JUDGMENT
H.N. Sarma, J.
1. The rejection of the plaint in title suit No. 13/99 vide order dated 16.3.2001 by the learned Civil Judge, Senior Division, Golaghat and or dismissal of the suit has resulted into this First Appeal. The plaintiff appellant filed the aforesaid title suit in the Court the Civil Judge, Sr. Division, Golaghat on 28.7.1999 prayer for:
1. Declaring the right title and interest of the plaintiff over the land and the houses as shown in schedule ‘C’ to the plaint;
2. Directing the defendant by any order of mandatory injunction to pull down and remove the wall raised on the passage within the land in the schedule “C” to the plaint;
3. For eviction of the defendant and his persons from the land and its house bearing holding No. 91 as shown in the schedule “D” to the plaint;
4. Granting temporary injunction restraining the defendant, his agents, workmen and any other person/persons in his behalf from raising any further constructions and from disrupting the electric connection of the Holding Nos. 91 and 92;
5. Granting perpetual injunction restraining the defendant from occupying land and the house in the schedule ‘D’ hereto and from raising any construction thereon;
6. For costs of the suit against the defendant;
7. For any other relief/reliefs deemed just, fair and proper.
3. The plaintiff valued the suit for the purpose of jurisdiction of Rs. 50,000, for court fee, the said suit was valued for Rs. 652 and accordingly the court fee of Rs. 87.95 was paid alongwith the plaint.
4. In paragraph 19 of the plaint statement regarding jurisdiction of the court is made as follows:
19. That for the purpose of the jurisdiction of the court, the suit is valued at Rs. 50,100 and for the purpose of the court fee it is valued at Rs. 652.00, i.e., Rs. 552.00 being 20 times of the land revenue of the suit patta which is Rs. 27.60 and Rs. 100.00 for injunction and the requisite court fee of Rs. 87.95 is paid hereon.
5. Summon in the suit having been served the defendant appeared and submitted their written statement. Amongst other averments in the written statement, the defendant also raised a plea of insufficient value of the suit and consequently non-payment of proper court fee was pleaded at paragraph 22 of the written statement, as follows:
22. That the plaintiff miserably failed to disclose how she assessed the suit for the purposes of jurisdiction of Rs. 50,100 (Rupees fifty thousand one hundred) only and for court fees at Ra. 652 (Rupees six hundred fifty two) only, Rs. 552 (Rupees five hundred fifty two) only being the 20 times of the land revenue of the suit patta, i.e., Rs. 27.60 (Rupees twenty seven and paise sixty) only and Rs. 100 (Rupees one hundred) only for injunction and paying in all Rs. 87.95 (Rupees eighty-seven and paise ninety-five) only as the requisite court fees. The plaintiff is bound to show how she arrived at the above valuation on each head, particularly paying 20 times of the land of the suit patta. According to the plaintiff, the suit land vide schedule ‘D’ of the plaint is 2 Katha – 13 Lechas, the revenue of which is not separately assessed, and the plaintiff is bound to pay requisite court fees on the valuation of the suit land. The plaintiff is also not paying requisite court fees on declaration.
6. When the suit was in the stage of framing of the issues pro forma defendant No. 1 having expired, plaintiff submitted an application for substitution of his legal heirs on 9.2.2000. Thereafter, the defendant/respondent by filing petition No. 380/2000 dated 16.3.2000 raised objection before the trial court to the effect that the suit was not properly valued and in fact such objection was also taken in paragraph 22 of the written statement quoted hereinabove. The said petition, regarding the valuation of the suit came up for hearing on 3.7.2000 and during the course of hearing, the plaintiff/appellant conceded to pay the ad valorem court fee “after assessing the value of the suit property”.
7. The next date of the case having fixed on 3.8.2000 the plaintiff prayed for time by seeking adjournment of the case. On subsequent date also, i.e., on 25.8.2000 such a prayer for adjournment was made on behalf of the plaintiff to facilitate him for amendment of the plaint. On 19.9.2000 the plaintiff filed an application for amendment of the plaint. In the said amendment application it is, inter alia, stated that it transpired that the suit was not clearly and properly valued and proper court fee is not paid and as such there is requirement of amendment of para 19 of the plaint. Similarly, plaintiff also sought to amend paragraph 13 of the plaint and the schedule of the suit was also sought to be amended. Opposing the prayer for amendment of the plaint, objection was filed on behalf of the defendant/respondent. The learned trial court heard on the point of amendment on 2.2.2001. The defendant/ respondent insisted for dismissal of the suit for non-compliance of the order under Order 7, Rule 11(b)(c). At the time of hearing of the matter, the plaintiff filed petition No. 183/01 praying for some time to pay the deficit court fee on the ground that the deficit court fee could not be paid due to ailment of the plaintiff and non-availability of court fee stamp.
