantic approach and interpret procedural rules with the idea of promoting the cause of justice and shunning unnecessary and avoidable delay in the suit proceedings. That this position has been recognized and reiterated by this Hon'ble Court in the case of Sanofi Aventis v. Intas Pharmaceuticals & Ors., 227 (2016) DLT 296..." 42. While maki....
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....s filed the court does not have the pecuniary jurisdiction to try the application for amendment. No doubt procedures are handmaid of justice and may be the reasoning of the judgment in Kamal Sharma's case (supra) is persuasive, however, a Single Judge is bound by the ratio laid down by the Division Bench of this court which is squarely and directly on the point in issue viz the lack of jurisdiction of the court to entertain and allow an amendment application to enhance the pecuniary jurisdiction when the court otherwise does not have pecuniary jurisdiction to entertain the suit and hence the application for amendment of the plaint to increase the pecuniary jurisdiction..." SUBMISSIONS OF PARTIES 43. During the course of arguments before us, the learned counsel for the plaintiff placed reliance on the judgments of the Supreme Court in the case reported as Lakha Ram Sharma v. Balar Marketing Pvt. Ltd. (2008) 17 SCC 671 and Mount Mary Enterprises v. Jivratna Medi Treat Pvt. Ltd., (2015) 4 SCC 182, arguing that it is the prerogative of the plaintiff to put valuation to the relief claimed and by allowing the prayer for amendment, no prejudice or irreparable harm were to be cau....
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....ine of dominus litis; that is to say, the plaintiff is the master of the proceedings and has been vested, by law, with the prerogative not only to put a valuation to the reliefs claimed by him but also to choose the remedy and the forum for its pursuit. Reference has been made in this regard to the provisions contained in Section 7 of the Court Fees Act, 1870 and Section 8 of the Suits Valuation Act, 1887. 46. Reference has also been made to the decisions in Dr. Subramanium Swami v. Ram Krishna Hedge, 1990 (1) SCC 4 and Nahar Industrial Enterprises Ltd. v. Hongkong Shanghai Banking Corporation (2009) 8 SCC 646 to buttress the conclusion that the plaintiff, as the dominus litis has the right to choose the remedy and the forum and further that the opposite party (the defendant) cannot demand that the case be tried in a particular court convenient to him. 47. Quoting the rulings of Madras High Court in V. Ramamirtham v. Rama Film Service, AIR 1951 Madras 93 (FB), of Andhra Pradesh High Court in Kesavarapu Venkateswarlu v. Sardharala Satyanarayana, AIR 1957 Andhra Pradesh 49 and of this court in Taran Jeet Kaur v. G.S. Bhatia, 2009 (108) DRJ 89, it is observed that by ordaining t....
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....Vocational Higher Secondary School v. State of Kerala, (2016) 4 SCC 216 and Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni, (2003) 7 SCC 219, the view expressed is that certain rights accrue to the plaintiff on the date of institution of legal proceedings which cannot be extinguished unless so expressly intended by the subsequent enactment. It is thus held by majority that the High Court can entertain an application - notwithstanding the change of pecuniary jurisdiction - to amend the plaint to bring the suit within its pecuniary jurisdiction. 49. The majority opinion accepts the logic and ratio of the series of orders passed by learned single Judges of this court entertaining and allowing applications for amendment of the plaints in the pending suits to permit increase in the valuation such that the cases which, but for such amendment of plaints, would stand transferred to the District Court after the amendment of law in 2015, resultantly retaining them in the High Court on the original side observing that the transfer of the suits followed by amendment of plaint before District Court resulting in "return" of the plaint for fresh presentation before this Court "would be inj....
