D.K.Seth, J. - (1.) This appeal is preferred against a judgment and order holding that the part of the relief relates to land outside the original side jurisdiction of this Court and granting liberty to the plaintiff to amend the plaint on the basis of the plaintiffs assertion for abandoning the part of the claim. The plaintiff has filed the cross-objection to the appeal filed by the defendant challenging the part of the order relating to absence of jurisdiction passed by the learned Single Judge. Mr. Surajit Mitra, learned Counsel for the appellant, contended that once it is held by the Court that the suit is a suit for land outside the original jurisdiction, the Court has no power to allow amendment of the plaint. He relied on the decision in Johra Khatoon vs. Janab Mohammad Jane Alam & Ors., AIR 1978 Cal 1978, to support his contention. He also placed reliance on the decision in Manthan Brand Band Services Pvt. Ltd. & Anr. vs. C.K.T. Communications Pvt Ltd., 2005(2) CHN 648, and also on the decision in City scape Developers Pvt. Ltd. vs. Alka Builders Pvt. Ltd., 2000(1) CLT 346. On the other hand, Mr. Abhrajit Mitra submitted that the relief claimed being alternative, it is open to the plaintiff to relinquish the part of the claim in case it is found that the claims are separable and the part of the suit can be entertained by this Court on account of its being within the jurisdiction. He distinguished the decision in Johra Khatoon (supra) and pointed out that the said decision also permits retention of a part in appropriate cases. Mr. Abhrajit Mitra relied upon the decision in Sheela Adhikari vs. Rabindra Nath Adhikari & Ors., 92 CWN 248, where it was held that if the part of the claim is within the jurisdiction, in that event, the Court has every jurisdiction to retain the part within the jurisdiction and decide the same and allow amendment of the plaint so as to enable the Court to deal with the same if it does not lack jurisdiction inherently. Abhrajit Mitra also relied on the decision in Adcon Electronics Pvt. Ltd. vs. Daulat & Anr., 2001(7) SCC 698, to support his contention. Immovable property outside Original Side jurisdiction: Segregation of relief: Abandonment of that part: Amendment: Whether permissible :
(2.) The law is well-settled and needs no elaboration. If the suit relates to possession of any land or determination of any interest or title in the property situated outside the Original Side jurisdiction, then this Court lacks jurisdiction to decide the same. But in case it is simply a suit for execution of a conveyance by way of specific performance without involving any determination of title or interest or question of possession or other reliefs, in that event, though it involves immovable property, the suit cannot be said to be outside the jurisdiction on account of the property being situated outside the original jurisdiction. This was expressly held in Bengal Agricultural and Industrial Corporation Ltd. vs. Corporation of Calcutta & Anr., AIR 1960 Cal 123, by a learned Single Judge of this Court, since being followed all through. Same view was taken in Devendra Nath Chowdhury vs. Southern Bank Ltd., AIR 1960 Cal 626 by a Division Bench. This was approved by the Apex Court in Adcon Electronics Pvt. Ltd. 2001(7) SCC 698 (supra). We need not dilate any further. 2.1. Coming back to the present case, it appears that the plaintiff had advanced some amount to the defendant, to be repaid within a stipulated time together with interest and in case it is not repaid within the time, the plaintiff would have an option to ask for conveyance of the property admittedly situated outside original jurisdiction, agreed to be conveyed in favour of the plaintiff. In such circumstances, the plaintiff claimed the relief of a money decree together with interest as it appears from paragraph 9 of the plaint (page 22 of the application). At the same time, the plaintiff had made an alternative claim if the principal claim is not granted, namely, to pass a mandatory injunction directing the defendant No.1 to have a conveyance executed in favour of the plaintiff by the proforma defendant. Learned Single Judge had held that in order to obtain a conveyance executed through the proforma defendant on the strength of an order mandating the defendant No.1 to obtain such document envisages investigation of title and, therefore, it is a suit for land. We need not go into the question whether it should be a suit for land in view of the fact that the plaintiff had no Us so far as the proforma defendant is concerned and it may not be convenient to adjudicate such question within the framework of the suit, which might embarrass the trial. 