Prasenjit Mandal, J. - (1.) THIS application is directed against the order dated August 30, 2007 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Suit No.214 of 2001 thereby allowing an application for amendment of the plaint.
(2.) THE short fact is that the predecessor in interest of the opposite parties instituted a suit being T.S. No.214 of 2001 against the petitioners for a decree of declaration of title, permanent injunction and other reliefs before the learned Civil Judge (Junior Division), 5th Court, Howrah. THE original plaintiff contended that he acquired title to the suit property by purchase. THE defendants/petitioners herein are contesting the said suit by filing their written statement denying all the material allegations made in the plaint. THEir statement is that the suit is not maintainable in its present form. THE plaintiff has no possession over the suit property and that the defendants are in possession of the suit property. For that reason, the suit is not maintainable in its present form. THE suit was at the stage of pre-trial. At that time, the plaintiff prayed for amendment of the plaint for changing the vacation of the suit property, inclusion of certain other prayers and also the prayer for recovery of the possession of the suit property. That application for amendment of the plaint was allowed by the impugned order. Being aggrieved by the said order, this application has been preferred by the defendants. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the father of the opposite parties instituted the said suit for declaration of title, permanent injunction and other reliefs on October 8, 2001. The defendants have raised the question of maintainability of the suit contending, Inter alia, that since before the institution of the suit, they are in possession of the suit property. They have the necessary documents such as deeds, record of rights, tax receipts, etc. in support of their contention on possession over the suit property. They have also contended that the suit as framed, is not maintainable and that it is not properly valued.
(3.) MR. S.P. Roychwdhury, learned Senior Advocate appearing for the petitioners has drawn my attention to the cause title and other portions of the plaint appearing as Annexure A' to the application and thus, he submits that the plaintiff filed the suit for declaration, permanent injunction and consequential reliefs. The suit was valued at Rs.45/- only. By referring to paragraph No. 10 of the plaint, MR. S.P. Roychwdhury submits that the suit valuation has been split up as Rs. 10/- for declaration, Rs. 15/- for permanent injunction and Rs.20/- for other consequential relief as per provisions of section 7(iv) (b) & (c) of the West Bengal Court Fees Act, 1977 and the plaintiff has paid Court fees thereon. He also submits that the defendants have taken the plea that the plaintiff is not in possession of the suit property and so in consideration of the relief sought for, the suit is barred by section 34 of Specific Relief Act. Moreover, proper Court fees have not been paid over the suit property. Mr. Roychwdhury has drawn my attention to the impugned order and thus, he contends that amendment sought for is not proper at all and that is why it is challenged. The valuation has been made to the tune of Rs. 100/- only as per application for amendment of the plaint. The plaintiff has sought for amendment of the plaint incorporating the prayer for decree for recovery of possession and for that reason suit valuation has been raised from Rs.45/- to Rs.100/- for recovery of possession of the suit property. This valuation cannot be accepted at all. He has also contended that if the true valuation of the property which may be more than Rs. 1 crore is taken into consideration, the learned Trial Judge has no pecuniary jurisdiction over the suit property and so the learned Trial Judge has no right to deal with the property. He also contends that according to section 21 of the Civil Procedure Code, the objections to jurisdiction should be taken in the Court of first instance at the earliest possible opportunity and as such, in consideration of the relief sought for after amendment of the plaint, the learned Trial Judge has no jurisdiction over the suit and so he should have taken appropriate steps under Order 7 Rule 10 of the CPC. Thus, he submits that the suit valuation as indicated by the plaintiff in the amendment of the plaint is not proper. But the learned Trial Judge has allowed the application for amendment with further observations that the plaintiff will be saddled with an obligation to pay the ad valorem Court fees with the valuation of the suit without the determination of the value. So, the impugned order should be set aside.;