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.... on which plaintiff could not have paid the court fee of Rs. 20,10,000/-, the proposal to amend the plaint by enhancement of the valuation of the relief to permanent injunction from Rs. 200/- (as originally affixed) to Rs. 20,08,600/- having been rejected. It was noted that the division bench, notwithstanding the above view, had modulated the relief to one of transfer of the case to a civil court of competent jurisdiction under Section 24 CPC so that the proceedings which had already been undertaken in the suit were saved and by return of the plaint the plaintiff was not relegated to the initial stage. 54. The view expressed in the majority opinion follows the reasoning in the aforementioned orders of the learned single Judges, commending the "pragmatic approach", based on the principle that procedural law is hand-maid of justice, pointing out the possible travails of the plaintiff thus (extracted from the order in Kamal Sharma): "49. Procedures are handmaids of justice. Undue emphasis on following a procedure which, in the facts of a given case, would result in miscarriage of justice is not insisted upon in law, particularly when this Court has the power and jurisdicti....
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....the series of orders of learned single Judges, contrary to the principle laid down from the division bench in Mahesh Gupta (supra), and which is sought to be approved by the majority opinion, are summarized after referring to Lakha Ram Sharma (supra) and Mount Mary Enterprises (supra) in (para 19 of) the order in Sanofi Aventis (supra), and it has been quoted in the subsequent orders of learned single Judges, as under: "The aforesaid decision is a reiteration of the settled legal position that when a court has the inherent jurisdiction to pass certain orders even though it may not have the pecuniary or territorial jurisdiction to try the suit, that would not be a ground to disallow an amendment to the plaint, the logic being that one cannot stick to the form of law to the point that the substance gets obliterated. That would amount to missing the wood for the trees. The object must be to abjure a pedantic approach and interpret procedural rules with the idea of promoting the cause of justice and shunning unnecessary and avoidable delay in the suit proceedings." STATUTORY PROVISIONS 57. The provisions of law having a bearing on the issues, to the extent necessary, may....
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....allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice. Section-24 - General power of transfer and withdrawal : (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be....
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....IT 62. There is undoubtedly a discretion given to the plaintiff to put a valuation to the remedy sought by him in cases where the "market value" of the subject matter is not amenable to a proper estimation, the nature of such reliefs having been specified in Section 7(iv) of the Court Fees Act, 1870, the reliefs in the nature of declaration and injunction particularly falling in the said class. 63. A learned single Judge of this court while deciding certain preliminary issues arising out of three civil suits (two relating to declaratory reliefs and the third for rendition of accounts and recovery besides injunction) which had been consolidated for purposes of trial, in his order reported as Hansraj Kalra v. Kishan Raj Kalra & Ors, (1976) ILR Delhi 745 observed as under: "14....The Suits Valuation Act, 1887 prescribes the mode of valuing certain suits for the purpose of determining the jurisdiction of the courts with respect to such suits. Valuation of the suit for purposes of court fees and valuation for the purpose of jurisdiction are, therefore, two distinct matters. While in suits for which a fixed court fee is payable valuation of the subject matter for purposes ....
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.... court fee may have to be ultimately computed by the Court, under cl. (iv) this is conspicuous by the absence of any such criteria. Thus the rationale underlying the provision is both the difficulty of first valuing the property as such and the greater one of valuing the relief therein which is sought to be claimed by the plaintiff. x x x 9. ... two competing principles vie for acceptance here. The first one stems from the fact that cl. (iv) of S. 7 does give liberty to the plaintiff to evaluate his relief. ...One cannot be unmindful of the fact that unscrupulous defendants may pointlessly raise issues of valuation in order to delay the matter at the very threshold and thereby obstruct the pace of the suit, by resorting thereafter to the revisional jurisdiction. 10. Nor can one lose sight of the fact that holding that the plaintiff has an absolute right to place any valuation whatever on his relief and the court has no jurisdiction in the matter at all would equally be capable of gross abuse and even public mischief. Once it is so held, it may and is most likely to lead to a gross and deliberate undervaluing of the relief claimed. ...it is the plaintiffs ....
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....on over a suit or appeal had exercised it by reason of over-valuation or under-valuation, should not be entertained by an appellate Court, except as provided in the section... there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation or under-valuation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on overvaluation or undervaluation should be dealt with under that section and not otherwise. x x x ...The policy underlying sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits..." 69. The above vie....