2.2. Thus, in such a case the Court itself is empowered to direct separate trial in terms of Order 2 Rule 6 of the Civil Procedure Code (CPC) if it is otherwise inconvenient or may embarrass the trial. At the same time, it is always open to a plaintiff to relinquish any portion of his claim as envisaged in Order 2 Rule 2 CPC. In this case, it appears that the prayer is an alternative one. The suit can very well be entertained so far as the principal relief claimed and the alternative . relief can be segregated without affecting the primary relief. It is not a case of inseparable relief. Surajit Mitra contended that the cause of action is one but relief is two. If on the basis of the cause of action, one of the reliefs is claimed which the Court has jurisdiction to grant, in that event, it cannot be said that the suit is not maintainable within the jurisdiction of this Court for the alternative relief, which is within the jurisdiction of the Court. The alternative relief within the jurisdiction can very well be granted. The suit as a whole cannot be said to be not maintainable before this Court. One part can be entertained by the Court without the other part and in such a case, as was held in Bengal Agricultural and Industrial Corporation Ltd. (supra) could be proceeded with in regard to the part of the claim which is within the jurisdiction if the other part is abandoned. 2.3. This was reiterated by the Division Bench in Devendra Nath Chowdhury (supra) and approved in Adcon Electronics Pvt Ltd. (supra). The decision relied upon by Surajit Mitra on Mst. Johra Khatoon (supra) also accepts the said proposition where it was held that "If we uphold the view of the learned Judge that the Court had not the jurisdiction to entertain the suit, no amendment can be allowed either by the said Court or this Court in appeal exercising same powers to bring the suit within the jurisdiction of the Court. On the facts, it is clear that it was no a case of mere abandonment of a part of the claim so that the Court in view of such abandonment by the plaintiff may hold the suit in its other part to be within the jurisdiction, on the other hand, even as considered by the learned Advocate General what is necessary is a positive amendment of the plaint itself for bringing it within the territorial jurisdiction of the Court". Thus, this decision recognizes the position that if it is wholly outside the jurisdiction, in that event, no amendment can be allowed. But if a part of the claim is within jurisdiction and such part is segregable and independent of the other and is only a claim or relief, in that event, it can very well be abandoned. 2.4. Similar view was taken by another Division Bench in Manthan Brand Band Services Pvt. Ltd. (supra), cited by Surajit Mitra, holding that "it is true that the plaintiff can at any point of time abandon part of his claims but such relinquishment can be made by filing appropriate application under Order 6 Rule 17 by amending the plaint". On the question of amendment in the said judgment, it was held that it has to be examined whether in the facts of the case such splitting of claims was possible or not having regard to the averments made in the plaint is a question which is to be dealt with by appropriate Court if such application for amendment is filed. Therefore, it cannot be said at the threshold that such amendment cannot at all be allowed. It is only in case where the jurisdiction lacks inherently, the amendment cannot be allowed. But in a case where the Court has jurisdiction in respect of a part, the said principle cannot be applied as was held in Sheela Adhikari (supra) where this Court laid down in a Division Bench that in the absence of jurisdiction the plaint is to be returned or dismissed as a whole but cannot return one part and retain the other part. But the Court can dismiss the part, which is not within the jurisdiction and decide the other part. If it is so, then there is no bar in allowing amendment of the part, which is held to be outside the jurisdiction. The present case:
(3.) In any event, in the present case, the reliefs being alternative, it is open to the plaintiff to abandon or relinquish a part of the claim within the scope and ambit of Order 2 Rule 2 CPC and as such we do not find any infirmity in the order of the learned Single Judge permitting the plaintiff to file an application for amendment in order to abandon a part of the claim which is outside the jurisdiction of this Court. We may record that ultimately we have not decided the question as to whether the suit involves determination of title or other matters in respect of immovable property outside the Original Side jurisdiction. On the other hand, we have held that the relief claimed cannot be conveniently decided within the frame of the suit. Conclusion:;