SUBHANSHINI MALIK vs. S K GANDHI & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Order on reference in CS (OS) No. 1416/2009, arising from
IAs No.3856/2016 (of D-2 for transfer of suit) & 3857/2016
(of plaintiff for enhancement of pecuniary jurisdiction)

st
% Reserved on : 01 June, 2016
th
Pronounced on :6 September, 2016

SUBHASHINI MALIK ..... Plaintiff
Through: Mr. Samar Bansal, Mr. Vinayak
Mehrotra and Mr. Adit S. Pujari, Advs.

Versus
S.K. GANDHI & ORS … ....Defendants
Through: Mr. Niraj Kumar Mishra with
defendant in person.
Mr. Shobhan Mahanti and Mr. Sanjay
Baranawal, Advs. for D-2 with D-2 in
person.

CORAM:-
HON’BLE MR. JUSTICE SANJIV KHANNA
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON’BLE MR. JUSTICE R.K. GAUBA

RAJIV SAHAI ENDLAW, J.

1. Hon‘ble the Chief Justice has constituted this Bench pursuant to the
th
order dated 27 April, 2016 of the learned Single Judge of this Court in
I.A. No.3857/2016 supra of the plaintiff for amendment of the plaint to
enhance the valuation of the suit for the purposes of jurisdiction. The
th
relevant paras of the order dated 27 April, 2016 (reported as 2016 SCC
Online Del 2497) are reproduced herein below:
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 1 of 123



―6. Accordingly, let the present file be placed before Hon‘ble the
Chief Justice for constituting a larger Bench as regards whether
the judgment in Mahesh Gupta’s case (supra) has rightly been
interpreted and applied to the ratio of the judgment in Kamal
Sharma’s case (supra) especially 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 Vs. Ranjit
Singh AIR 2010 Delhi 4 (DB) and the reference to Kamal Sharma’s
case is to Kamal Sharma Vs. Blue Coast Infrastructure Development
Pvt. Ltd. 2016 SCC Online Delhi 2261.
2. The facts relating to the suit, for the purpose of this Reference, are that
th
the plaintiff, on or about 6 August, 2009 instituted this suit for the
reliefs of (a) declaration that she is the owner and the person entitled to
possession of the garage on the right side drive-way of property No.C-
63, Friends Colony (East), New Delhi; (b) mandatory injunction
directing the defendants No.1 to 3 to remove their lock from the said
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 2 of 123



garage; (c) permanent injunction restraining the defendants No.1 to 3
from interfering in the plaintiff‘s use and enjoyment of the said garage;
(d) declaration that the plaintiff is entitled to the area on the portions
above the second floor in the suit property that had been encroached
upon by the defendants; (e) mandatory injunction directing the
defendants to remove and demolish the unauthorised construction and
encroachment on the rear side of the second floor of the property; (f)
recovery of mesne profits of Rs.4,80,000/- and future mesne profits;
and, (g) recovery of damages in the sum of Rs.15 lakhs. The total
valuation of the suit for the purpose of jurisdiction for all the reliefs
claimed in the plaint was put at Rs.47,95,530/- and court fees of
Rs.56,231/- was paid on the plaint.
3. As per Section 5(2) of the Delhi High Court Act, 1966 (HC Act) as it
stood at the time of institution of this suit in the year 2009, this Court,
in respect of the territories for the time being included in the Union
Territory of Delhi also had ordinary original civil jurisdiction in every
suit, the value of which exceeded Rs.20 lakhs. Accordingly, this suit
having total valuation exceeding Rs.20 lakhs was instituted in this
Court.
4. The defendants filed a written statement, in which qua the valuation of
the suit for the purposes of jurisdiction it was inter alia pleaded that the
plaintiff had not paid proper court fees and had invoked the pecuniary
jurisdiction of this Court by joining the valuation for different reliefs
and when the valuation of none of the reliefs was above Rs.20 lakhs,
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 3 of 123



being the minimum pecuniary jurisdiction of this Court and thus the
plaint was liable to be rejected.
5. No issues have been framed in the suit as yet.
6. It appears that another suit being CS(OS) No.3241/2011 filed by the
defendant No.2 Smt. Geeta Gandhi with respect to the same property
rd
was also pending consideration in this Court. Vide order dated 23
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
th
(Amendment Act) which came into force on 26 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
th
whereof exceeded Rs.2 crores. Thus, w.e.f. 26 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.‖

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 4 of 123



th
8. In exercise of the aforesaid power, Hon‘ble the Chief Justice, on 24
November, 2015 passed the following Office Order:
― HIGH COURT OF DELHI, NEW DELHI
OFFICE ORDER
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
Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts Ordinance, 2015) , pending in
the Delhi High Court on the Original Side, excepting those cases
in which final judgments have been reserved, be transferred to
the jurisdictional subordinate courts.
The transfer of cases to the subordinate courts shall commence
from today, i.e. 24.11.2015.
Sd.
Registrar General
24.11.2015‖

9. This suit, before the date of the aforesaid Office Order, was listed on
th th
29 October, 2015 when it was adjourned to 12 January, 2016. On
th
12 January, 2016, though in accordance with the aforesaid Office
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 5 of 123



Order this suit ought to have been transferred to the Subordinate Courts
but was not so transferred because transfer of CS(OS) No.3241/2011
with which it had been consolidated had been deferred. Accordingly,
rd
both suits were ordered to be listed on 23 March, 2016.
10. However, CS(OS) No.3241/2011, valuation whereof also was of less
th
than Rs.2 crores, was transferred to the Subordinate Courts on 8
February, 2016 itself.
th
11. The plaintiff, on 19 March, 2016 filed IA No.3857/2016 for
amendment 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.
rd
13. Both applications came up before the learned Joint Registrar on 23
March, 2016 when they were ordered to be placed before the Hon‘ble
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 6 of 123



Judge and on which date the order leading to constitution of this Bench,
as aforesaid was passed.
14. We now proceed to notice Mahesh Gupta and Kamal Sharma , finding
inconsistency wherein reference to this ‗larger Bench‘ has been made.
Division Bench of this Court in Mahesh Gupta held that once the Court
does not have pecuniary jurisdiction to try the matter then it cannot
entertain an application and pass the orders allowing an application for
amendment of a plaint to bring the suit plaint within the pecuniary
jurisdiction of this Court. However a learned Single Judge of this Court
in Kamal Sharma supra, after noticing Mahesh Gupta supra and
relying on Lakha Ram Sharma Vs. Balar Marketing Pvt. Ltd. (2008)
17 SCC 671 and Mount Mary Enterprises Vs. Jivratna Medi Treat
Pvt. Ltd. (2015) 4 SCC 182, entertained and allowed the application for
amendment of the plaint to bring the suit within the pecuniary
jurisdiction of this Court. Holding that the single judge in Kamal
Sharma was bound by judgment of Division Bench in Mahesh Gupta ,
the reference order dated 27.04.2016 has been made.
15. We may in this respect notice that another leaned Single Judge of this
Court in Sharada Nayak Vs. V.K. Shunglu 2016 SCC Online Del 2498
has also since held that the application for amendment of plaint to
bring the suit within the minimum pecuniary jurisdiction of this Court
can be entertained. FAO(OS) No.164/2016 filed thereagainst is found
to be pending before the Division Bench of this Court and further
th
proceedings in the suit have been stayed by order dated 26 May, 2016
therein.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 7 of 123



16. Finding the question to be arising in a number of cases, we have also
deemed it appropriate to hear the counsels on the reference
expeditiously so that the question does not continue to vex different
Benches.
17. Having bestowed our consideration on the matter, we are of the view
that even after coming into force of the Amendment Act and the Office
th
Order dated 24 November, 2015 supra, this Court can entertain and
hear application for amendment of plaint in a suit which in terms of the
aforesaid Office Order has been administratively ordered to be
transferred to the subordinate Courts and where this Court finds
(applying the principles of amendment) the amendment enhancing the
valuation of the suit for the purposes of pecuniary jurisdiction to be
necessary for purpose of determining the real question in controversy,
this court has jurisdiction to allow the said amendment. Our reasons for
holding so are as under:
(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
th
Amendment Act on 26 October, 2015, was the High Court of
Delhi.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 8 of 123



(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 Vs. 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 pursued
would get preserved till the said right is to be ultimately
examined. In the event of such preservation of the future
remedy having come into existence and got crystallized, that
would date back to the date of origin when the so-called vested
right commenced, that then and then only it can be held that the
said right became a vested right and it is not defeated by the law
that prevails at the date of its decision or at the date of
subsequent filing of the claim. One other fundamental principle
laid down which is to be borne in mind is that even such a
vested right can also be taken away by a subsequent enactment
if such subsequent enactment specifically provides by express
words or by necessary intendment. In other words, in the event
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 9 of 123



of the extinction of any such right by express provision in the
subsequent enactment, the same would lose its value.‖ Notice
may also be taken of Rajesh D. Darbar Vs. Narasingrao
Krishnaji Kulkarni (2003) 7 SCC 219 where it was held
―subsequent events in the course of the case cannot be
constitutive of substantive rights enforceable in that very
litigation….but may influence the equitable jurisdiction to
mould reliefs. Conversely, where rights have already vested in a
party, they cannot be nullified or negated by subsequent events
save where there is a change in the law and it is made applicable
at any stage….Courts of justice may, when the compelling
equities of a case oblige them, shape reliefs - cannot deny rights
- to make them justly relevant in the updated circumstances.
Where the relief is discretionary, Courts may exercise this
jurisdiction to avoid injustice….Where a cause of action is
deficient but later events have made up the deficiency, the Court
may, in order to avoid multiplicity of the litigation, permit
amendment and continue the proceeding, provided no prejudice
is caused to the other side. All these are done only in
exceptional situations and just cannot be done if the statute, on
which the legal proceeding is based, inhibits, by its scheme or
otherwise, such change in the cause of action or relief. The
primary concern of the Court is to implement the justice of the
legislation…..There can be no quarrel with the
proposition….that a party cannot be made to suffer on account
of an act of the Court.‖
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 10 of 123



(D) A distinction in this regard has also been made between a
procedural right and a substantive 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 Vs. 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 held that the repealing provision did not take away the
right with respect to a pending action and the proceeding before the
Munsif to be maintainable notwithstanding the repeal.
(E) Seen in this light, the Amendment Act appeared to us to be
prospective in its nature and not retrospective and thus not affecting
the suits instituted prior to the coming into force thereof. It appeared
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 11 of 123



that the suits, valuation whereof for the purposes of jurisdiction was
in excess of Rs.20 lakhs and which as per the law in force at the time
of institution were filed in this Court, even after coming into force of
the Amendment Act were to continue and would have continued in
this Court, inspite of their valuation being less than Rs.2 crores but
for Section 4 thereof which empowered Hon‘ble the Chief Justice to
transfer any suit or other proceeding pending in this Court
immediately before the commencement of the Amendment Act to
such subordinate Courts as would have jurisdiction to entertain such
suit had the same been instituted post coming into force of the
Amendment Act.
(F) Thus seen, it appeared that this Court, at the time of
institution of this suit as well as after the coming into force of the
Amendment Act, continued to have jurisdiction to try the suit; that
it was not as if this Court by way of the Amendment Act lost its
pecuniary jurisdiction to try the suits instituted prior to coming into
force of the Amendment Act and the valuation whereof for the
purposes of jurisdiction though more than Rs.20 lakhs, was less than
Rs.2 crores. Transfer of the pending suits is in terms of the
th
notification dated 24 November, 2015 read with the power
conferred on the Chief Justice under Section 4 of the Amending Act.
(G) However we find that earlier, when the minimum
pecuniary jurisdiction of this Court was raised from over
Rs.1,00,000/- to over Rs.5,00,000/- vide Delhi High Court
Amendment Act, 1991 containing identical language, a Division
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 12 of 123



Bench of this Court, in Delhi High Court Bar Association Vs.
Hon’ble Chief Justice, High Court of Delhi (1993) 50 DLT 532,
dealing with a challenge to Section 4 of the then Amendment Act
similarly authorising the Chief Justice with respect to pending suits
and the Office Order of the Chief Justice transferring certain
category of pending suits, to have held i) that but for Section 4 of the
Amendment Act, 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 Punjab Courts Act, 1918; vi) a change of forum is a change of
procedural law and not a substantive law; vii) though a right of
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 13 of 123



appeal is a substantive right which vests on date of institution of lis
but the forum where such appeal could be lodged was a procedural
matter.
(H). We may in this respect also notice that Supreme Court
recently in Ramesh Kumar Soni Vs. State of Madhya Pradesh
(2013) 14 SCC 696 also held that any amendment shifting the forum
of trial, on principle is retrospective in nature in the absence of any
indication in Amendment Act to the contrary and that no vested right
of forum of trial could be claimed. It was further held that
amendments relating to procedure operate retrospectively subject to
the exception that whatever be the procedure which was correctly
adopted and proceedings concluded under old law, the same cannot
be re-opened for the purpose of applying new procedure.
(I). Without going into the correctness of the view taken by the
Division Bench of this Court in judgment supra on interpretation of
Section 5(2), of this Court ceasing to have jurisdiction with respect
to pending proceedings and Section 4 saving the same, even as per
the said view this Court did not cease to have jurisdiction with
respect to pending suits on coming into force of Amendment Act, till
the Chief Justice took the decision.
(J) Notice may next be taken of the difference between
minimum pecuniary jurisdiction of a Court and maximum pecuniary
jurisdiction of the Court. While a Court is said to be not having
jurisdiction to try a suit above its maximum pecuniary jurisdiction,
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 14 of 123



the converse is not true. A Court cannot be said to be not having
jurisdiction over suits below its minimum pecuniary jurisdiction.
Reference in this regard can be made to V. Ramamirtham Vs. Rama
Film Service AIR 1951 Madras 93 (FB) where it was held in the
lead judgment that while Section 15 of the CPC enjoins the
institution of a suit in the Court of the lowest grade competent to try
it, it does not oust the jurisdiction of the Court of a higher grade;
even if the Court of a higher grade tries and disposes of a suit which
could have been instituted in a Court of a lower grade, the decision
rendered is not without jurisdiction and is not a nullity. Viswanatha
Sastri, J. in his concurring opinion observed that the object of
Section 15 CPC is only to prevent superior 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 Vs. 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 Vs. 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 15 of 123



jurisdiction of this Court under Section 5(2) is not to be understood
differently. We may in this regard refer to Bakshi Lochan Singh
Vs. 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
respect to the suits filed thereunder as Section 24 of the Punjab
Courts Act provided that the Court of the District Judge shall be
deemed to be the Principal Civil Court of Original Jurisdiction for
Delhi and there cannot be two Principal Civil Courts of Original
Jurisdiction. Negativing the said contention the Division Bench held
that in view of the non obstante clause contained in Section 5(2), the
Court of the District Judge ceased to remain the Principal Civil
Court of Original Jurisdiction with respect to the suits value whereof
was in excess of that prescribed in Section 5(2).
(L) Notice may further be taken of Section 21 of the CPC, sub-
section (2) whereof provides that 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, before settlement of issues and unless there has
been a consequent failure of justice and which suggests that the
outcome of a suit above the minimum pecuniary jurisdiction of a
Court also cannot be said to be a nullity or without jurisdiction,
unless there has been a ―consequent failure of justice‖. Supreme
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 16 of 123