8. The learned trial Court vide impugned judgment and order dated 16.3.2001 accepted the contention raised on behalf of the defendant respondent and rejected the plaint under provisions of Order 7, Rule 11 CPC without passing any order on the amendment petition filed by the plaintiff on which also argument was put forward by the parties.
9. While passing the impugned order, the learned trial court took note of the fact that in spite of the order dated 3.7.2000 the plaintiff did not pay the necessary court fee making proper assessment on the valuation of the suit. The prayer made by the plaintiff for some time vide petition No. 183/2000 praying for time to pay the Court fee was held to be vague and misleading. The learned trial court also took note of the fact that the plaintiff filed the said application praying for time during the course of hearing and not earlier. Upon dismissal of the suit-rejecting the plaint under Order 7, Rule 11 CPC a decree was drawn up against which the present appeal is filed by the plaintiff/appellant.
10. I have heard Mr. D.C. Mahanta learned senior Counsel appearing for the plaintiff/appellant and Mr. B.K. Goswami, learned senior counsel appearing for the defendant/respondent.
11. It is contended by Mr. Mahanta that the order passed by the learned trial court is vitiated for non-consideration of the application for amendment of the plaint filed by the plaintiff, inasmuch as by filing such amendment petition the plaintiff prayed for amendment of paras 19 and 23 of the plaint; by amending para 19 the plaintiff sought to amend jurisdictional value of the suit and by amending para 13, the plaintiff prayed for incorporation of certain other facts relating to the suit land in question, describing the same in a mere specific manner.
It is further submitted that it was incumbent upon the learned trial court to pass at least some order on the amendment petition before the dismissal of the suit by invoking power under Order 7, Rule 11 CPC for non-payment of the Court fee when the amendment sought for relates to the valuation of the suit and consequential fixation of the Court fee thereon.
12. Mr. B.K. Goswami, learned senior counsel for the respondent on the other hand submitted that since suit of the plaintiff was not properly valued, it was not necessary for the learned trial court to consider the application for amendment and such prayer for amendment can be considered in a properly constituted suit. Further argument of Mr. Goswami is that the plaintiff having conceded to pay the necessary court fee ought to have complied with the order and direction of the court dated 3.7.2000 and that not having been done, the learned trial court rightly dismissed the suit invoking the power under the provisions contained in Order 7, Rule 11 of the CPC and in doing so the court has not committed any error.
13. I have considered the rival submissions made by the learned counsel for the parties and also perused the connected record. Under the Provisions of Order 7, Rule 11 CPC, the court is empowered to reject a plaint on certain eventualities. For our ready reference, Order 7, Rule 11 is quoted herein below:
11. Rejection of plaint. – The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
14. In the instant case, although the learned trial court has not specifically stated under which clause of Order 7, Rule 11 the plaint has been rejected, as seen from the various earlier orders passed by the court, the plaint was rejected under the provisions under Order 7, Rule 11(b) which can be seen from the order dated 3.7.2000. By the said order, the learned trial court, inter alia, directed that:
So plaintiff will pay proper ad valorem court fee after assessing the proper value of the suit property.
15. On close scrutiny of the trial court’s record, this Court finds that the learned trial court has not assessed the proper value of the suit for which additional court fee was required to be paid by the plaintiff and no such order has been passed assessing the value on which the additional court fee is to be paid. Defendants in their written statement have also not specified what is the amount to be paid by the plaintiff as Court fee. The plaintiff filed the application for amendment of the suit by incorporating the value of the suit, by properly assessing the same. Learned trial court ignored this vital aspect of assessment of the value and fixation of court fee, which goes to the root of the issue. The plaintiff sought for amendment of the plaint by properly assessing the value of the suit property. Order 6, Rule 17 CPC, inter, alia provides that the court may at any stage of the proceeding can amend the pleadings in such manner and on such terms as may be judged and such amendment shall be made as may be necessary for the purpose of determining the real question of controversy between the parties. Although the plaintiff in their amendment petition specifically sought to revalue the suit at Rs. 1 lakh for the suit land and at Rs. 50,000 for the holdings thereon and at Rs. 100 for perpetual injunction, the learned trial court refrained from passing any order thereon in spite of hearing on this point of amendment. The very language of Order 6, Rule 17 CPC and various pronouncements made by the Apex Court as well as various High Court makes it clear that such amendment may be made at any stage of the proceeding, subject, of course, to certain restrictions as contained therein.