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....ses irreparable prejudice to the other side. In the event of the amendment proposed by one party being resisted by the opposite side, the court is bound to consider the issue and reject the prayer for amendment if the same is not bonafide. [see Gurdial Singh and Ors. v. Raj Kumar Aneja and Ors., 2002 (2) SCC 445 and P.A. Ahammed Ibrahim v. Food Corporation of India, (1999) 7 SCC 39] 72. It may be added in this context that the muster on which the proposal to amend the relevant portions of the plaint to change the valuation (put at the threshold) for purposes of court fees and jurisdiction would be the same as stated above. In other words, the question as to whether such amendment is bonafide has to be examined by the court before amendment is allowed. The plaintiff cannot claim that he being the dominus litis and given the discretion by the provisions contained in Court Fees Act, 1870 and the Suits Valuation Act, 1887 has the unrestricted prerogative to put an appropriate valuation to the reliefs (declaration and injunction) and, therefore, possesses an absolute right to change at his will. The discretion to put an appropriate valuation at the threshold may generally not be ques....
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....had invoked the jurisdiction of the Apex Court, inter alia, referring to Section 25 of the CPC seeking transfer of the case to the City Civil Court, Bangalore in the State of Karnataka contending that would be most appropriate place for the trial since all the events connected to the subject matter of the litigation had occurred there, the documentary evidence having a bearing was available, inter alia, in the official files in Bangalore and most of the witnesses in the know of the facts were residents of Karnataka. The plaintiff of the suit had resisted the plea for transfer asserting the right of dominus litis to choose the forum. 79. The Supreme Court allowed the request for transfer, inter alia, observing thus: "10....The paramount consideration for transfer of the case under Section 25 of the Code must be the requirement of justice. If the ends of justice so demand, the case may be transferred under this provision notwithstanding the right of dominus litis to choose the forum and considerations of plaintiffs convenience, etc., cannot eclipse the requirement of justice. Justice must be done at all costs, if necessary by the transfer of the case from one Court to ano....
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....ts of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges..." 84. In Sub- Committee of Judicial Accountability v. Union of India, (1992) 4 SCC 97, it was observed thus :-- "5.... Indeed, no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench" 85. In Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr., (2005) 2 SCC 673, the Supreme Court summarized the legal position on the subject of binding precedents, ruling as under :-- "12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms....
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....Income Tax v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363 and, again, in Union of India v. Dhanawanti Devi and Ors., (1996) 6 SCC 44 wherein the court ruled thus: "9. ...A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consider....
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....he matter had referred a question of law for adjudication that necessitated consideration of the status of the High Court while exercising the original civil jurisdiction. It is in this context the decision was rendered, inter alia, as under: "23....Although Section 2(4) (of CPC) does not expressly seek to define the term "District Court", the meaning that emerges therefrom also includes the definition of "District Court". This is because the term "District Court" is defined (in parenthesis) to mean the principal civil court of original jurisdiction that exercises such jurisdiction over a defined territory. Now, Section 5(2) of the Delhi High Court Act provides that the High Court shall exercise ordinary original civil jurisdiction in every suit where the value of the suit exceeds a certain limit (presently rupees 2 crores). Therefore, the court of ordinary original jurisdiction in Delhi for the purposes of suits exceeding such pecuniary value would be the High Court, and for all other purposes, it would be the District Court. This would be the result of a combined reading of Section 5(2) with Section 24 of the Punjab Courts Act, 1918, which provides that the court of Dist....