Court in Kiran Singh Vs. Chaman Paswan AIR 1954 SC 340 was
concerned with a situation where the appeal was heard by the
District Court instead of by the High Court. The argument, that the
right of appeal was a valuable one and that deprivation of the right to
have the appeal heard by the High Court constituted prejudice, was
held to be based on a misconception. It was held that the right of
appeal though is a substantive right and its deprivation is a serious
prejudice but no prejudice had been caused because in hearing of the
appeal by the District Court, the right of appeal had been enlarged,
with the right of second appeal to the High Court which was
otherwise not available also becoming available. It was further held
that the prejudice must be something other than the appeal being
heard in a different forum. It was yet further held that prejudice in
Section 11 of the Suits Valuation Act, 1887 with which the Supreme
Court was concerned in that case does not include errors in findings
on question of fact and that prejudice on the merits must be directly
attributable to valuation and an error in a finding of fact reached 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.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 17 of 123



(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 of pecuniary jurisdiction cannot be
entertained by this Court after the coming into force of the
Amendment Act, if we may respectfully say so, fell in error in
reasoning that ―the Court which does not have jurisdiction to try the
matter would have no jurisdiction to pass any orders which affect the
rights of the parties‖ and that ―the orders which are passed by a
Court which has no jurisdiction to determine the matter, are without
jurisdiction and, therefore, of no effect and purport‖ and that the
Court ―which does not have pecuniary jurisdiction cannot pass any
orders allowing an application seeking amendment of a plaint to
bring the suit plaint within the pecuniary jurisdiction of a Court‖.
We have already noted herein above the difference between the
maximum pecuniary jurisdiction and minimum pecuniary
jurisdiction and that the minimum pecuniary jurisdiction does not
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 18 of 123



mean that the Court has no jurisdiction over suits, valuation whereof
for the purposes of jurisdiction is below its minimum pecuniary
jurisdiction. The rule of institution of suit in Courts of minimum
pecuniary jurisdiction under Section 15 of the CPC, as aforesaid, has
to be read along with Section 21 of the CPC.
th
(O) That brings us to the Office Order dated 24 November,
2015 supra and the effect thereof. It needs to be also examined,
whether the said Office Order takes away the jurisdiction of this
Court over matters, which till before its issuance, were within the
jurisdiction of this Court so as to say that this Court would cease to
have jurisdiction to entertain such an application.
(P) In our view, the nature of the power in exercise of which
the said Office Order has been issued, though having its source in
Section 4 of the Amendment Act, is administrative in its essence.
Justice R.C. Lahoti, speaking for this Court in D.P. Bhalla Vs.
Cement Corporation of India Ltd 58 (1995) DLT 188 concerned
with a similar Office Order issued pursuant to the Delhi High Court
(Amendment) Act, 1991 enhancing the minimum pecuniary
jurisdiction of this Court from earlier existing of Rs.1 lakh and
above to Rs.5 lakhs and above, held that the Office Order has to be
given an object oriented interpretation; cases in which issues have
been framed means the cases which are ripe for trial on merits; if
only preliminary issues have been framed and not all the issues
arising for decision in the suit, it cannot be retained in the High
Court for it cannot be deemed that it was ripe and ready for trial. It
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 19 of 123



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 Vs. Union of India 1997 SCC Online HP 38 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 Act and thus the Amendment Act did not provide for
automatic transfer of any proceeding and if any proceedings were to
be transferred on the basis of the amendments, an order had to be
passed by the Chief Justice and without which order no proceedings
could be transferred. It was further observed that the Amendment
Act did not take away the jurisdiction of the High Court to deal with
any matter in which the value was below that mentioned in the
Amendment Act and did not deprive the High Court of its
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 20 of 123



jurisdiction to deal with any matter irrespective of the value of the
subject matter. It was held that even if a proceeding of a lesser value
is pending before a Subordinate Court, it is always open to the High
Court to withdraw such proceedings and to dispose of the same.
(R) The Office Order with which we are concerned also directs
the suits below the enhanced minimum pecuniary jurisdiction of this
th
Court ―to be transferred‖ and the transfer to commence from 24
November, 2015. The language thereof is also indicative of this
Court not becoming functus officio with respect to suits below its
minimum pecuniary jurisdiction on the issuance thereof because the
Office Order requires further steps to be taken for the said transfers.
In fact, the order of transfer in itself is an exercise of jurisdiction
over the said suits, again indicating that on the issuance of the Office
Order, this Court did not become functus officio. Till the suit is so
transferred, this Court would continue to have jurisdiction.
(S) Such transfer, we may notice is in the nature of ―transfer of
business‖ within the meaning of Section 150 of the CPC which was
invoked by the Full Bench of this Court in Arjan Singh Vs. Union
of India ILR (1973) 2 Del 933 in the context of creation of original
jurisdiction of this Court for the first time vide the High Court Act
and the pending proceedings. The same also does not speak of the
court from which business is transferred losing its powers.
(T) Notice at this stage may be taken of Jagdish Prasad
Sharma Vs. Standard Brands Ltd. (2006) 135 DLT 698 in the wake
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 21 of 123



of enhancement of minimum pecuniary jurisdiction of this Court
from over Rs.5 lakhs to over Rs.20 lakhs. The same was effected
vide Delhi High Court Amendment Act, 2001 passed by the
Legislative Assembly of Delhi. On challenge thereto being made, a
bench of five judges of this Court in Geetika Panwar and Delhi
High Court Bar Association Vs. 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 Section 4 permitted Hon‘ble the
Chief Justice to not necessarily transfer all suits and the words
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 22 of 123



therein ―may transfer any suit‖ are indicative of the Chief Justice
being empowered to transfer any category of suits, while retaining
another category of suits in this Court. If the intent of Section 4 of
th
the Amendment Act or of the Office Order dated 24 November,
2015 had been to transfer the suits, the valuation whereof for the
purposes of jurisdiction was Rs.2 crores or less, without any further
act to be done by the Court the words used would have been that the
suits ―shall stand transferred‖ as were used in Section 16 of the High
Court Act with respect to transfer of pending proceedings to this
Court on creation vide Section 5(2) of the Original Civil Jurisdiction
of this Court. The Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 also uses the words ―shall stand transferred‖.
Supreme Court in Allahabad Bank Vs. Canara Bank (2000) 4 SCC
406 (overruled on another point in Andhra Bank Vs. Official
Liquidator (2005) 5 SCC 75) and in Hara Parbati Cold Storage
Pvt. Ltd. Vs. UCO Bank (2000) 9 SCC 716 explained that the same
indicates automatic transfer, with the High Court being required
only to perform the ministerial act of transferring the papers to the
Tribunal. Similar were the words used in Section 8 of the Andhra
Pradesh Land Grabbing (Prohibition) Act, 1982 which came up for
consideration before the Supreme Court in Konda Lakshmana
Bapuji Vs. Government of Andhra Pradesh (2002) 3 SCC 258.
(V) We find that the learned Single Judge in Kamal Sharma
supra has reasoned that transferring the suit, requiring the plaintiff to
argue the application for amendment of the plaint before the Court
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 23 of 123



of the District Judge / Additional District Judge and the District
Judge / Additional District Judge to, in the event of allowing the
amendment, return the plaint for being filed in this Court and
retaining the rest of the file in the District Court would be injurious
to the substantial cause of justice and which reasoning we fully
endorse.
(W) This Court in Aviat Chemicals Pvt. Ltd. Vs. Magna
Laboratories (Gujarat) Pvt. Ltd. AIR 2006 Delhi 115 was
concerned with a petition under Section 24 of the CPC for transfer
of suit instituted in the Court of the District Judge, within whose
pecuniary jurisdiction the suit fell at the time of institution, to 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 24 of 123



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 held that judicial discretion is to be
exercised and provisions of a statute are to be interpreted in a
manner which would further the cause of justice, rather than in the
manner which would frustrate the same. Finding that requiring the
plaint to be returned and thereafter being filed in this Court would
entail loss of time and which could be saved by exercise of power
under Section 24 of the CPC, it was held that it is difficult to accept
the reasoning that loss of pecuniary jurisdiction before a Court,
whether by virtue of operation of law or by act of the parties covered
by an order of the Court, should be permitted to vest parties with
different consequences in law, particularly when one of such
consequences could be adverse to the very system of expeditious
disposal of suits.
(X) Notice in this regard may also be taken of the fact that as
far as the Union Territory of Delhi is concerned, the law with respect
to a large category of suits, valuation whereof is permitted to be
done by the plaintiff who is dominus litis vests an election in the
plaintiff to invoke the jurisdiction, either of the Court of the Civil
Judge or of the District Judge or of this Court depending upon the
valuation given of the reliefs claimed in the suit. This Court in
Govind Gopal Vs. Banwari Lal AIR 1983 Del 323 held that Section
7(v) of the Court Fees Act, 1870 gives a discretion to the plaintiffs
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 25 of 123



to put their own valuation on the relief for the purpose of court fees.
The Full Bench of the High Court of Patna also in Md. Alam Vs.
Gopal Singh AIR 1987 Patna 156 held that in suits falling under
Section 7(iv) of the Court Fees Act, irrespective of the various sub-
clauses thereof, the estimation of the relief by the plaintiff has to be
ordinarily accepted, unless the plaintiff is found to have manifestly
and deliberately undervalued or underestimated the same.
(Y) When the law vests the plaintiff with such an election, we
are also of the view that such a plaintiff who has opted to invoke the
jurisdiction of this Court cannot be deprived of electing to retain the
suit in this Court and which suit otherwise by virtue of the
Amendment Act and the Office Order aforesaid would stand
transferred to the Subordinate Courts. Supreme Court in
Management Committee of Montfort Senior Secondary School Vs.
Vijay Kumar (2005) 7 SCC 472 held that where there are plural or
multiple remedies 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 26 of 123



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 jurisdiction of a Court is no
ground for refusing that amendment and the amendment was
allowed. Reference in this regard may also be made to Dr.
Subramaniam Swamy Vs. Ramakrishna Hegde (1990) 1 SCC 4
where also it was held that the plaintiff as dominus litis has a right to
choose the Court and the defendant cannot demand that the suit be
tried in a particular Court convenient to him and to Nahar Industrial
Enterprises Ltd. Vs. Hong Kong and Shanghai Banking
Corporation (2009) 8 SCC 646 also holding that if a plaintiff is
entitled to maintain an action in two different forums, he may
choose one of them being dominus litis . The same is the view in the
illuminating judgment of Justice H.L. Anand of this Court in Hans
Raj Kalra Vs. Krihan Lal Kalra (1976) ILR 2 Delhi 745 holding
that Section 7(iv) of the Court Fees Act gives a right to the plaintiff
to place any valuation that he likes on the relief that he seeks and
that the Court has no power to interfere with the plaintiff‘s
valuation.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 27 of 123



(Z) We have also perused Anil Goel Vs. Sardari Lal 75 (1998)
DLT 641 noticed in Mahesh Gupta supra and where a learned
Single Judge of this Court without discussion and relying on Lok
Kalyan Samiti Vs. Jagdish Prakash Saini (1995) 33 DRJ 290 held
that amendment of plaint to raise valuation of the suit for the
purposes of jurisdiction and court fees so as to bring the suit within
the jurisdiction of the Court is likely to defeat the provisions of the
Delhi High Court (Amendment) Act, 1991 and could not be allowed.
A perusal of Lok Kalyan Samiti supra shows that the reason given
therein also for refusing the amendment was that it would defeat the
provisions of the Amendment Act, 1991 and was not found
necessary for adjudication of the questions in controversy in the suit.
In our view, the said two judgments are not good law, in view of
Lakha Ram Sharma supra.
18. We therefore hold that the Amendment Act or the Office Order dated
th
24 November, 2015 do not come in the way of this Court considering
the applications for amendment of the plaint for enhancement of the
valuation of the suit for the purposes of pecuniary jurisdiction.
19. We accordingly answer the reference as under:
The judgment in Mahesh Gupta supra to the extent holding that this
Court, upon enhancement of its minimum pecuniary jurisdiction, ceases
to have jurisdiction to entertain an application 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 28 of 123



th
Order dated 24 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-
RAJIV SAHAI ENDLAW
(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.
22. There may be a repetition of facts and discussion on law here but, for
completion of narration, it is deemed essential and, therefore, the reader
of this separate opinion may have to bear with it. Some of the
discussion hereunder has become necessary as I feel obliged to set out
elaborately the reasons why I am not agreeing with the approach to
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 29 of 123



certain legal issues mentioned in the majority opinion . I am conscious
that the question as to whether the amendment application moved by
the plaintiff of the case, on its merits, is allowable or not is to be
considered by the appropriate court and not by the larger bench called
upon to answer the reference. But discussion on the law concerning
amendment of pleadings has been necessitated because of certain
observations in the majority opinion.
THE REFERENCE

