TMI Blog2018 (7) TMI 2240X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the suit also in any manner and taking into account the factum that defendant No. 2 has himself raised the issue in relation to the aspect of under valuation of the suit property and for the purpose of the court fees and jurisdiction qua which issue no. 8 was framed at the time of framing of the issues coupled with the factum that virtually the trial has yet to commence in as much as the testimonies of the witnesses are yet to be led, it is held that there is no merit in the prayer made by the petitioner seeking the setting aside of the impugned order dated. 2.6.2018 qua the amendment sought by the respondent No. 1 in relation to the para 19 of the plaint. Petition dismissed. - C.R.P. 141/2018 and CM Nos. 27756-57/2018 - - - Dated:- 17-7-2018 - Anu Malhotra, J. For the Appellant : Ashok Chhabra and Hem Kumar, Advocates For the Respondents : Viraj Datar, Vineet Jhanji and Imran Moulaey, Advocates JUDGMENT Anu Malhotra, J. 1. On behalf of the petitioner, at the outset, reliance has been placed on the verdict of this Court in Oil and Natural Gas Corporation Ltd. v. Vijay Mahajan, 237 (2017) DLT 158 whereby it has been observed to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the defendants No. 1 and 2 of the said suit, of whom the defendant No. 2 is arrayed as the present petition to the present petition, had filed an application under Order VI Rule 17 CPC seeking an amendment in the written statement in the year 2015 before commencement of the cross-examination of the plaintiff and that the defendant No. 2, i.e., the present petitioner had now objected to the plaintiff to seek an amendment under Order VI Rule 17 of the Code of Civil Procedure. 5. On behalf of the petitioner reliance has been placed on the verdict of this Court in Anuradha Gupta vs. Veena Devi; CM(M) 1069/2016 decided on 24.7.2017 with specific reliance qua observations in paragraph 14 14. Be that as it may in the light of the judgment of the Supreme Court in Suhrid Singh@Sardool Singh supra, paras 7 8 whereof are as under: 7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect that such an amendment as sought by the plaintiff, i.e., respondent No. 1, qua the valuation of the suit for the purpose of the Court fees and jurisdiction cannot be permitted. Reliance was also placed on behalf of the petitioner on the verdict of this Court in Sujata Sharma v. Manu Gupta and Ors.; CS(OS) 2011/2006 decided on 8.2.2010 submitting to the effect that the fixed court fee only was required to be paid and thus the amendment sought by the respondent No. 1 was actually seeking forum stopping which cannot be permitted and that there can be no permission granted for the amendment sought by the respondent No. 1 on the basis of the market value of the property which the respondent No. 1 through an application under Order VI Rule 17 CPC at the outset had since increased. Reliance was also placed on behalf of the petitioner on the verdict of the Supreme Court in Vidyabai and Ors. v. Padmalatha and Anr.; AIR 2009 SC 1433 submitting to the effect that the trial in the instant case had already commenced and that in terms of the amendment w.e.f. 1.7.2002 in the Code of Civil Procedure, 1908, in terms of the Proviso to Order VI Rule 17 CPC there was nothing on the record to indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific reliefs qua observation in paragraphs 4 to 7 which read to the effect: 4. It had been also submitted by the learned counsel that in normal circumstances an amendment application is always granted unless by virtue of the amendment, nature of the suit is changed or some irreparable harm is caused to the defendant. According to him, in the instant case neither nature of the suit was changed nor was the defendant being put to any hardship. The amendment was also not likely to cause any prejudice to the defendant. The amendment which was sought to be made was just and proper because actual market value of the said property was ₹ 1,20,00,000/-. For the aforesaid reasons, it had been submitted by him that the impugned judgment confirming the order rejecting the amendment application should be set aside and the appellant should be permitted to amend the plaint. 5. On the other hand, the learned counsel appearing for the respondent-defendant had submitted that the amendment application was filed at a belated stage with an oblique motive. According to him, in pursuance of the said amendment, the suit was to be transferred to the High Court and only with an intention to see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tifiable reason on which the High Court has refused this amendment. Accordingly, the impugned order is set aside and that of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from ₹ 1 Lakh to ₹ 10 Lakh, the trial court will determine, whether or not Court Fees are correctly paid. wherein inter alia it has been observed to the effect that it was also a settled law that merely because the amendment may take the suit out of the jurisdiction of that Court is no ground for refusing that amendment, though it was clarified that as the plaintiff has raised the claim from ₹ 1 lakh to ₹ 10 lakhs, the trial will determine, whether or not court fees are correctly paid. 11. The issue No. 8 as framed on 28.5.2009 would undoubtedly have to be determined by the trial court on the basis of the evidence led. Reliance was also placed on behalf of the respondent No. 1 on the verdict of this Court in Mehra Cosmetics v. Ram Kumar Gulati Ors. in CS(OS) 196/2016 decided on 6.12.2016 wherein it has been categorically observed to the effect that in relation to an application seeking increase of valuation from ₹ 10 lakhs to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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