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...., be transferred to the High Court of Delhi. (3) Notwithstanding anything contained in Sub-sections (1) and (2) of this section and in section 5, but save as hereinafter provided, the High Court of Punjab shall have, and the High Court of Delhi shall not have, jurisdiction to entertain, hear or dispose of, appeals applications for leave to appeal including leave to appeal to the Supreme Court, applications for review and other proceedings where any such proceedings seek any relief in respect of any order passed by the High Court of Punjab before the appointed day: Provided that if after any such proceedings have been entertained by the High Court of Punjab, it appears to the Chief Justice of that High Court that they ought to be transferred to the High Court of Delhi, he shall order that they shall be so transferred, and such proceedings shall thereupon be transferred accordingly. (4) Any order made by the High Court of Punjab- (a) before the appointed day, in any proceedings transferred to the High Court of Delhi by virtue of Sub-section (2); (b) in any proceedings with respect to which the High Court of Punjab retains jurisdiction by virtue of ....
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....sation on territorial or pecuniary jurisdiction. Thus, the former was to act only as a post office with no authority to adjudicate except for taking a call about jurisdiction. 97. The Delhi High Court (Amendment) Act, 1991 had brought about similar changes in the pecuniary jurisdiction of this court and of the district courts in the matter of original suits, and had come into force with effect from 09.11.1992. By the said amendment, the pecuniary limits to the jurisdiction of the district court was enhanced to Rs. 5 Lakhs in place of the then limit of Rs. 1 Lakh. By Section 4 of the said amendment Act, 1991, which was worded on the same lines as Section 4 of the amendment Act 2015, the power to take a decision with regard to the transfer of suits and other proceedings pending in this court immediately before the commencement of the said change was conferred upon the Chief Justice of this court. In exercise of the said power conferred by Section 4, the then Hon'ble the Chief Justice made the following order (extracted to the extent necessary): "..3. "In exercise of powers conferred by Section 4 of the Delhi High Court (Amendment) Act, 1991, hereinafter referred to as....
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....iction to continue with the case, which was the principle laid down in no uncertain terms by a division bench of this court, also against the backdrop of 1991 amendment, in case reported as Delhi High Court Bar Association and Anr. v. Hon'ble the Chief Justice, High Court of Delhi and Ors., (1993) 50 DLT 532 : ILR (1994) 1 Del 271. 100. Noticeably, in Delhi High Court Bar Association (supra) the power conferred upon the Chief Justice to take a decision about pending cases by the similar provision of Section 4 of the said amendment Act (of 1991) was challenged as unconstitutional, inter alia, on the grounds that it took away the "vested right of appeal"; was discriminatory; and the order issued was vitiated because the Chief Justice had engaged the full court and a committee of judges in consultation. The division bench rejected all the said contentions finding no impropriety in the process of consultation and observing in this context that the "discretion to be exercised by the Chief Justice is administrative in nature", pertinently concluding as under: "(31)...but for Section 4 of the Amending Act all the cases pending in the High Court of the value of Rs. 5 lakhs ....
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....he context of 1991 amendment and while declining to go into the "correctness" of the view thus taken proceeds to observe that even according to this dictum, this court did not "cease to have jurisdiction... till the Chief Justice took the decision" in exercise of the power conferred by Section 4, referring in this context to Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 14 SCC 696. 104. With respect, I am unable to agree, the first reason being that the Chief Justice has already taken the decision and so it cannot be argued that the point of cessation has not arrived. 105. The controversy in Ramesh Kumar Soni (supra) arose out of amendment of Code of Criminal Procedure, 1973 by the State of Madhya Pradesh shifting the jurisdiction to try certain offences (punishable under Sections 408, 420, 467 and 471 of Indian Penal Code, 1860) from the court of Magistrate to the court of Sessions. The issue had arisen upon a reference made by a court of Sessions to which a case involving such offences instituted prior to the amendment had been committed by the court of Magistrate. The Supreme Court held that there was no "vested right of forum" and the change in procedural law affec....