23. The issue referred to this larger bench constituted by Hon‘ble the Chief
Justice, by her order dated 24.05.2016, in the wake of observations of a
learned single Judge of this court recorded in order dated 27.04.2016
on the file of CS(OS) 1416/2009, Subhashini Malik Vs. S.K. Gandhi
and Ors. revolves around the question as to whether the judgment of a
division bench of this court in the case reported as Mahesh Gupta Vs.
Ranjit Singh and Ors., AIR 2010 Delhi 4 had been rightly interpreted
and applied to the ratio of the order dated 01.04.2016 of a learned single
judge of this court in Kamal Sharma and Ors. Vs. Blue Coast
Infrastructure Development Pvt. Ltd. and Ors . in CS (OS) 176/2015
[ 2016 (229) DLT 438 : 2016 (156) DRJ 349] . The reference order
succinctly posits the question for being addressed to be ― as to whether a
court which does not have pecuniary jurisdiction to entertain the plaint
suit ...can entertain an application to amend the plaint to bring the
plaint within the pecuniary jurisdiction of the court ...‖
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 30 of 123



FACTUAL MATRIX
24. It will be apposite at the outset to take note of the background factual
matrix of the case from which the present reference arises, albeit
briefly.
25. The litigation concerns parts of the property comprised of a plot of land
bearing no.C-63, Friends Colony (East) New Delhi and the
superstructure built thereupon (―the subject property‖). The said
property was originally owned by Jaswant Singh Uppal. It appears
that, during his life time, the said Jaswant Singh had entered into a
collaboration agreement dated 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 31 of 123



Uppal devolved on his wife Pritam Kaur Uppal. It is stated that, by
registered gift deed dated 07.09.2001, Pritam Kaur Uppal transferred
her right, title and interest in the ground floor portion of the property in
favour of her son, Raminder Singh Uppal. The plaintiff states that
Raminder Singh Uppal and Pritam Kaur Uppal had entered with her
into an agreement to sell on 26.03.2009, duly registered with the Sub-
Registrar, in respect of the entire ground floor portion with front lawn
and back court yard besides exclusive ownership of the left side
driveway alongwith garage on right side drive way, and a toilet next to
the staircase on the rear side (ground floor portion) with rear half
terrace above second floor and one servant room and bathroom above
the second floor of garage floor (second floor terrace portion) alongwith
one-third undivided and indivisible share in the land underneath
alongwith all fixtures and fittings, etc. in the subject property (described
in entirety as ―the plaintiff‘s property‖), following it up by a proper
transfer through registered sale deed executed on 01.05.2009. The
plaintiff has pleaded that pursuant to the collaboration agreement, the
first and second defendants have been in occupation and possession of
the second floor portion and part of the terrace above the second floor
(the builder‘s share).
26. The civil suit, in the context of which the present controversy arises,
was filed by the plaintiff on 06.08.2009, inter alia , alleging that when
she had gone up to the terrace on the second floor of the property to
secure possession of the rear half, she had learnt that the defendants had
wrongfully and illegally appropriated more than half of the terrace
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 32 of 123



above the second floor, having illegally constructed a wall to encroach
upon a part of her portion of the terrace and having illegally constructed
a roof on the open balcony on the rear side of the second floor merging
it with the second floor over the garage / servant quarter block in
violation of the sanctioned building plans. Reference was made to some
‗false complaints‘ having been lodged by the defendants with the police
on 02.05.2009 with malafide intention to pressurize her against raising
the issue of illegal construction and encroachment and to wrongfully
and dishonestly claim right over the portions which fell into her share.

27. By the above said plaint, the plaintiff prayed for the following reliefs :
―...(a). Pass a decree of declaration to declare that the 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 33 of 123



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 the rear side
of the second floor on the said property, and may be pleased to
appoint a Local Commissioner to make a partition and separation
of the said terrace above the second floor in the main building by
meters and bounds according to the rights of the plaintiff as
declared in the decree and the plaintiff may be put into possession
of her share as may be found to be in possession of the defendants,
or either of them;
(e). Pass a decree of mandatory injunction directing the defendants
no.1 to 3, jointly and severally, to remove and demolish the
unauthorised construction and encroachment on the rear side of the
second floor of the said property.
(f). Pass a decree of mesne profits of Rs.4,80,000/- (Rupees Four
Lakhs eighty thousand only) in favour of the plaintiff and against
the defendants with future mesne profits @ Rs.5,000/- (Rupees Five
thousand only) per day that the defendants or either of them
continue to remain in unlawful use, occupation or possession of any
share of the plaintiff in the terrace above the second floor in the
said property.
(g). Pass a decree of damages of Rs.15,00,000/- (Rupees fifteen
lakhs only) in favour of the plaintiff and against the defendant no.1
to 3, jointly and severally, for wrongful and illegal denial to the
plaintiff of access to, and use and enjoyment of, the garage on the
right side driveway of the said property;
(h). Pass a decree of costs of the suit in favour of the plaintiff and
against the defendants 1 to 3, jointly and severally...‖
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 34 of 123



28. It is pertinent to note here that in (paragraph 41 of) the plaint, as
originally presented, the averments germane to the reference were made
as under :
―41. The value of the suit for the purposes of court fee and
jurisdiction is as under :-
a). For the relief of declaration of the plaintiff‘s rights, title and
interest in the garage on the right side driveway of the Ground
Floor portion of the said property, the suit is valued at
Rs.20,00,000/- and ad valorem court fee of Rs.21,864/- has been
paid;
b). For the relief of mandatory injunction directing the defendant
no.1 to 3 to remove their lock from the garage on the right side
driveway on the Ground floor portion of the said property, the suit is
valued at Rs.200/- and ad valorem court fee of Rs.20/- has been
paid.
c). For the relief of 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/-,
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 35 of 123



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 measurements of the said terrace and
determination of the area encroached upon by the defendants.
e). For the relief of mandatory injunction direcgting the defendants
1 to 3 to demolish the unauthorized construction carried out in
covering the rear balcony on the second floor of the said property,
the suit is valued at Rs.200/- and ad valorem court fee of Rs.20/- has
been paid.
f). For mesne profits of Rs.4,80,000/- (Rupees Four lacs eighty
thousand only), the suit is valued at Rs.4,80000/- and ad valorem
court fee of Rs.7,030/- has been paid.
g). For recovery of damages of Rs.15,00,000/- (Rupees fifteen lacs
only), the suit is valued at Rs.15,00,000/- and ad valorem court fee
of Rs.16,984/- has been paid.
Thus, the total valuation of the suit for the purposes of jurisdiction is
Rs.47,95,530/- and court fee of Rs.56,231/- has been paid..‖
29. The suit was entertained and summons on the plaint with notice on the
application under Order 39 Rules 1 and 2 of the Code of Civil
Procedure, 1908 (CPC) were issued to the defendants by order dated
07.08.2009. By way of an ad-interim exparte order, also passed on
same date, it was directed that the defendants shall not part with the
possession of the terrace portion which was disputed.
30. A perusal of the proceedings recorded over the period reveals that the
defendants eventually appeared and filed written statement. The first
defendant (S.K. Gandhi) having died, upon application under Order 22
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 36 of 123



Rule 4 CPC being moved, he has since been substituted by his legal
representatives. Since the dispute related to the share in the terrace
floor, on an application under Order 26 Rule 9 CPC (IA
No.9887/2009), an inspection under the supervision of a local
Commissioner was directed to be carried out by order dated 14.12.2011.
The proceedings have been hanging fire ever since on account of
various interim applications including several moved under Order 6
Rule 17 CPC for amendment of the pleadings. Issues are yet to be
settled and the trial yet to commence.

31. Pertinent to mention here that, on 25.02.2014, it was noted by the
learned single judge then in seisin of the case that another CS(OS)
3241/2011, Geeta Gandhi Vs. Subhashini Malik and Ors. , had since
been preferred, by the second defendant herein, impleading the plaintiff
of this case and another as defendants. An application (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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 37 of 123



(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 civil jurisdiction in every suit the
value of which exceeds rupees twenty lakhs.‖
33. It may also be noted here that the subject of constitution, jurisdiction,
hierarchy, distribution of business etc., inter alia , of subordinate civil
courts in Delhi is governed and regularized by the provisions contained
in the Punjab Courts Act, 1918, as extended to Delhi by notification
published in Gazette of India on 11.04.1964. Section 24 of this
enactment declares that the court of the District Judge, shall be deemed
to be the District Court or the principal civil court of original
jurisdiction in the District. Section 25 of Punjab Courts Act (as in force
in Delhi), at the time of presentation of plaints in the two suits referred
to above, read as under:
―Section 25 - Original jurisdiction of District Judge in suits
Except as otherwise provided by any enactment for the time being in
force, the court of the District Judge shall have jurisdiction in every
original civil suit the value of which does not exceed rupees twenty
lakhs.‖

34. Whilst the above mentioned two civil suits were pending before the
learned single bench of this court, Delhi High Court (Amendment) Act,
2015 (Act 23 of 2015) came to be enacted and brought into force with
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 38 of 123



effect from 26.10.2015, in terms of the Notification 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 the
Gazette of India Extraordinary Part-II. The relevant provisions of the
amending Act are as under :
―2. In sub-section (2) of section 5 of the Delhi High Court Act,
1966, for the words ―rupees twenty lakhs‖, the words ―rupees two
crore‖ shall be substituted.
3. In the Punjab Courts Act, 1918, as in force in the National
Capital Territory of Delhi, in section 25, for the words ‗rupees
twenty lakhs‘, the words ‗rupees two crore‘ shall be substituted.
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.‖
35. In exercise of the powers conferred 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 39 of 123



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 Commercial
Courts, Commercial Division and commercial Appellate Division
of High Courts Ordinance, 2015), pending in the Delhi High Court
on the Original Side, excepting those cases in which final
judgments have been reserved, be transferred to the jurisdictional
subordinate courts.
The transfer of cases to the subordinate courts shall commence
from today, i.e. 24.11.2015..‖

36. Clearly, when these two civil suits were instituted, having regard to the
valuation put by the respective plaintiffs, they were properly presented
and maintained invoking ordinary original pecuniary jurisdiction of the
court. Further, both these suits do not fall in the category of
―commercial disputes‖ within the meaning of the expression used in
Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015 (for short, ―the Commercial Courts
Act‖). As a consequence of the change in the pecuniary jurisdiction
and upon issuance of the notification by Hon‘ble the Chief Justice on
24.11.2015, both suits as originally presented, now fall within the
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 40 of 123



ordinary pecuniary jurisdiction of Court of District Judge and thus, are
to ― be transferred to the jurisdictional Subordinate Courts ‖, since they
do not fall in the exception.
37. It be noted here that in the course of proceedings arising out of the other
civil suit, CS (OS) 3241/2011, Geeta Gandhi (plaintiff in the said case),
inter alia , had moved certain applications including ‗ to change the
pecuniary jurisdiction value ‘ in respect of the relief in the nature of
cancellation and rectification of certain sale deed. While the
amendment applications appear to have been withdrawn, two of the
interim applications viz. IA No.1603/2016 (for modification of order
dated 08.01.2016) and IA No.1860/2016 (for refund of excess of court
fees paid) came up before the learned single bench on 08.02.2016. It
appears from the copy of the order passed by the court on the said date
(08.02.2016), that the first said application (IA 1603/2016) concerns the
issue of incorrect valuation and / or incorrect payment of court fee. The
learned single Judge by his order dated 08.02.2016 disposed of the said
application as having been rendered infructuous ‗ for the time being ‘
though reserving liberty to the defendants (which includes Subhashini
Malik, the plaintiff herein) to raise the issue about valuation and / or
court 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 41 of 123



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 12.01.2016, the civil suit
at hand had been earlier adjourned for further proceedings to
23.03.2016 to be taken up with the other civil suit [CS (OS)
3241/2011] upon the parties pointing out that both had been
consolidated, transfer of the connected suit having been deferred. For
reasons which cannot be fathomed from the record, the civil suit of
Geeta Gandhi [CS (OS) 3241/2011] was taken up on 08.02.2016 and
transferred to the District Court thereby delinking it from the present
case. Pertinently, by order dated 08.02.2016, the next date
(23.03.2016), earlier fixed in the said case [CS (OS) 3241/2011], was
noted but cancelled.
39. On the close heels of the transfer of the civil suit of Geeta Gandhi,
CS(OS) 3241/2011 by order dated 08.02.2016, two applications came
to be filed in the present civil suit, one dated 08.03.2016 (IA
No.3856/2016) by Geeta Gandhi, the second defendant and the other
dated 19.03.2016 (IA No.3857/2016) of the plaintiff Subhashini Malik.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 42 of 123



It is these two applications which were taken up by the learned single
Judge on 27.04.2016 leading to the referral order.
40. By her application (IA 3856/2016), Geeta Gandhi (second defendant in
the case) prayed for transfer of this civil suit also to the jurisdictional
court under the District & Sessions Judge (South East) on the same
lines as her civil suit [CS (OS) 3241/2011], had been transferred by
order dated 08.02.2016. By her application (IA 3857/2016), the
plaintiff of the case, prayed for liberty to amend the plaint under Order
6 Rule 17 of the CPC, in particular, para 41(d) to instead read as under :
― ...41(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 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.1,70,00,000/-, being the market
value of the area of 163 sq. ft. approx. Encroached by the
defendants and ad valorem court fee of 1,59,580/- has been
paid. The plaintiff undertakes to pay 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 :
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 43 of 123



―...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 vs.
Intas Pharmaceuticals & Ors., 227 (2016) DLT 296...‖
42. While making the reference to the larger bench, the learned single
Judge observed thus :