16. The plaintiff sought for amendment of the plaint by properly assessing the suit accepting the objection the defendant, because the plaintiff paid the Court fee on the original fixation of the suit value and the learned court accepting the same admitted the plaint. Thus, amendment of the plaint to raise the suit value in such a situation is essential and the learned trial court failed to exercise its jurisdiction vested on it by law in failing to pass a judicial order on the said prayer for amendment of the plaint.
Pleadings are required to be amended in order to determine the real question in controversy between the parties. The pleadings are also permitted to be amended to cure defects for just decision or the case. If there are certain removable and curable defects, those are always permitted to be cured by way of amendment, subject to the restrictions under Order 6, Rule 17 CPC. In this view of the matter, I do not find sufficient force on the submissions of Mr. Goswami that the learned trial court was not required to pass an order on the prayer for amendment as the suit was not properly valued or properly constituted and I am not inclined to accept the same. On examining the scope of Order 6, Rule 17, I find that it was the legal obligation and duty of the learned court below to pass an appropriate order on the amendment petition seeking to amend the valuation of the suit.
17. There is yet another aspect of the matter. Proviso to Order 71, Rule 11 clearly discloses that the time fixed by the court for correction of the valuation or submitting requisite stamp paper shall not be extended unless the court, for reasons recorded, is satisfied that the plaintiff was prevented by any cause of exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed and “refusal to extend such time would cause great injustice to the plaintiff”. Thus, the Court is not precluded from extending time for payment of requisite stamp paper or to correct the valuation of the suit, if such refusal to extend the time would cause “grave injustice” to the plaintiff. It is incumbent upon the learned trial court to carefully consider whether such refusal to extend time would cause grave injustice to the plaintiff. In the proviso to Order 7, Rule 11, by adding the provision “…and that refusal to extend such time would cause grave injustice to the plaintiff’ the Legislature has statutorily recognised the power and duty of a Court to do justice without any limitation. Although the relevant clauses of Order 7, Rule 11 have mandatory import, it is nevertheless has been made a justice oriented provision even by statutory incorporation. To this extent’ the sense of justice so incorporated has rational cognitive and reasoning elements. Bearing in mind such object and scope of the provisions, the learned trial court is to exercise the rather discretionary power to extend the time or not in such an eventuality. This power is circumscribed by such limitation.
The submission of Mr. B.K. Goswami, learned senior Counsel that rejection of the plaint does not preclude the plaintiff from presenting a fresh plaint, thereby causing no grave injustice to the plaintiff is also not acceptable on the ground that the cause of action for the suit arose on 23.9.1996 and 12.4.1999 and resorting to the provision of Order 7, Rule 13 and filing of fresh plaint at this stage would be barred by limitation, apart from other technical difficulties, causing grave injustice to the plaintiff. The impugned order is devoid of any such finding and the learned trial court did not at all consider whether refusal to extend the time for paying the necessary court fee would cause great injustice to the plaintiff. The impugned order does not satisfy the test as laid down in proviso to Order 7, Rule 11, referred to above.
18. Prior to the filing of the amendment petition in fact there has been no proper assessment of the court fee that was required to be paid by the plaintiff, same was sought to be brought, on record by filing the amendment petition by the plaintiff. Without specifying the proper value of the suit and the amount of court fee required to be paid, direction for supplying the necessary stamp paper and dismissal of the suit by returning the plaint as ordered by the impugned judgment, the learned trial court fell into a Himalayan error. Accordingly, the impugned judgment and order is illegal, unjust and is passed on infraction of proviso to Order 7, Rule 11 of the CPC and it is set aside and quashed.
19. Send back the original record to the trial court immediately. The plaintiff is directed to pay the necessary court fee in terms of the valuation as fixed by him in the amendment petition. Both the parties shall appear before the learned trial court on 30.1.2006 on which date learned trial court will fix a date for payment of necessary court fee, prior to which, of course, the learned trial court will pass necessary order on the amendment petition. No costs.