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....e no doubt that the principal Civil Court of original jurisdiction to try this suit would be the Court of the District Judge, Delhi. But a change was brought about by the Delhi High Court Act, 1966, as amended, by Sub-section (2) of section 5 which provides that notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the territory of Delhi ordinary original civil jurisdiction in every suit the value of which exceeds fifty thousand rupees. This sub-section starts with a non-obstante clause and is applicable to "every" suit the value of which exceeds fifty thousand rupees. This being a suit the value of which exceeds fifty thousand rupees would be covered by this sub-section.... In view of the non obstante clause contained in sub-section (2) of section 5 of the Delhi High Court Act, 1966, the Court of the District Judge, Delhi, has ceased to remain the principal Civil Court of original jurisdiction with respect to any suit value of which exceeds fifty thousand rupees..." (emphasis supplied) 108. In Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors., AIR 1965 SC 1449, the Supreme Court ruled that the ju....
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....ly declaring that the transfer of cases in its terms to the subordinate courts "shall commence" from the said date. Thus, the change in the jurisdiction in so far as the pending cases are concerned would apply retrospectively upon issuance of the order on 24.11.2015. In this backdrop, reference to Mohd. Idris and ors. v. Sat Narain and ors., AIR 1966 SCC 1499, would be misplaced. The "discretion" exercised by the Chief Justice in formulating a policy for purposes of enforcing the legislation mandated in Section 4 of the amending Act of 2015 may be "administrative" in nature, as observed in Delhi High Court Bar Association (supra), but that cannot be the description of the "power" conferred upon her by Section 4. As also observed in the said case, the words "may transfer" have been used in the statutory provision more out of deference to the high office of the Chief Justice. The provision otherwise is part of the overall scheme of the enactment and reflects legislative intent and public policy. Therefore, the word "may" is to be read as "shall". At any rate, after the issuance of the order on 24.11.2015 by the Chief Justice, it becomes a mandate. 112. Without doubt, by virtue of ....
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....bly of National Capital Territory of Delhi. The validity of the said enactment came up for challenge, primarily on the ground of legislative competence, before a full bench of this court leading to the decision reported as Geetika Panwar v. Govt. of NCT of Delhi 99 (2002) DLT 840 (FB) whereby the amendment to Section 5(2) of the parent Act was held to be ultra vires. While the said challenge was pending, certain civil suits had been filed before the district court invoking its enhanced pecuniary jurisdiction in terms of the said amendment. The amending Act having been held to be ultra vires, with the objective of ensuring that such suits were not rendered invalid, the Court directed that the same "will be deemed to have validly been instituted and the orders, if any, passed thereon will be deemed to have been validly passed", with further direction that all such suits filed before the subordinate courts pursuant to the impugned legislation "shall stand transferred to this Court... to be tried, heard and determined, as if the same had been filed in this Court and have been pending in this Court". The Civil suit which was subject matter of the petition in Jagdish Prasad Sharma v. Sta....
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....amendment of 2015 enhanced the pecuniary jurisdiction of the district courts and also made provision for transfer of the pending cases pertaining to such pecuniary limits from this court to the district courts. This being the public policy, and the legislative intent, the view suggested in the majority opinion might have the effect of defeating the object of the law, which approach, to my mind, would not be proper. The decision in Taran Jeet Kaur (supra), in fact, was rendered by one of us, while dealing with a civil suit on the original side, upholding the objection to its maintainability on the ground of lack of pecuniary jurisdiction observing against whimsical or arbitrary valuation and relying upon Nandita Bose v. Ratanlal Nahata, 1987 (3) SCC 705, directing return of the plaint, holding, inter alia, that "once the legislature has mandated that the suit shall be instituted in the court of the lowest grade competent to try, the same has to be adhered". 118. It bears repetition to say that Delhi High Court (Amendment) Act, 2015, reflects the legislative mandate and public policy. The power conferred upon the Chief Justice of the High Court of Delhi by Section 4 respecting the....