― ..3. In my opinion, the last line of para 7 of the judgment of the
Division Bench in the case of Mahesh Gupta (supra) is clear that
once the court does not have pecuniary jurisdiction to pass any
order then no order can be passed for allowing an application
which seeks amendment of the plaint to bring the suit plaint within
the pecuniary jurisdiction of a court. This judgment is binding on
this court.
4. Counsel for the plaintiff to argue to the contrary has
placed reliance upon the recent judgment of a learned Single
Judge of this court in the case of Kamal Sharma & Ors. vs. Blue
Coast Infrastructure Development Pvt. Ltd. and Ors., in CS (OS)
No.176/2015 decided on 01.04.2016 wherein the learned Single
Judge had allowed the application for amendment of the plaint
filed after passing of the Delhi High Court Amendment Act, 2015.
The learned Single Judge in Kamal Sharma‘s case (supra) has
referred to the ratio as drawn in Mahesh Gupta‘s case (supra) but
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 44 of 123



the learned Single Judge has not emphasised upon the last line of
para 7 which specifically states that the court which does not have
the pecuniary jurisdiction cannot pass an order allowing an
application seeking amendment of the plaint to bring the suit
plaint within the pecuniary jurisdiction of the court.
5. Though, the ratio of the judgment of the Division Bench of
this Court is binding on all subsequent Division Benches as also
on Single Benches of this court, and therefore, the judgment in
Kamal Sharma‘s case (supra) in my respectful opinion clearly is
at direct variance with the ratio of the judgment in Mahesh
Gupta‘s case (supra); especially the last line of para 7 of the
judgment in Mahesh Gupta‘ case (supra); since however, the
learned Single Judge seems to have taken a different view than the
Division Bench of this Court, but by referring to the Division
Bench judgment in the case of Mahesh Gupta (supra), it would be
apposite that the issue itself be referred for decision to the larger
bench of this court as to whether it is the ratio of the judgment in
Kamal Sharma‘s case (supra) which will apply that a court can
allow the application for an amendment of a suit plaint to bring
the suit plaint within the pecuniary jurisdiction although when
the application for amendment is 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.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 45 of 123



(2008) 17 SCC 671 and Mount Mary Enterprises vs. 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
caused to the defendants nor the nature of the suit to undergo a change.
It was submitted that while considering such an amendment, the court is
not expected to go into the merits of the matter and merely because an
amendment may take the suit out of the jurisdiction of a particular
forum is no ground for refusing such amendment to be incorporated. It
is pointed out that this is the spirit keeping which in view a number of
learned single benches of this court have permitted similar
amendments to be incorporated, in some cases with the clear assertion
that the intent and objective of amendment to the valuation was to
retain the case before this court thereby precluding its transfer to the file
of the District Courts on account of change of the pecuniary
jurisdiction by the Amendment Act of 2015. Reliance is placed on
Order dated 16.12.2015 in CS (OS) 2998/2015, Eicher Motors Ltd. Vs.
Saurabh Katar and Ors. [2016 I AD (Delhi) 83]; Order dated
05.01.2016 in CS (OS) 2590/2008, Sanofi Aventis V. Intas
Pharmaceuticals Ltd. and Anr ., [227 (2016) DLT 296]; Order dated
28.03.2016 in CS (OS) 3213/2011, Metal Box India and Anr. V. T.K.
Sehgal and Sons (HUF) & Ors ; Kamal Sharma (supra); and Order
dated 28.04.2016 in CS (OS) 2829/2015, Mrs. Sharada Nayak Vs. Mr.
V.K. Shunglu & Ors . The plaintiff argued that the ruling of the division
bench in Mahesh Gupta (supra) was duly taken note of by the learned
single Judge in Kamal Sharma (supra) and yet a different view was
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 46 of 123



taken facilitating the amendment. It is urged by the learned counsel
for the plaintiff that this court may take a pragmatic approach rather
than a pedantic view.
44. Per contra , the second defendant, by her written submissions, opposing
the prayer for amendment and requesting for the reference to be
accordingly answered, has placed reliance on the view taken by the
division bench of this court in Mahesh Gupta (supra), also referring to
Ms. Sadhna Sharma and Ors. Vs. Prem Lata Gautam and Ors.,
Manu/DE/2937/2005; Pirgonda Hongonda Patil vs. Kalgonda
Shidgonda Patil and Ors., AIR 1957 SC 363: 1957 SCR 595; Hans Raj
Kalra vs. Kishan Lal Kalra and Ors., ILR 1976 Delhi 745; Lok Kalyan
Samiti Vs. Jagdish Prakash Saini and Ors., 1995 (33) DRJ 290; and
Anil Goel Vs. Sardari Lal, 1998 VII AD Delhi 325.
OPINION OF MAJORITY
45. The prime considerations on the basis of which the majority opinion
rests its final conclusions stem from the doctrine 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 Vs. Ram Krishna Hedge, 1990 (1) SCC 4 and Nahar Industrial
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 47 of 123



Enterprises Ltd. Vs. 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 Vs.
Rama Film Service, AIR 1951 Madras 93 (FB) , of Andhra Pradesh
High Court in Kesavarapu Venkateswarlu Vs. Sardharala
Satyanarayana, AIR 1957 Andhra Pradesh 49 and of this court in
Taran Jeet Kaur Vs. G.S. Bhatia, 2009 (108) DRJ 89 , it is observed that
by ordaining that a suit is to be instituted ― in the court of the lowest
grade competent to try it ‖, the law in Section 15 CPC does not oust the
jurisdiction of the court of a higher grade and the proceedings before
such higher forum are not rendered nullity or non-est , pointing out that
exercise of jurisdiction beyond the pecuniary limits prescribed in law
has been saved in the interest of justice in the past, illustratively in
Geetika Panwar Vs. GNCTD, (2002) 99 DLT 840 . Reference is made
in the same context to Bakshi Lochan Singh Vs. Jathedar Santokh
Singh, AIR 1971 Delhi 277 to add that by virtue of Section 5(2) of the
Delhi High Court Act, 1966, this court is in the hierarchy of pecuniary
jurisdiction. The majority view accepts the argument of the plaintiff
that unless prejudice directly attributable to valuation is shown to be the
consequence, the defendant cannot raise objection of ―over valuation or
under valuation‖ under Section 11 of the Suits Valuation Act, 1887 or
to the jurisdiction of the court under Section 21 of CPC.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 48 of 123



48. My brothers on the bench conclude relying, inter alia , upon the rulings
of the Supreme Court in Lakha Ram Sharma (supra) and Mount Mary
Enterprises (supra), that the decisions of learned single Judges in Anil
Goel (supra), Lok Kalyan Samiti (supra) and of the division bench in
Mahesh Gupta (supra) are not good law. In their opinion, the
amendment Act of 2015 is ―prospective in nature‖ and ―thus not
affecting the suits instituted prior to coming into force thereof‖ and
further that the office order issued by the Chief Justice on 24.11.2015 in
exercise of the powers conferred upon her by Section 4 of Delhi High
Court (Amendment) Act, 2015 does not result in the ―automatic
transfer‖ of the pending cases covered by such dispensation nor ―take
away the jurisdiction of the High Court‖ to deal with matters involving
lesser value, not the least rendering this court functus officio . It has
been observed that the power in exercise of which office order dated
24.11.2015 has been issued by Hon‘ble the Chief Justice is, in essence,
―administrative‖ and that the transfer of pending cases in its wake is in
the nature of ―transfer of business‖ within the meaning of the provision
contained in Section 150 CPC, for which reason the court does not
loose its powers to exercise its inherent jurisdiction. Based on the
principles summarized in Manager, VKNM Vocational Higher
Secondary School Vs. State of Kerala, (2016) 4 SCC 216 and Rajesh D.
Darbar Vs. 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 –
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 49 of 123



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
injurious to the substantial cause of justice‖.
50. It appears the order dated 16.12.2015 in Eicher Motors Ltd. (supra)
was the first such order, followed by similar decisions in Sanofi Aventis
(supra), Metal Box India (supra), Kamal Sharma (supra) and Sharada
Nayak (supra).
51. It may be noted here itself that in Eicher Motors Ltd. (supra), the issue
of jurisdiction of the High Court to entertain the application for
amendment of pleadings did not even arise. It was a matter involving
intellectual property rights and a ―commercial dispute‖ attracting the
provisions of the Commercial Courts Act and covered by the directions
of a division bench of this court in order dated 03.12.2015 in WP(C)
11035/2015, titled as Vifor (International) Ltd. Vs. The High Court of
Delhi and WP(C) 11043/2015, titled as Asian Patent Association
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 50 of 123



(Indian Group) Vs. Registrar General, Delhi High Court , whereby it
was directed that :

consideration of the amendment of pleadings was not raised. The
defendant, instead, conceded to the prayer for increase of the valuation
though reserving his right to refute on merits. Pertinent to add that the
claim in the civil suit was for award of damages, the increase in
valuation having been justified on account of enhanced claim attracting
Section 7(i) of Court Fees Act, 1870. Metal Box India (supra), simply
followed Sanofi Aventis (supra). Similarly, Sharada Nayak (supra) is a
decision following the view taken in Kamal Sharma (supra).
53. In Kamal Sharma (supra), reference was made to the ruling of division
bench in Mahesh Gupta (supra) distinguishing it with observations that
it was rendered against the backdrop of the facts that by the order under
challenge in appeal, the learned single Judge in seisin of the civil suit
had directed the return of the plaint on the premise that the total value
of the suit for purposes of jurisdiction had been stated to be Rs.1600/-,
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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 51 of 123



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 jurisdiction
under Section 24 CPC to withdraw from the subordinate Court
any case or proceeding and to try and dispose of the same.

50. ...Insistence on following the procedure - requiring transfer
of the case to the concerned District Court; assignment of the
case to an Additional District Judge; issuance of notice to such of
the parties who do not appear before the Court to whom the case
is assigned, in case they do not appear; fixing the date for
hearing of the amendment application by the transferred Court;
hearing of the application which, if allowed, would result in the
suit not falling within the jurisdiction of the District Court, and
consequential return of plaint to be presented once again before
this Court would immensely prejudice the plaintiffs, who have
been pursuing the present suit since January 2015. In the
meantime, dozens of orders have been passed, eventually leading
to delayed filing of written statements with applications to seek
condonation of delay and an application under Section 8 of the
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 52 of 123



Arbitration & Conciliation Act, 1996. If the procedure, as
insisted upon by the defendants were to be adopted, it would
mean that, eventually, in case the amendment application is
allowed by the transferred Court, the plaintiff would have to re-
serve all the defendants in the suit, and again await their filing of
their written statements and other applications. Such a result
must be avoided, since it can be avoided in law. The hands of this
Court are not tied. The shackles of such procedural bounds can
and should be broken with a view to, eventually, attain speedier
disposal of the case, as no prejudice is caused to the defendants
even if this Court considers the amendment application rather
than transferring the suit along with the amendment application.
Adoption of the procedure insisted upon by the defendants would,
ironically, delay the disposal of the commercial cause, when the
enactment of the Commercial Courts Act and the amendment to
the Delhi High Court Act was intended to lead to speedier
disposal of such commercial causes…‖

55. Need it be noted here that in Kamal Sharma (supra), the learned single
judge while making a departure drew satisfaction from the
distinguishing fact that the application for amendment of plaint had
been moved ― much earlier to the amendment of the Delhi High Court
Act .‖
56. The prime considerations expressed in 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 :
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 53 of 123



“ 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 be taken note of at this stage.
58. Section 7 of the Court Fees Act, 1870 reads as under :
―7. Computation of fees payable in certain suits – The amount of
fee payable under this Act in the suits next hereinafter mentioned
shall be computed as follows :-
for money - (i) In suits for money (including suits for damages or
compensation, or arrears of maintenance, of annuities, or of
other sums payable periodically)- according to the amount
claimed;
x x x
(iv) In suits for moveable property of no market-value - (a) for
moveable property where the subject-matter has no market-
value, as, for instance, in the case of documents relating to title,
to enforce a right to share in joint family property.-(b) to enforce
the right to share in any property on the ground that it is joint
family property,
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 54 of 123



for a declaratory decree and consequential relief - (c) to obtain a
declaratory decree or order, where consequential relief is prayed
for an injunction.-(d) to obtain an injunction
for easements - (e) for a right to some benefit (not herein
otherwise provided for) to arise out of land, and
for accounts - (f) for accounts according to the amount at which
the relief sought is valued in the plaint or memorandum of
appeal.
In all such suits the plaintiff shall state the amount at which he
values the relief sought
for possession of land, houses and gardens – (v) In suits for the
possession of land, houses and gardens-according to the value of
the subject-matter; and such value shall be deemed to be ...‖
59. Section 8 of the Suits Valuation Act, 1887 is in the following terms :

60. Sections 15, 21 and 24 of CPC provide thus :
―Section-15 - Court in which suits to be instituted : Every suit
shall be instituted in the Court of the lowest grade competent to
try it.
Section-21 - Objections to jurisdiction : (1) No objection as to the
place of suing 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 55 of 123



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 heard, or
of its own motion without such notice, the High Court or the
District Court may at any stage -
(a) transfer any suit,, appeal or other proceeding pending before
it for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any
Court subordinate to it, and
(i) try or dispose of the same, or
(ii) transfer the same for trial or disposal to any Court
subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from
which it was withdrawn.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 56 of 123



(2) Where any suit or proceeding has been transferred or
withdrawn under sub-section (1), the Court which is thereafter to
try or dispose of such suit or proceeding may, subject to any
special directions in the case of an order of transfer, either retry
it or proceed from the point at which it was transferred or
withdrawn.
(3) For the purpose of this section,-
(a) Courts of Additional and Assistant Judges shall be deemed to
be subordinate to the District Court;
(b) ―proceeding‖ includes a proceeding for the execution of a
decree or order.
(4) The Court trying any suit transferred or withdrawn under this
section from a Court of Small Causes shall, for the purposes of
such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section
from a Court which has no jurisdiction to try it.‖
61. The procedural law recognizes the possibility of the need to amend the
pleadings in a civil suit but circumscribes the principle for such purpose
by the following provision contained in Order 6 Rule 17 CPC :
―17. Amendment of Pleadings : The Court may at any stage of
the proceedings allow either party to alter or amend his pleadings
in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the court comes to the
conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.‖
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 57 of 123





PLAINTIFF AS DOMINUS LITIS : VALUATION OF SUIT
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 Vs. Kishan Raj Kalra & Ors, (1976) ILR Delhi 745
observed as under :

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 58 of 123

64. The above observations have been the consistent view of this court and
by way of illustration one may quote the following extract from the
order in case reported as Gobind Gopal Vs. Banwari Lal, AIR 1983
Delhi 323 :

65. But, it cannot be said that the discretion to put a valuation to the reliefs
in the nature of declaration and injunction is an absolute right of the
plaintiff. The valuation pleaded is open to objection by the opposite
party subject, of course, to the rider that exception to the over-valuation
or under-valuation must generally be taken ―in the court of first
instance‖ and ―at or before the hearing at which issues were first
framed‖ and further upon the prejudice (Section 11 of Suits Valuation
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 59 of 123



Act, 1887) or failure of justice consequentially caused (Section 21
CPC) being shown.
66. A full bench of the Patna High Court in the case reported as Mohd.
Alam & etc. Vs. Gopal Singh and Ors., AIR 1987 Patna 156 held as
under :

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 60 of 123



67. The views expressed in Mohd. Alam (supra) were based, inter alia , on
the following observations of the Supreme Court in
Meenakshisundaram vs. Venkatachalam, AIR 1979 SC 989 :

68. The majority opinion refers to Kiran Singh and Ors. Vs. Chaman
Paswan and Ors., AIR 1954 SC 340 to point out the circumspection of
the provision contained in Section 21 CPC and highlight that the
―prejudice‖ on which objection to the competence of a court may be
taken cannot be founded on mere errors in the conclusions on the point
of determination. I would like to extract the following observations of
the Supreme Court in Kiran Singh (supra) :
―6. …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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 61 of 123



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…
7. …an objection that a Court which had 'no jurisdiction 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 over-
valuation 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 views of the Supreme Court leave no room for doubt that
want of pecuniary jurisdiction, if properly raised at the threshold, also
strikes at the roots incurably vitiating the proceedings. The instances of
prejudice given in the said judgment do not provide an exhaustive
enumeration. The civil suit at hand may add another illustration. As
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 62 of 123



noted earlier, the cross suit which had been earlier consolidated with the
suit at hand has been unceremoniously delinked for reasons not cited
and the application of the plaintiff of the said civil suit (defendant
herein) concerning valuation discouraged. The defendant is objecting
to the valuation at the earliest possible opportunity also on ground of
prejudice.
70. Whilst there could be no quarrel with the proposition that law confers
upon the plaintiff the discretion to put valuation to the relief
(declaration or injunction) claimed by him, such valuation as is put is
open to judicial scrutiny. The law conceives of possibility of incorrect
valuation not only by it being under-stated but also on account of
excessive assessment. If objections in this regard were raised – of
course, at the first instance before the commencement of the trial – the
civil court is bound to subject it to inquiry and reach appropriate
conclusions. For present discussion what needs to be flagged here is
that the discretion to state the valuation may be of the plaintiff‘s
initiative but it cannot be arbitrary, whimsical, unguided or merely his
ipse dixit . Further, want of jurisdiction, territorial or pecuniary, strikes
at the root and vitiates the proceedings.
PLAINTIFF AS DOMINUS LITIS : AMENDMENT OF PLAINT
71. There can be no quarrel with the proposition that the law permits the
parties to a civil suit to bring about amendment in the pleadings. But
then, the said right to amend the pleadings is circumscribed by the
provision contained in Order 6 Rule 17 CPC which has been extracted
earlier. A bare perusal of the said clause shows that the right to amend
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 63 of 123



is not unrestricted or an absolute one. Though the guiding principles
which have evolved say that the approach of the court would be liberal
in this regard and all such amendments would be allowed as are
necessary ―for the purpose of determining the real question in
controversy‖, the riders include inhibition in case the proposed
amendment alters or substitute the cause of action or causes 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. Vs. Raj Kumar Aneja and
Ors., 2002 (2) SCC 445 and P.A. Ahammed Ibrahim Vs. 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 questioned but the said prerogative,
once exercised and availed of, does not mean it can be exercised over
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 64 of 123



and over again at his own discretion, fancy, whims or convenience,
mid-way the proceedings.
PLAINTIFF AS DOMINUS LITIS : CHOICE OF REMEDY AND FORUM
73. It is trite that the plaintiff, as the master of the proceedings, is entitled to
choose not only the remedy but also the forum where he wishes to
agitate the same, should there be more than one available in law.
74. In Management Committee of Montfort Sr. Secondary School Vs. Vijay
Kumar and Ors., (2005) 7 SCC 472 , the principle of dominus litis was
invoked leading to the conclusion that there is an inherent right in every
person to bring a suit of civil nature and, where there are plural or
multiple remedies available, the person may bring a suit of one‘s
choice, he having the dominion also on the choice of forum.
75. Noticeably, in Management Committee of Montfort Sr. Secondary
School (supra), the following observations of the Supreme Court in
Dhannalal Vs. Kalawatibai , (2002) 6 SCC 16 were noted :

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 65 of 123



76. In Nahar Industrial Enterprises Ltd. (supra), the Supreme Court ruled
(para 136) that :

77. There is not the least doubt that if more than one forum or remedy is
available, the plaintiff being the dominus litis has a right to ―choose‖.
But, it would not be right to say that the decision in Dr. Subramanium
Swami(supra) holds that the opposite party cannot ask such case to be
tried by another court.
78. In Dr. Subramanium Swami (supra), the respondent before the Supreme
Court had filed a suit in Bombay High Court against the petitioner
claiming damages for injury caused to his reputation by publication of
certain alleged defamatory statements. The petitioner 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 Karnakata 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 :
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 66 of 123

(emphasis supplied)
80. What was highlighted by the Supreme Court in the above mentioned
decision was that the plaintiff‘s prerogative or convenience cannot
override or ―eclipse‖ the requirements of justice. The right of the
plaintiff to choose the forum thus is not an absolute one. Similarly, it
cannot be laid down as an unexceptional rule that once the plaintiff
approaches a particular forum properly instituting a suit within its
jurisdiction a right to continue the proceedings in the said forum vests
which right cannot be taken away.
STARE DECISIS
81. The doctrine of ― stare decisis ‖ (― stare decisis et non quieta movere‖
which translates as ―to stand by decisions and not to disturb settled
matters‖) was evolved in the common law of England but has been
followed by our jurisprudence. In fact, it is embodied in Article 141 of
the Constitution of India which mandates that the law declared by the
Supreme Court shall be binding on all courts in the territory, the words
― law declared ‖ definitely being of wider connotation. The general
proposition expressed by the doctrine is that if a point of law has been
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 67 of 123



decided by the higher court, it is of ― binding authority ‖ in all the courts
of such jurisdiction. Undoubtedly, as Roscoe Pound said, the legal
order must be flexible as well as stable because ― continual changes in
the circumstances of social life demand continual new adjustments to
the pressure of other social interests as well as to new modes of
endangering security ‖ [see Law Finding Through Experience and
Reason Three Lectures by Roscoe Pound, University of Georgia Press,
Athens, 1960]. But formulation of new normative has to be for reasons
properly made out and by appropriate authority. As Salmond observed
adherence to this doctrine ― is necessary to secure the certainty of law,
predictability of decisions being more important than the
approximation to an ideal …‖ [see Salmond on Jurisprudence; P.J.
th
Fitzgerald, Ed., 12 Edn., London, 1966].
82. It would be useful, for the discourse which must follow, to remind
oneself about some decisions of the Supreme Court on the subject of
binding nature of the precedents of a superior court or of co-ordinate
bench.
83. In Union of India Vs. Raghubir Singh, (1989) 2 SCC 754 , the Supreme
Court held :
―27. … It is in order to guard against the possibility of
inconsistent decisions on points 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 68 of 123



lesser number of Judges. This principle has been followed in
India by several generations of Judges ...‖
84. In Sub- Committee of Judicial Accountability Vs. 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. Vs. 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:

(1) The law laid down by this Court in a decision delivered by a
Bench of larger strength is binding on any subsequent Bench of
lesser or coequal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from
the view of the law taken by a Bench of larger quorum. In case of
doubt all that the Bench of lesser quorum can do is to invite the
attention of the Chief Justice and request for the matter being
placed for hearing before a Bench of larger quorum than the
Bench whose decision has come up for consideration. It will be
open only for a Bench of coequal strength to express an opinion
doubting the correctness of the view taken by the earlier Bench of
coequal strength, whereupon the matter may be placed for
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 69 of 123

(emphasis supplied)
86. In Safiya Bee Vs. Mohd. Vajahath Hussain @ Fasi, (2011) 2 SCC 94 , it
was further observed thus :

Supreme Court ruled thus :

(emphasis supplied)

88. It also needs to be borne in mind that a judgment cannot be read as a
statute for being interpreted and applied in different context. In H.H.
Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior
and Ors. Vs. Union of India, (1971) 1 SCC 85, the Supreme Court held
that :
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 70 of 123



― It is difficult to regard a word, a clause or a sentence occurring
in a judgment of this Court, divorced from its context, as
containing a full exposition of the law on a question when the
question did not even fall to be answered in that judgment‖
89. The said view was reiterated in Commissioner of Income Tax Vs. Sun
Engineering Works (P) Ltd., (1992) 4 SCC 363 and, again, in Union of
India Vs. Dhanawanti Devi and Ors., (1996) 6 SCC 44 wherein the
court ruled thus :

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 71 of 123

ORDINARY ORIGINAL CIVIL JURISDICTION : DICHOTOMY IN DELHI
90. Speaking of the territorial jurisdiction of this court and that of the
eleven District Courts of the Union Territory of Delhi, a peculiar
situation prevails. The High Court of Delhi was established by Delhi
High Court Act, 1966 and, by Section 5 thereof, was vested with, in
addition to the appellate or other jurisdiction, the ―ordinary original
civil jurisdiction‖ initially in suits the value of which exceeded
Rs.25,000/-. Prior to the coming into force of the said enactment, and
the establishment of this court, the jurisdiction over the territories
included in the Union Territory of Delhi was exercisable by the High
Court of Punjab. There were corresponding amendments effected in the
Punjab Courts Act, 1988 (as extended to Union Territory of Delhi)
whereby the original pecuniary jurisdiction of the District Courts was
subjected to a cap of Rs.25,000/-. The said arrangement has continued
till date, albeit with amendments in law brought about several times so
as to increase the pecuniary jurisdiction of the District Courts and bring
about corresponding changes in the pecuniary original jurisdiction of
this court.
91. In the present context, one may refer to order dated 19.07.2016 passed
by a division bench of this court (of which I was a member) in CS (OS)
411/2010 and IA No.12186/2010, titled Amina Bharataram Vs. Sumant
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 72 of 123



Bharatram and Ors . which had been instituted on the original side of
this court, inter alia , to seek maintenance in a matrimonial dispute, a
subject matter falling under the jurisdiction of Family Courts under
Sections 7(1)(a) of the Family Courts Act, 1984. A learned single judge
in seisin of the 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
District Judge shall be the District Court or the principal Civil
Court of original jurisdiction in the District. Therefore, when it is
clarified in Section 2(4) that ―district‟ would include the local
limits of a High Court exercising original civil jurisdiction,
axiomatically, such High Court would be a ―District Court‖ to
the limited extent that it is exercising ordinary original civil
jurisdiction....‖
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 73 of 123



PAST PRECEDENTS : ANALYSIS
92. It has been well accepted that the plaintiff being the dominus litis and
having been vested with certain discretion in the matter of valuation
under the provisions quoted earlier is entitled to choose the forum –
District Court or the High Court – for pursuit of the appropriate remedy
in law. While the initial prerogative of the plaintiff to choose the forum
– District Court or High Court – has been well recognized, the issue as
to whether the right to the forum continues to be ―vested‖,
notwithstanding the change in the jurisdiction by law, has vexed the
court on a number of occasions. It is instructive to have regard to the
view taken in the past on this issue so as to address the core question
whether the plaintiff can insist on retaining the suit before this court
even after it is rendered amenable to the pecuniary jurisdiction of the
District Courts on account of statutory amendment and, to put it
conversely, as to whether this court retains the jurisdiction in such
regard post such amendment.
93. Since the territories had been transferred from under the control of the
High Court of Punjab to this court, Delhi High Court Act, 1966, by
Section 12, made the necessary provisions with regard to the transfer of
pending matters in the following terms :

(1) Except as hereinafter provided, the High Court of Punjab
shall, as from the appointed day, have no jurisdiction in respect
of the Union territory of Delhi.

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 74 of 123



(2) Such proceedings pending in the High Court of Punjab
immediately before the appointed day as are certified, whether
before or after that day, by the Chief Justice of that High Court
having regard to the place of accrual of the cause of action and
other circumstances to be proceedings which ought to be heard
and decided by the High Court of Delhi, shall, as soon as may be
after such certification, be transferred to the High Court of
Delhi.