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....ction on the original side of this court during the relevant period was for suits of the jurisdictional value of more than Rs. 5,00,000. The plaintiff moved an application under Order 6 Rule 17 CPC to increase the value of the suit for purposes of injunction to Rs. 5,05,000. This prayer was rejected by a learned Single Judge with observation that "The Court having no jurisdiction in the matter cannot pass orders so as to assume jurisdiction ". 123. A suit had been filed on the original side of this Court for declaration, permanent injunction and rendition of accounts respecting the property over which the plaintiff claimed to have the title. On account of change in the pecuniary jurisdiction (by amendment of 2003), the case fell in the category which was to be transferred to the district courts. The plaintiff moved an application under Section 24 read with Section 151 CPC praying that despite change in the pecuniary jurisdiction, the suit be retained and tried by this Court. In view of certain subsequent events, the plaintiff moved another application seeking to amend the plaint, which, if allowed, would have resulted in valuation of the suit for purposes of court fee and jurisd....
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....necessarily be returned. The general power of transfer and withdrawal, vested in this court by Section 24 CPC, provides the remedy and would ensure that the proceedings in the case do not get derailed and the progress made till the stage of amendment is not forfeited. The case mentioned in the following para reinforces this view. 127. In a suit filed for permanent injunction and damages, the plaintiff was allowed by the trial court to incorporate amendment in the plaint so as to seek higher amount of damages and consequently increase the valuation for purposes of court fees and jurisdiction. As a result of such amendments, the suit was rendered beyond the pecuniary jurisdiction of the civil court where it had been instituted. The plaintiff moved this Court invoking its jurisdiction under Section 24 CPC seeking transfer of the suit to its original side. The defendant objected on the ground that the provision contained in Order 7 Rule 10 CPC would apply and the plaint was bound to be returned so as to be presented before the court of competent jurisdiction. This contention was rejected by a learned Single Judge in case reported as Aviat Chemicals Pvt. Ltd. & Anr. v. Magna Laborato....
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....rial court to the High Court on its original side could not have been a reason for which the amendment application should have been rejected. 131. Noticeably, the amendment applications in Lakha Ram Sharma (supra) and Mount Mary Enterprises (supra) were presented before the court of competent jurisdiction where the civil suits had been properly instituted (in accordance with the valuation pleaded). The amendment applications had, inter alia, been rejected by the jurisdictional court on the ground that the valuation of the relief if enhanced would result in the case being rendered out of the jurisdiction of such court. The Supreme Court found this reasoning only to be incorrect. These rulings cannot be taken as precedents for the proposition that a court which does not have the jurisdiction may entertain or allow amendment of the pleadings so as to assume jurisdiction. 132. Having perused the separate opinion penned by Sanjiv Khanna J, I deem it necessary to add a few more lines. Reference to the 8th explanation appended to Section 11 CPC (res judicata) or to "bootstrap doctrine", would not be correct for the reason, in my opinion, post issuance of order by the Chief Justice, ....
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....en to question but the move to make amendments in such valuation would have to pass the same test as is applied in the case of amendments of pleadings and, thus, must be bonafide and not arbitrary or capricious or irreparably prejudicial to the defendant. 135. Permissibility of amendment to the pleadings as proposed by a party to the civil suit is an issue to be determined by the court which has the requisite jurisdiction to deal with the matter in which such issues arise. There is no "inherent jurisdiction" to deal with the matter concerning which the law confers no jurisdiction. 136. The amendment of Delhi High Court Act 1966, and the Punjab Courts Act, 1918, bringing about change in the pecuniary jurisdiction of the two forums (High Court and District Courts) for purposes of dealing with original civil suits would not result in automatic transfer of previously instituted cases (resultantly rendered beyond pecuniary jurisdiction) from one forum to the other. But, once the power given by law (Section 4) to the Chief Justice of the High Court to take a decision with regard to the pending litigation is exercised and an order issued in such regard, the same being analogous to d....