(3) Notwithstanding anything contained in sub- sections (l) 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 sub- section (3), shall for
all purposes have effect, not only as an order of the High Court
of Punjab, but also as an order made by the High Court of
Delhi‖

(emphasis supplied)

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 75 of 123



94. Noticeably, the power to take an appropriate decision about the pending
matters was vested in the Chief Justice of High Court of Punjab from
where such business was to be transferred.
95. Prior to the coming into the force of Delhi High Court Act, 1966, an
exparte decree had been passed in favour of Union of India against one
Arjan Singh. An execution application was moved in this court since
the decree was of an amount in excess of the jurisdiction then conferred
upon the District Courts in Delhi. The judgment debtor, on the other
hand, had moved an application under Order 9 Rule 13 CPC before the
civil court, which had passed the decree. The civil court sent the said
application to this court on the ground that its jurisdiction to deal with
the matter did not subsist on account of new pecuniary limits. The
matter eventually came for consideration, upon reference, before a full
bench. The decision rendered thereupon is reported as Arjan Singh Vs.
Union of India, ILR (1973) II Delhi 933 . It was held that a subordinate
court which had actually passed the decree might ―entertain‖ the
application for its execution, this subject to its ―transfer‖ for execution
to the appropriate court having territorial or pecuniary jurisdiction,
while in respect of applications other than execution applications in
suits which had been decreed prior to the coming in force of the
amendment where the suit was more than the pecuniary jurisdiction
vested in the District Courts, only the High Court would have the
jurisdiction to entertain and try the same. In above context the full
bench, deciding the said reference, observed that the transfer of
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 76 of 123



proceedings was akin to ―transfer of business‖ within the meaning of
the expression used in Section 150 CPC.
96. I am unable to agree with the view of the majority that the above
decision supports the proposition that the forum where business was to
be transferred would not loose its powers. On the contrary, the
decision clearly stipulated that the forum which had been divested of its
pecuniary jurisdiction could be approached for ― only entertaining the
application ‖ whereafter the matter was to be subjected to transfer in
accordance with the new dispensation 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) :
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 77 of 123

98. In a suit for recovery of money and decree of declaration, with
valuation for purposes of court fee and jurisdiction at less than Rs. 5
Lakhs, then pending on the original side of this court, a preliminary
issue with regard to the limitation had been framed. A contention was
raised, against this backdrop, that the cases in which issues had been
framed having been excluded from transfer by the order promulgated
by the Chief Justice, the case was required to be retained. This
contention was rejected by a learned single judge of this court in a
decision reported as D.P. Bhalla Vs.Cement Corporation of India Ltd.,
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 78 of 123



58 (1995) DLT 188 , inter alia , with observation that the preliminary
issue being a mixed question of fact and law could not be decided
except after recording evidence and, thus, the case could not be treated
as one in which issues had been framed. It is in this context that it was
observed that the order issued by the Chief Justice had to be given an
―object oriented‖ interpretation.
99. The above case, with due deference to the majority opinion, cannot be a
precedent for the conclusion that the power vested in the Chief Justice
by Section 4 of the amendment Act is ―administrative in its essence‖.
On the contrary, the decision reinforces the proposition that this court
upon such amendment ―ceases‖ to have the jurisdiction 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. Vs. 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 79 of 123



exercised by the Chief Justice is administrative in nature ‖, pertinently
concluding as under :

101. It may be added that the grievance about the right of appeal was also
repelled in above-noted case holding that, upon transfer of the pending
cases, the subordinate courts were to entertain the same giving rise to
the right of appeal before the forum under the Punjab Courts Act,
observing further thus :

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 80 of 123

(emphasis supplied)
102. Clearly, the amending Act confers full discretion upon the Chief Justice
to exercise the power in Section 4 to carve out exception to the general
intendment for transfer. This necessarily means it is the terms of the
order of Chief Justice that would regulate the action to follow.

103. The majority view takes note of the above decision of the division
bench in the 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
Vs. 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 81 of 123



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 affecting the jurisdiction would operate ― retrospectively ‖ in
absence of any indication to the contrary in the amendment Act,
referring in this context to an earlier decision in Sudhir G. Angur Vs. M.
Sanjiv, (2006) 1 SCC 141 . The opinion of the majority, in my view,
runs counter to the principle laid down in Ramesh Kumar Soni (supra)
for the simple reason that Section 4 of the amendment Act of 2015
permits retrospective operation of the new dispensation on pecuniary
jurisdiction and since the Chief Justice has exercised the power
conferred upon her, by promulgating the order dated 24.11.2015, the
rule of cessation of jurisdiction gets attracted.
106. I do not have the least doubt about the ―correctness‖ of the view taken
by the division bench in case of Delhi High Court Bar Association
(supra), the said approach having been adopted in similar fact-situation
as at hand, against the backdrop of return of the plaint upholding the
preliminary objection of non- maintainability of the suit before this
court on the ground of lack of pecuniary jurisdiction, in the case of
Mahesh Gupta (supra) by another division bench of this court, rejecting
the application for amendment for increase of the valuation, with the
following observations :
― 7. ... The issue therefore is, can this application for amendment
be allowed. It is trite that the court which does not have
jurisdiction to try the matter would have no jurisdiction to pass
any orders which affect the rights of the parties. The orders
which are passed by a court which has no jurisdiction to
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 82 of 123



determine the matter, are without jurisdiction and, therefore, of
no effect and purport. The Court therefore which does not have
pecuniary jurisdiction cannot pass any orders allowing an
application seeking amendment of a plaint to bring the suit plaint
within the pecuniary jurisdiction of a Court...‖

107. Reference may also be made here to the ruling of a division bench of
this court in a case reported as Bakshi Lochan Singh (supra) where the
court was called upon to decide whether for purposes of Section 92 of
CPC, the High Court would be the principal civil court of original
jurisdiction if the value of the suit exceeded the then pecuniary limit
(Rs.50,000/-). The court held as follows :

(emphasis supplied)
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 83 of 123



108. In Raja Soap Factory and Ors. Vs. S.P. Shantharaj and Ors., AIR 1965
SC 1449 , the Supreme Court ruled that the jurisdiction to try a suit,
appeal or proceeding, under the power reserved by Section 24(1)(b)(i)
of CPC for the High Court arises only if such suit, appeal or
proceeding is appropriately instituted in a court subordinate to it and the
same is transferred by the High Court unto itself in exercise of power
under the said provision. Pertinently, the Supreme Court observed that
the High Court ― is not competent to assume to its jurisdiction which it
does not otherwise possess .‖

109. I am unable to subscribe to the view expressed in the majority opinion
that by virtue of Section 5(2) of the Delhi High Court Act, 1966, this
court is ―in hierarchy of pecuniary jurisdiction‖ in the matters
pertaining to ordinary original civil jurisdiction. As observed in Amina
Bharataram (supra), this court is also a ―District Court‖, and the
pecuniary limits of the jurisdiction of District Courts, and of this court,
have been clearly demarcated. The decision in Bakshi Lochan Singh
(supra) referred to by the majority in this context only reinforces the
contrarian view wherein this court is not vested with the jurisdiction to
entertain suits value whereof is less than that prescribed in Section 5(2)
of Delhi High Court Act, 1966.
110. In Rajesh D. Darbar (supra) while considering possible course of action
in the face of the fact that the relief originally sought had become
obsolete or unserviceable, while accepting the proposition that rights
which had already vested could not be nullified or negated by
subsequent events, the exception of ―change in the law‖ was
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 84 of 123



recognized. The decision in Manager, VKNM Vocational Higher
Secondary School (supra) also enunciates (para 21) a clear principle
that :
―...vested right can also be taken away by a subsequent enactment
if such subsequent enactment specifically provides by express
words or by necessary intendment. In other words, in the event
of the extinction of any such right by express provision in the
subsequent enactment, the same would lose it value...‖
111. As observed earlier, the amendment in procedural law applies
retrospectively. The amendment of 2015 came into force with effect
from 26.10.2015. The enforcement of Section 4 with regard to the
transfer of pending cases was subject to a decision (to be) taken by the
Chief Justice. The Chief Justice in exercise of the said powers
promulgated her order on 24.11.2015 clearly 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. Vs. 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 85 of 123



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 the amendment Act 2015 there would not
have been automatic transfer of the pending suits. The reference to
Allahabad Bank Vs. Canara Bank and Anr., (2000) 4 SCC 406; Hara
Parbati Cold Storage Pvt. Ltd. and Anr. Vs. UCO Bank and Ors.,
(2000) 9 SCC 716 and Konda Lakshmana Bapuji Vs. Govt. of A.P. and
Ors., (2002) 3 SCC 258 in this regard, is also not correct.
113. The controversy in the first two above mentioned cases had arisen out
of the jurisdiction vested in Debts Recovery Tribunal by Recovery of
Debts Due to Banks and Financial Institutions Act, 1993. The Supreme
Court took the view that upon a Debts Recovery Tribunal being
constituted, transfer of a civil suit covered by the said law from the
original side of the High Court where it was pending to the new forum
was ― automatic ‖ and steps to be undertaken for transferring the papers
to such tribunal were only ― ministerial act(s) ‖. Similar is the view
taken in the third above mentioned case vis-a-vis Section 8 of the
Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 whereby
Special Courts were constituted. The view thus taken by the Supreme
Court militates against the approach accepted by the majority opinion.
After coming into force of the 2015 amendment and upon promulgation
of the order by the Chief Justice under Section 4, wherein the direction
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 86 of 123



was that the transfer of cases in its terms to the subordinate courts ―shall
commence‖ from the date of its issuance only ―ministerial act of
transferring the papers‖ by the registry remains to be done subject, of
course, to judicial overview for satisfaction that a case indeed falls
within the enhanced pecuniary jurisdiction of the district courts and is
not excluded from transfer under other relevant provisions of law – for
example, Commercial Courts Act.
114. In my considered view, the decision in Subhash Chand Goel vs. Union
of India 1997 SCC Online HP 38 has no relevance for addressing the
present controversy. Unlike Himachal Pradesh Courts Act, 1976
whereby the pecuniary jurisdiction of Himachal Pradesh High Court
and District Courts in original civil suits was demarcated, the provisions
contained in Delhi High Court Act, 1966 as originally enacted, and as
amended from time to time, do provide for transfer of the pending
business.
115. The Delhi High Courts Act, 1966 was sought to be amended by Delhi
High Court (Amendment) Act, 2001 passed by the legislative assembly
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 vs. 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 87 of 123



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 vs.
Standard Brands Limited 135 (2006) DLT 698 was one of such suits as
fell in the above category. Notwithstanding the judgment in Geetika
Panwar (supra), the suit had remained on the file of the subordinate
court by virtue of an interim order passed by the Supreme Court on
06.09.2002 staying the transfer of the cases from district courts to this
Court consequent to the above mentioned directions. The validity of
certain orders passed in the said proceedings were challenged on the
ground the same were beyond the pecuniary jurisdiction of the district
court. The said contention was rejected primarily on the reasoning that
the district court was well within its jurisdiction to pass the said order.
116. The above mentioned decisions in Geetika Panwar (supra), and Jagdish
Prasaid Sharma (supra) are referred to in the majority opinion to
highlight that decree passed in a suit beyond the maximum pecuniary
jurisdiction of the district court was not interfered with. My reading of
the two judgments is that the Court was striking a balance. Any other
view in the peculiar situation that prevailed would have prejudiced and
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 88 of 123



unduly harassed a large number of litigants for no fault of theirs. In the
full bench decision, the Court was exercising its writ jurisdiction
bearing the responsibility to ensure that no injustice was caused. These
decisions cannot be availed as precedents to support the view that the
Court may exercise jurisdiction where it does not vest.
117. As indicated earlier, Section 15 of CPC enjoins that every suit shall be
instituted in the Court of the lowest grade competent to try it. If this
principle is applied, and read with the amended provisions of Delhi
High Court Act, 1966, after promulgation of the order under Section 4
by Hon‘ble the Chief Justice, the civil suits which now fall within the
pecuniary jurisdiction of district courts are bound to be transferred from
this Court to the district courts. The majority view refers to V.
Ramamirtham (supra), Kesavarapu Venkateswarlu (supra) and Taran
Jeet Kaur (supra) to observe that while a court is said to be not having
jurisdiction to try the suit above its maximum pecuniary jurisdiction,
the converse is not true. As observed in V. Ramamirtham (supra), the
object of Section 15 CPC is to prevent the superior courts from being
flooded or over-crowded with suits triable by courts of inferior grade.
The 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 89 of 123



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 Vs. 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 pending suits or other proceedings, in light of the said
legislative mandate and public policy, is also part of the legislative
command. Such power cannot said to be ministerial or administrative
in nature. It is analogous to delegation to legislate. Upon the Chief
Justice taking a decision, and issuing an order, in exercise of the said
power, the directions given are in the nature of subordinate legislation
and have the force of law and, therefore, must be read as part of the
enactment. The order issued by the Chief Justice on 24.11.2015 is clear
and precise and admits no exception (save for cases where judgment
has been reserved). Upon its issuance, the pending cases on the original
side of this court stand transferred and the benches before which they
were thus far pending ceasing to have any jurisdiction. It is what is left
to be done which is ministerial or administrative exercise.
119. The case of Hansraj Kalra (supra) was taken note of earlier. The
following observations in the said case are of import :
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 90 of 123

120. As would be seen from the following discussion, the above has been the
consistent view of different benches of this court.
121. Against the backdrop of amendment of 1991 enhancing the pecuniary
jurisdiction of the district courts in Delhi, move for amendment of the
plaint in a civil suit instituted earlier on the original side of this Court so
as to raise its valuation and thereby retain it here was dismissed by a
learned Single Judge in decision reported as Lok Kalyan Samiti (supra)
with observation that the proposed amendment smacked of ― malafides‖
as the intent appeared to be ― only to circumvent‖ the effect of change
in pecuniary jurisdiction.
122. The civil suit in the case reported as Anil Goel vs. Sardari Lal (supra)
had been presented in this Court on the original side seeking relief of
injunction valued at Rs. 200 and the relief of damages valued at Rs.
75,000. The pecuniary jurisdiction 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 91 of 123



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 jurisdiction to stand increased and be such
as would pertain to the revised pecuniary jurisdiction of this Court.
The application was dismissed and the suit directed to be transferred to
the court of competent jurisdiction by learned Single Judge in decision
reported as Sadhna Sharma (supra) with observations that ― loss of
pecuniary jurisdiction is by operation of law‖ and that
― implementation and operation of such law cannot be hampered or
rendered ineffective on the grounds of inconvenience of parties‖ and
further that ―the power of the court to direct transfer of a case
necessarily may not include power to retain the suit when apparently
the court has no pecuniary jurisdiction to entertain and decide the
suit.‖
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 92 of 123



124. Pertinent to observe here that the case of Taran Jeet Kaur (supra)
follows the above reasoning and approach which is in sync with the
ruling of two different benches of this court in the cases of Delhi High
Court Bar Association (supra) and Mahesh Gupta (supra).
125. As noted earlier, the departure from the above line of precedents by the
decisions in Eicher Motors Ltd. (supra), Sanofi Aventis (supra), Metal
Box India (supra), Kamal Sharma (supra) and Sharada Nayak (supra),
has been mainly out of the concern that should the pending cases where
the plaintiffs intend to enhance the valuation of the relief by amendment
of the plaint, be transferred to the District Courts, it would entail
unnecessary delay and harassment that could be avoided. In the teeth of
clear enunciation of law by binding precedents that this court ceases to
have jurisdiction in such matters upon promulgation of the order by the
Chief Justice under Section 4, adjudication upon any such applications
(for amendment) would be non-est and improper usurpation of power.
Pragmatism in such situation is a slippery slope and may set a precedent
open to abuse. Pragmatism does not create jurisdiction where none
exists. It is trite that inherent power to do justice (section 151 CPC)
would come in aid only where the area is grey or there is vacuum in
law.
126. The apprehension of delay or harassment agitated by the learned
counsel for the plaintiff, in my view, is exaggerated. Even if the
plaintiff were to press for amendment before the District Court and
enhance the valuation rendering the suit beyond the pecuniary
jurisdictional limits of such court, the plaint of the case need not
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 93 of 123



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. vs. Magna Laboratories (Gujarat) Pvt. Ltd. & Anr. AIR 2006
Delhi 115 observing that :

IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 94 of 123



128. Reliance is placed in the majority opinion on the decision of the
Supreme Court in Lakha Ram Sharma (supra) to hold that the view
taken by the division bench of this court in Mahesh Gupta (supra) is not
a good law. Reference is also made to another decision of the Supreme
Court in Mount Mary Enterprises (supra).
129. In Lakha Ram Sharma (supra), the plaintiff had sought reliefs
including in the nature of permanent injunction and rendition of
accounts. He moved an application, inter alia , seeking to raise the
valuation of the suit from Rs.1 Lakh to Rs.10 Lakhs. The High Court
held the move to be arbitrary, not based on any cogent material and, not
bonafide since it was done with the purpose of taking the suit out of the
jurisdiction of the court where it was pending. The Supreme Court, in
appeal, set aside the order of the High Court observing that it should not
have gone into the merits of the matter holding further that ― merely
because an amendment may take the suit out of the jurisdiction of that
court is no ground for refusing that amendment ‖.
130. In Mount Mary Enterprises (supra), the suit for specific performance
had been filed stating that the property was valued at Rs.13,50,000/-.
The plaintiff moved an application under Order 6 Rule 17 CPC to
enhance the valuation of the suit pleading that the market value of the
property was actually Rs.1,20,00,000/-. The trial court rejected the
prayer taking a view, amongst others, that the amendment would result
in the suit being rendered beyond its pecuniary jurisdiction and liable to
be transferred to the High Court on its original side. The order was
unsuccessfully challenged before the High Court. On appeal, the
Supreme Court held that the amendment application ought to have been
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 95 of 123



granted and observed that the consequent transfer of the suit from the
file of the trial 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
th
deem it necessary to add a few more lines. Reference to the 8
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, the limited inquiry to be
conducted by the learned single judge on the original side of this court
concerns only the issue as to whether or not the case is covered in the
category of those which have been transferred. The key words (for
th
present discussion) in the 8 explanation referred to above are
― competent to decide such issue ‖. Once it is concluded that the order
issued by the Chief Justice in exercise of power conferred upon her by
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 96 of 123



Section 4 of the amendment Act is analogous to subordinate legislation,
the first or foremost issue over which the exercise of jurisdiction has to
be restricted concerns as to the continued maintainability of the case
before this Court. Indeed, every court has the inherent jurisdiction to
decide if the jurisdiction to adjudicate upon the lis before it vests in it or
not. But, if the answer to this question is found in the negative, it is
beyond its competence to create jurisdiction (which does not exist)
under the cover of exercising ― jurisdiction to determine the scope of its
own jurisdiction ‖ – not the least where it has the effect of defeating the
legislative intent. It is trite that what cannot be lawfully done directly
cannot legitimately be done indirectly.
CONCLUSIONS
133. For the foregoing reasons, I conclude that though the plaintiff is the
dominus litis and has the prerogative to choose the remedy, and the
forum, as also put appropriate valuation to the relief (if so permitted in
law as in the case of declaration and injunction), the discretion to be
exercised cannot be arbitrary or capricious and the same is open to
objections by the opposite party and, therefore, subject to judicial
scrutiny. The continuation in, or retention before, the forum whose
jurisdiction initially may have been properly invoked, is not a vested
right and the same is subject to the requirements of justice, amenable to
the jurisdiction of the competent courts to order the transfer of such lis,
as indeed subject to legislative mandate by amendment of law reflecting
public policy.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 97 of 123



134. The right of a party to the proceedings in a civil suit to amend the
pleadings is qualified by the consideration of its necessity for just
determination of the real question in controversy. The discretion given
by the law to put an appropriate valuation to the reliefs in the nature of
declaration and injunction at the threshold may generally be not open
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 delegated legislation and
permitting no exception (except one where trial had concluded and
judgment had been reserved), the original civil jurisdiction of this court
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 98 of 123



ceases in matters which, under the amended law, and the order of the
Chief Justice, now pertain to the pecuniary jurisdiction of the district
court. So long as the order of the Chief Justice subsists, it has to be
adhered to.
137. The bench on the original side of this court before which such case may
have been pending is rendered functus officio and no inherent
jurisdiction subsists to deal with any pending application unless, and
except in the event, the case, after being made over to the District
Court, is withdrawn from there and transferred to this court in exercise
of power under Section 24 CPC.
138. The decisions particularly of the division benches of this court in the
cases reported as Delhi High Court Bar Association (supra) and
Mahesh Gupta (supra) laid down the appropriate legal principles and,
being binding precedents, could not have been ignored, without being
referred for reconsideration to a larger bench.
ANSWER TO THE REFERENCE

139. In view of the above conclusions, I answer the reference as under :
(a). The rulings of division benches of this court in Delhi High Court
Bar Association Vs. GNCTD, (2002) 99 DLT 840 , Mahesh Gupta
Vs. Ranjit Singh and Ors., AIR 2010 Delhi 4, as indeed of learned
single judges in Hansraj Kalra Vs. Kishan Raj Kalra & Ors,
(1976) ILR Delhi 745 , Lok Kalyan Samiti vs. Jagdish Prakash
Saini & Ors. 1995 (33) DRJ 290, Anil Goel vs. Sardari Lal 75
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 99 of 123



(1998) DLT 641 , Sadhna Sharma & Ors. vs. Prem Lata Gautam &
Ors. Manu/DE/2937/2005 and Taran Jeet Kaur Vs. G.S. Bhatia,
2009 (108) DRJ 89 lay down the correct law and, therefore ,
continue to be binding precedents.
(b). For reasons set out above, the view taken in Eicher Motors Ltd . Vs.
Saurabh Katar and Ors., [2016 I AD (Delhi) 83] , Sanofi Aventis
vs. Intas Pharmaceuticals Ltd. and Anr., [227 (2016) DLT 296] ,
Metal Box India and Anr. Vs. T.K. Sehgal and Sons (HUF) and
Ors., [order dated 28.03.2016 in CS (OS) 3213/2011], Kamal
Sharma and Ors. Vs. Blue Coast Infrastructure Development Pvt.
Ltd. and Ors. [2016 (229) DLT 438] and Mrs. Sharada Nayak Vs.
Mr. V.K. Shunglu & Ors., [order dated 28.04.2016 in CS (OS)
2829/2015], being out of accord with precedents of higher
authority, cannot be followed.
(c). Upon issuance 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 100 of 123



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 question raised in the present reference is legalistic. It relates to
the jurisdiction or power of the judge on the Original Side of the High
Court to examine and decide an application for amendment of the plaint
for enhancement of pecuniary jurisdiction to more than Rs.2 crores, for
as per the administrative order passed by the Hon‘ble the Chief Justice
th
on 24 November, 2015 all suits and other proceedings pending in the
High Court on the Original Side where the value does not exceed Rs.2
crores (Rs.1 crore in cases relating to commercial disputes) stand
transferred to the jurisdiction of the subordinate courts.
142. My opinion being the last in point of time, I have had the occasion and
privilege to read the judgments of Rajiv Sahai Endlaw, J. and R.K.
Gauba, J. As recorded by R.K. Gauba, J., in our meetings and
discussions, I had expressed my concurrence with the final finding as
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 101 of 123



recorded by Rajiv Sahai Endlaw, J. I proceed to record and give my
reasons.
143. As the reference Court, we are required to answer the following
question:-
―Whether a court, which does not have pecuniary jurisdiction to
entertain the plaint/suit, can entertain an application to amend the
plaint to bring the plaint within the pecuniary jurisdiction of the
court?‖
144. As the question raised pertains to law and not facts, I would refrain
from commenting on the facts and would not like to expound and
exposit on merits on whether the amendment application seeking
enhancement of the pecuniary jurisdiction should be allowed or
dismissed. Indeed, if we accept that the Delhi High Court does not
have jurisdiction, then as a sequitur, it must follow that we should not
comment on the merits of the prayer for amendment. Conversely, the
amendment application would be decided by the Single judge on the
Original Side on merits. The amendment application is thus either to be
decided by the single Judge on the Original Side of this Court or by the
Judge presiding over the transferee court. Any opinion on the merits
would create difficulty and, therefore, I have avoided any comments
touching on merits. Some reference has been made in the judgments of
my brothers to principles of amendment, which I believe are of general
nature.
145. The expression want or lack of jurisdiction means usurpation of power,
unwarranted in law. Jurisdiction as a concept is incapable of strict
conceptualisation as it has varied shades and hues.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 102 of 123



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:-

The purport of the said Explanation is to incorporate and affirm the
‗bootstrap doctrine‘, which in Black‘s Law Dictionary, Eighth Edition,
has been defined as:-
―If the court which rendered the judgment has, with the
parties before it, expressly passed upon the jurisdictional question in
the case, or had opportunity to do so because the parties could have
raised the question, that question is res judicata, and is therefore not
subject to collateral attack in the state in which the judgment issued
on. This has been called the ‗bootstrap doctrine‘, the idea being that
a court which initially had no jurisdiction can when the issue is
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 103 of 123



litigated lift itself into jurisdiction by its own incorrect but
conclusive finding that it does have jurisdiction.‖
This doctrine has its limitations especially when the enactment itself
states that the judgment of the court of the limited jurisdiction can be
challenged in collateral proceedings, or is not finally determinative, or
when the defendant has not appeared. In the first situation, the question
would arise whether the Legislature had granted power to the Court or
forum of limited jurisdiction, the authority to decide its own
jurisdiction. Indeed the Explanation VIII quoted above uses the
expression ―competent to decide such issue‖. Pertinently in the present
case, the Judges on the Original side of this Court exercising
jurisdiction and power under Section 9 of the Code are not regarded as
Courts of limited jurisdiction.
148. Secondly, a distinction must be drawn between subject-matter
jurisdiction and pecuniary or territorial jurisdiction. In each situation,
the question relates to the jurisdiction of the court, but in the case of
territorial or pecuniary jurisdiction, the want of jurisdiction of this kind
may be remedied by waiver, consent or acquiescence. These are treated
as jurisdictional defects which can be cured. Thus, in spite of lack of
jurisdiction, a party can be precluded from raising an objection even at
the stage of appellate proceedings. There is case law which suggests
that the Bootstrap Doctrine, without statutory backing, cannot give
binding effect to a judgment by a Court that had no subject matter
jurisdiction.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 104 of 123



149. Section 21 of the Code of Civil Procedure, 1908 (CPC or Code for
short) reads as under:-
― 21. Objections to jurisdiction.- (1) No objection as to the place
of suing 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 jurisdictional
purposes. -
1
(1) Notwithstanding anything [in section 578 of the Code of
Civil Procedure (14 of 1882)] and objection that by reason of the
over-valuation or under- valuation of quit or appeal a Court of
first instance or lower Appellate Court which had no jurisdiction
with respect to the suit or appeal exercise jurisdiction with
respect thereto shall not be entertained by an Appellate Court
unless. -
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 105 of 123



(a) The objection was taken in the Court of first instance at or
before the hearing at which issues were first framed and
recorded, or in the lower Appellate Court in memorandum of
appeal to that Court, or
(b) The Appellate Court is satisfied, for reasons to be
recorded by it in writing, that the suit or appeal was over-valued
or under-valued, and that the over-valuation or under-valuation
thereof has prejudicially affected the disposal of the suit or
appeal on its merits.
(2) If the objection was taken in the manner mentioned in
clause (a) of sub-section (1), but the Appellate Court is not
satisfied as to both the matters mentioned in clause (b) of that
sub-section and has before it the materials necessary for the
determination of the other grounds of appeal to itself, it shall
dispose of the appeals as if there had been no defect of
jurisdiction in the Court of first instance or lower Appellate
Court.
(3) If the objection was taken in that manner and the
Appellate Court is satisfied as to both those matters and has not
those materials before it, it shall proceed to deal with the appeal
under the rules applicable to the Court with respect to the hearing
of appeals; but if it remands the suits or appeal, or frames and
refers issues for trial, or requires additional evidence to be taken,
it shall direct its order to a Court competent to entertain the suit
or appeal.
(4) The provisions of the section with respect to an Appellate
Court shall, so far as they can be made applicable, apply to a
Court exercising revisional jurisdiction under [Section 622 of the
'Code of Civil Procedure (14 of 1882)] or other enactment for the
time being in force.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 106 of 123



(5) This section shall come into force on the first day of July
1887.‖
151. In Kiran Singh and Others versus Chaman Paswan and Others, AIR
1954 SC 340, it was observed as under:-

7. Section 11 enacts that notwithstanding anything in Section
578 of the Code of Civil Procedure an objection that a court
which had no jurisdiction over a suit or appeal had exercised it by
reason of overvaluation or undervaluation, should not be
entertained by an appellate court, except as provided in the
section. Then follow provisions as to when the objections could
be entertained, and how they are to be dealt with. The drafting of
the section has come in — and deservedly — for considerable
criticism; but amidst much that is obscure and confused, there is
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 107 of 123