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....suance of the order by Hon'ble the Chief Justice as per notification No. 27187/DHC/Orgl. dated 24.11.2015, in exercise of the power vested in her by Section 4 of Delhi High Court (Amendment) Act, 2015, the suits or proceedings falling in the categories specified therein, pending on the specified date on the original side of this court, are required to be transferred forthwith to the subordinate jurisdictional courts and this court, its pecuniary jurisdiction over such cases having ceased, cannot entertain, or adjudicate upon, any application, including for amendment of the plaint, except in the event of such case, after having been made over to the District Court, being withdrawn and transferred to this court, inter alia, in exercise of power under Section 24 of the Code of Civil Procedure, 1908." 140. The file of the civil suit in which the reference was made shall be placed before the appropriate forum for further proceedings in accordance with the law on the date specified in the separate order passed by the majority. Sd/- R.K. GAUBA JUDGE Sanjiv Khanna, J. 141. The questi....
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....ceptualisation as it has varied shades and hues. 146. Jurisdiction of Court to decide its own jurisdiction is somewhat paradoxical, yet as a first principle, it is accepted that each court, including a court or forum of limited jurisdiction, in the absence of a specific statutory mandate to the contrary, has the power to decide whether or not it can try and decide the matter. It is also difficult to conceive of a civil court or a tribunal which has omnibus and unlimited jurisdiction, unrelated and not circumscribed with reference to the subject matter, person, territory or the amount involved. This principle of legal self-reference has been dealt with subsequently also. 147. Explanation VIII to Section 11 relating to res judicata, incorporated by the Code of Civil Procedure (Amendment) Act, 1976, reads:-- "Explanation VIII.--An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised." The purport of the said ....
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....ing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at earliest possible opportunity and in all cases were issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity, and in all cases where sues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been consequent failure of justice." 150. Section 11 of the Suit Valuation Act, 1887 reads:-- "11. Procedure where objection is taken on appeal on revision that a suit or appeal was not properly valued for ju....
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....he position in law is when a court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position. 7. Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure an objection....
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....the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act." A reading of the aforesaid paragraphs would show that the Supreme Court had accepted the general principle that a decree passed by the court without jurisdiction is a nullity and the plea of invalidity can be raised at the stage of execution or even in collateral proceedings. However, the Supreme Court did make a distinction between subject-matter and pecuniary/territorial jurisdiction and observed that the question of over or undervaluation cannot be entertained by the appellate court, except when provided in Section 21 of Code. This principle stands out and is clear. The question of over-valuation or under- valu....
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.... primarily regulates the procedure and not "jurisdiction". The Section recognises that courts or more than one court would have jurisdiction to try a suit and, therefore, uses the expression ' the court of the lowest grade'. Reference to this Full Bench decision is not with a view to undermine the salutary object of Section 15 of the Code, but to highlight the difference between subject matter and pecuniary jurisdiction, the latter being dependent on the valuation of the suit These are different and distinct facets of jurisdiction, all of which cannot be put in a straitjacket. 153. Lastly, a distinction must be drawn between institution of the suit in the court of competent jurisdiction at the start of the proceedings, and subsequent change resulting lack of jurisdiction. The court or tribunal may subsequently lose jurisdiction in certain circumstances, including when the jurisdiction is ousted by the statutory provisions. This is what has happened and transpired in the present case. 154. The suit in question was instituted in the Delhi High Court in accordance with Section 15 of the Code. However, there has been a subsequent change in the pecuniary jurisdiction of th....
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....d right of forum. Unless, by express words, the new forum is made available only to such cause of action as arises subsequent to the creation of the forum, the general rule is to give retrospective effect to the change, However, in Hitendra Vishnu Thakur and Others versus State of Maharashtra and Others, (1994) 4 SCC 602 it has been held that a statute, which affects substantive rights, is presumed to be prospective in operation, unless made retrospective either expressly or by necessary intendment. Further, an amendment to a procedural statute, unless such construction is textually impossible, is presumed to be retrospective in application. A procedural statute should not generally be applied retrospectively where the result would be to create new disabilities or obligations or impose new duties in respect of transactions already accomplished. 155. It is this reasoning that possibly prevailed with the Division Bench of this Court when they had decided Delhi High Court Bar Association and Another versus Hon'ble the Chief Justice, High Court of Delhi and Others, Writ Petition (C) No. 4520/1992 dated 23rd April, 1993. The said decision was with reference to the amendment of su....