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 overvaluation or undervaluation, 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. The reference to Section 578, now Section 99 CPC, in
the opening words of the section is significant. That section,
while providing that no decree shall be reversed or varied in
appeal on account of the defects mentioned therein when they do
not affect the merits of the case, excepts from its operation
defects of jurisdiction. Section 99 therefore gives no protection to
decrees passed on merits, when the courts which passed them
lacked jurisdiction as a result of overvaluation or undervaluation.
It is with a view to avoid this result that Section 11 was enacted.
It provides that objections to the jurisdiction of a court based on
overvaluation or undervaluation shall not be entertained by an
appellate court except in the manner and to the extent mentioned
in the section. It is a self-contained provision complete in itself,
and no objection to jurisdiction based on overvaluation or
undervaluation can be raised otherwise than in accordance with
it. With reference to objections relating to territorial jurisdiction,
Section 21 of the Civil Procedure Code enacts that no objection
to the place of suing should be allowed by an appellate or
Revisional Court, unless there was a consequent failure of justice.
It is the same principle that has been adopted in Section 11 of the
Suits Valuation Act with reference to pecuniary jurisdiction. 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 108 of 123

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- valuation has to be dealt with as per the terms of the said Section
and not otherwise for when a judgment is rendered on merits, it should
not be reversed purely on technical grounds, unless it has resulted in the
failure of justice. Even on the question of subject-matter jurisdiction,
some dent has been made by incorporation of Explanation VIII to
Section 11 CPC, which pertains to res judicata and binding force on a
judgment even of a court of limited jurisdiction, provided it is
competent to decide the issue of jurisdiction. In that event, an
unsuccessful party cannot initiate collateral proceedings
notwithstanding that the court of limited jurisdiction was not competent
to try such proceeding or issues. It is difficult to accept and approve
that a contesting losing side/defendant can file a suit to declare a decree
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 109 of 123



as a nullity for want of pecuniary jurisdiction. Collateral separate
proceedings would not lie and would be rejected.
152. Section 15 of the Code reads as under:-
“S. 15. Court in which suits to be instituted.- Every suit shall be
instituted in the Court of the lowest grade competent to try it. ”

The aforesaid Section in simple and plain language states every
suit has to be instituted in the court of the lowest grade competent to try
it. When a suit is triable by a court of the lowest grade but is instituted
in a court of higher grade, the latter court has jurisdiction to examine
the question of its own jurisdiction and return the plaint if it does not
have jurisdiction. It is the valuation in the plaint that determines
jurisdiction, the averments made in the written statement generally
being irrelevant to the question of jurisdiction. However, in view the
provisions of Section 11 of the Suit Valuation Act, 1887 and the
decisions of the Supreme Court in Tara Dev versus Thakur Radha
Krishna Maharaj, AIR1987 SC 2085, Nandita Bose versus Ratanlal
Nahata , AIR 1987 SC 1947, it is settled principle that although the
plaintiff‘s valuation of a suit determines the pecuniary jurisdiction of
the Court, such valuation of claims cannot be arbitrary. In V.
Ramamirtham, Sole Proprietor, Glorious Pictures versus Rama Film
Service , AIR 1951 Madras 93 (FB), Viswanatha Shastri, J. opined that
the object of Section 15 of the Code is to prevent superior courts from
being flooded or over-crowded with suits triable by the inferior courts.
The Section primarily regulates the procedure and not ―jurisdiction‖.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 110 of 123



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 the Court. The High
Court of Delhi then had jurisdiction to try all civil suits valued at Rs.20
lacs or more. With the enactment of the Delhi High Court
(Amendment) Act, 2015 (the Amending Act, for short) with effect from
th
26 October, 2015, the words ―rupees twenty lakhs‖ in sub-section (2)
to Section 5 of the Delhi High Court Act, 1996 stand substituted for the
words ―rupees two crore‖. Section 5(2) of the Delhi High Court Act
th
prior to and post the amendment dated 26 October, 2015 would read as
under:-
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 111 of 123



―Pre-amendment
5(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 civil jurisdiction in
every suit the value of which exceeds rupees twenty lakhs.
Post-amendment
5(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 civil jurisdiction in
every suit the value of which exceeds rupees two crore‖.
The aforesaid Section deals with the institution of suits and not
with the transfer of suits. It would therefore, not be correct to accept
the proposition that on the amendment of Section 5 and substitution of
the words ―rupees twenty lacs‖ with ―rupees two crores, the suits which
were validly instituted in the Delhi High Court, would no longer be
triable because the Delhi High Court has lost pecuniary jurisdiction
th
with effect from 26 October, 2015. The difference between institution
and transfer of jurisdiction, which happens post the institution, and the
triability of the pending litigation was examined and elucidated by the
Supreme Court in Ramesh Kumar Soni versus State of Madhya
Pradesh , (2013) 14 SCC 696. This decision though in a criminal
matter, draws a distinction between jurisdiction at the time of institution
of proceedings and an amendment applicable to pending cases, which
were validly instituted and have to be transferred to another
forum/court. In New India Insurance Company Limited versus Shanti
Misra , (1975) 2 SCC 840, the Supreme Court had held that change of
forum by way of law can operate retrospectively and would be
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 112 of 123



applicable even if the cause of action or right of action had accrued
prior to the change of forum. A plaintiff had a vested right of action but
not a vested 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
rd
and Others , Writ Petition (C) No. 4520/1992 dated 23 April, 1993.
The said decision was with reference to the amendment of sub-section
(2) to Section 5 of the Delhi High Court Act which came into force on
th
9 November, 1992, substituting the figure of Rs.1,00,000/- with
Rs.5,00,000/-. The Delhi High Court (Amendment) Act, 1991 in
Section 4 of the Amending Act had postulated as under:-
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 113 of 123



―Power of Chief Justice to transfer pending suits and
proceedings to subordinate Courts.- ―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 and in which no witnesses have been
examined before such commencement to such subordinate court
in the Union territory of Delhi as would have jurisdiction to
entertain such suit or proceedings been instituted or filed for the
first time after such commencement.‖

Section 4 had stipulated that the Chief Justice has the power to
transfer pending suits and other proceedings pending in the High Court
before the commencement of the Act and in which no witnesses had
been examined before commencement, as if the same have been
instituted and filed for the first time before such commencement.
156. Section 4 of the Amending Act of 2015 is slightly differently worded
and reads 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.‖
A reading of the aforesaid Section would show that it specifically
dealt with transfer of pending cases pending in the High Court on the
th
date when the Amending Act was enforced, i.e., on 26 October, 2015.
When a specific provision is made in form of Section 4 of the
Amending Act, then the said provision would override the general
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 114 of 123



assumption that all pending proceedings would also be transferred.
Section 4 of the Amending Act mandates and requires the Chief Justice
to pass a specific order to transfer suits or other proceedings and it is
only in terms of the said order that the pending matters would be
transferred. Intendment is to the contrary. In these circumstances, I do
not think the decision in the case of Delhi High Court 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 High Court, while
examining the question of transfer of a case to the District Court, can
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 115 of 123



also decide and adjudicate an application for amendment seeking
enhancement of pecuniary jurisdiction to exceeding Rs.2 crores (Rs.1
crore in the case of commercial cases) which would if the application is
allowed, have the effect of doing away with the requirement of a
transfer order as the suit would the fall within the amended pecuniary
jurisdiction of this Court. Before deciding and elucidating my reasons
why the High Court would have power and retains jurisdiction and is
not functus officio to decide the said application, I would like to first
th
reproduce the office order dated 24 November, 2015 passed by
Hon‘ble the Chief Justice under Section 4 of the Amending Act of
2015. The same reads:-
―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 Commercial
Courts, Commercial Division and commercial Appellate Division
of High Courts Ordinance, 2015), pending in the Delhi High
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 116 of 123



Court on the Original Side, excepting those cases in which final
judgments have been reserved , be transferred to the
jurisdictional subordinate courts.
The transfer of cases to the subordinate courts shall commence
from today, i.e. 24.11.2015.‖
The notification draws a distinction between cases where final
judgment has been reserved and others and stipulates that all suits and
proceedings pending in the Original 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 funtus 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 the High Court, it is for this Court to
examine and determine the valuation of suit made by the plaintiff and
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 117 of 123



decide whether in terms of the said valuation, the suit should be
transferred. Section 5(1) of the Delhi High Court Act, 1966 stipulates
that the High Court of Delhi shall have all such original, appellate and
other jurisdiction as under law in force immediately before the
appointed day. Should the Original Side of the High Court in the said
matrix not examine the question of valuation or is precluded from
examining the question of valuation, is the moot question. My answer
to the said question would be in affirmative in view of the discussion
above on the general principles relating to jurisdiction. Amendment of a
plaint normally, unless otherwise directed, relates back to the date of
original filing. The doctrine of relation back stands accepted and
recognized in Sampath Kumar versus Ayyakannu and Anr., (2002) 7
SCC 559 and in Siddalingamma and Anr. versus Mamtha Shenoy,
th
(2001) 8 SCC 561 [See also decision dated 26 August, 2015 in Civil
Appeal No.6595/2015 L.C. Hanumanthappa @ since dead versus H.B.
Shivakumar .]. Therefore, when the pecuniary clause in the plaint is
allowed to be amended, it could relate back to the date of original filing
of the plaint.
159. I would, at this stage, like to refer to a decision of Division Bench of
this Court in Mahesh Gupta versus Ranjit Singh and Others , AIR
2010 Delhi 4, and make specific reference to paragraph 7 thereof,
which reads:-
―7. The issue therefore is, can this application for amendment
be allowed. It is trite that the court which does not have
jurisdiction to try the matter would have no jurisdiction to pass
any orders which affect the rights of the parties. The orders
which are passed by a court which has no jurisdiction to
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 118 of 123



determine the matter, are without jurisdiction and, therefore, of
no effect and purport. The Court therefore which does not have
pecuniary jurisdiction cannot pass any orders allowing an
application seeking amendment of a plaint to bring the suit plaint
within the pecuniary jurisdiction of a Court.‖
I have reservations on the broad proposition as expounded in paragraph
7. Taken to its logical end, it would mean that even the subordinate
court would not have jurisdiction to decide an application for
amendment for enhancing the pecuniary value, for if the application 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
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 119 of 123



amendment may take the suit out of jurisdiction of the court is no
ground for refusing the amendment. In fact, a reading of the ratio
would show that even the converse was upheld. In the said case, the
High Court had rejected the amendment on the ground that the
valuation of the suit was sought to be increased from Rs.1 lac to Rs.10
lacs so as to only take the suit out from the jurisdiction of that court. It
was observed:-
―4. It is settled law that while considering whether the
amendment is to be granted or not, the Court does not go into the
merits of the matter and decide whether or not the claim made
therein is bonafide or not. That is a question which can only be
decided at the trial of the Suit. It is also settled law that merely
because an amendment may take the suit out of the jurisdiction of
that Court is no ground for refusing that amendment. We,
therefore, do not find any justifiable 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 Rs. 1 Lakh to Rs. 10 Lakh, the trial court will determine,
whether or not Court Fees are correctly paid.
5. The appeal stands disposed of accordingly. No order as to
costs‖
161. It can be urged that for every power there should be prior or a higher
law as a formalist may hold. But insistence of such a requirement may
not be entirely desirable and necessary for it may lead to infinite regress
and mandates validation for every action. To avoid this, the law
acknowledges that power and authority could be bestowed expropio
vigore , from its own strength. Such non-statutory power could be
traced to custom, consent or contract or evolution of natural law as
understood and developed by human reasoning. The principle that a
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 120 of 123



court has jurisdiction to determine the scope of its own jurisdiction has
gained recognition by the process of evolution. In this manner, the
general theory of jurisdiction equates the power to determine with the
existence of jurisdiction, to resolve the paradox and dilemma referred to
above. If we do not accept and apply this principle, and hold that the
principle of legal self-reference is not inherent, and the question or
challenge to jurisdiction can only be answered by another court, it
would enable a determined party to push back and delay the litigation.

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 he 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 of the suit being tried and decided in the High Court.
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 121 of 123



163. In view of the opinion expressed above, the Original Side of the High
Court being in seisin of the matter, would have the jurisdiction to
determine whether the suit should be transferred and the jurisdiction
would include the power to decide an application for amendment,
which if allowed, would mean that the suit is not to be transferred.
When the jurisdiction is established, it would be not correct to hold that
the procedural laws have been violated.
164. The question referred and answered is in the context in question i.e. the
suit was validly instituted as per Section 15 of the Code read with the
Delhi High Court Act, Sections 4 and 5 of the Amending Act of 2015,
th
the notification dated 24 November, 2015 and the suit is pending in
the High Court.
165. The question of law in the context and matrix in question has to be
answered in the affirmative holding that the Original Side of the High
Court can decide an application to amend the plaint and increase the
pecuniary valuation of the suit, where if the application is allowed, it
would result in the suit not being transferred.


(SANJIV KHANNA)
JUDGE

FINAL ORDER
06.09.2016

In view of the majority opinion, the question of law, in the context and
matrix in question, is answered in the affirmative, holding that the Original
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 122 of 123



Side of the High Court can decide the application to amend the plaint and
increase the pecuniary valuation of the suit, where if the application is
allowed, it would result in the suit not being transferred.
The amendment application would be listed before Judge of the
st
Original Side of the High Court on 21 September, 2016.
The amendment application would be decided on merits without being
influenced by any observations in the opinions, which are made to opine on
the question of law referred and answered. It is clarified that the observations
made in the context of and relating to the principles of amendment are of
general nature.


-sd-
(SANJIV KHANNA)
JUDGE


-sd-
(RAJIV SAHAI ENDLAW)
JUDGE


-sd-
(R.K. GAUBA)
JUDGE
SEPTEMBER 6, 2016
bs/yg/nk/VKR/ssn
IAs No.3856/2016 & 3857/2016 in CS(OS) No.1416/2009 Page 123 of 123