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....rt Bar Association (supra) correctly holds that all pending matters stood transferred in view of language of sub-section (2) to section 5 of the Delhi High Court Act, post the amendment. The amendment made in sub-section (2) to section 5 has to be read in the light of, and harmoniously with Section 4 of the Amending Act and not in isolation and de hors the said section. R.K. Gauba, J. in his conclusion has rightly observed that the transfer of pending cases under Section 4 of the Amendment Act of 2015 required the Chief Justice to take a decision and issue an order (See Paragraph 118). The same being analogous to delegated legislation would be the foundation and the basis of transfer of the cases. If we would accept the ratio of the Delhi High Court Bar Association as correct, then by operation of Section 5(2) of the Amending Act all orders post 26th October, 2015 till 24th November, 2015 in suits value of which was Rs. 2 Crores or less would be questionable on the ground of lack of jurisdiction. The notification of the Chief Justice under Section 4 of the Amending Act quoted and examined below is dated 24th November, 2015. 157. This brings us to the core issue as to whether the....
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....iginal Side of the Delhi High Court which are valued at exceeding Rs. 2 crores (Rs. 1 crore in commercial cases) would be transferred to the jurisdictional subordinate court. If one strictly goes by the language, then cases in which orders on interim applications including applications for amendment have been reserved, would have to be transferred without pronouncement of the said orders. This, however, does not appear to be the intent and purpose of the notification. The cases in which orders on interim applications have been reserved, can be certainly pronounced, even though after pronouncement the said cases may have to be transferred to the subordinate court. This is for the reason that the Judges on the original side do not suffer from lack of jurisdiction and are not functus officio. 158. The primary reason why I feel that the High Court would have the jurisdiction to decide the application for amendment enhancing the pecuniary jurisdiction is that the Original Side of the High Court is still in seisin of the matter till the suit or proceedings are actually ordered to be transferred to the subordinate court. On the question of transfer of a case from the Original Side of t....
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....on for amendment is accepted, the subordinate court would not have pecuniary jurisdiction to pass any order. This would result in a situation of circulus inextricabilis. We should avoid Renvoi. The term has been defined in Black's Law Dictionary, Eighth Edition (Pg.1324) as the doctrine under which a Court in resorting to foreign law adopts as well the foreign law's conflict-of-laws principle which may in turn refer the Court back to the law of the forum. Logically, therefore, we should not follow an approach which leads to infinite regress as this would lead to absurdity. Pertinently, the Division Bench in Mukesh Gupta (supra) had exercised the power under Section 24 of the Code and had retained the suit. It was also observed that the ratio of the decision would not be applicable where the contention of the plaintiff-applicant was that there was a typographical or a clerical error while typing the valuation paragraphs in the plaint. 160. Almost identical question had arisen before the Supreme Court in Lakha Ram Sharma versus Balar Marketing Private Limited, (2008) 17 SCC 671 and it was held that it is settled law that merely because an amendment may take the suit out of....
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....igation. 162. The view we have taken would not only cut short delays, but is a pragmatic view. It enables the Court where the suit is pending to determine and decide the application for amendment relating to pecuniary jurisdiction for if the amendment is allowed or dismissed, the suit will be retained or transferred and parties are not relegated to another court where the application for amendment would then be considered and depending upon the decision, the suit could be re-transferred or returned to be presented in the earlier court. If we follow the second procedure, it would cause delay and make the procedure more cumbersome and difficult. This would not be in the interest of the litigant wanting an expedited and quick disposal. The decision in Lakha Ram's case (Supra) adopts a pragmatic view to hold that the court is in seisin of the matter can decide the application for amendment even when an amendment, if allowed, would take the suit/proceedings beyond the pecuniary jurisdiction of that Court. As sequitor the High Court being in seisin of the suit, it would not be barred or prohibited from deciding the application for amendment, which if allowed, would have the effect....