JUDGMENT
R.K. Dash, J.
1. The order of the learned Addl. District Judge, Jajpur passed in Title Appeal No. 20 of 1991 allowing the plaintiff’s prayer for amendment of the plaint has been assailed in this revision.
2. The facts necessary for determining the question involved in the revision may be briefly stated thus : Plaintiff filed Title Suit No. 221 of 1988 in the Court of Munsif, Jajpur for permanent as well as mandatory injunction against the defendant in respect of the suit land having an area of Ac. 0.15 dec. out of plot No. 131 under Khata No. 12 of mouza Bhagabatpur. According to the plaintiff, he purchased the aforesaid land by a registered sale deed dated 10.2.1988 on payment of consideration of Rs. 15,000/-. Defendant in the written statement claiming to be the earlier purchaser of Ac. 0.08 dec. from the very same suit land claimed title to it and accordingly urged that the plaintiff’s simple suit for injunction is not maintainable in absence of prayer for declaration of title and recovery of possession. On the basis of the pleadings of the parties, the learned trial Court framed issues and proceeded with the trial. Both parties led evidence on conclusion whereof it held that without the prayer for declaration of title the plaintiff’s suit for permanent injunction is not maintainable especially when the defendant disputed his title and consequently dismissed the suit. Feeling aggrieved by the judgment and decree of the learned trial Court, the plaintiff preferred the aforesaid title appeal. In appeal, he came up with a petition for amendment of his pleadings by inserting the relief of declaration of title, confirmation of possession and in the alternative recovery of possession. For the purpose of jurisdiction and court fee he valued the relief at Rs. 15,000/- which was the valuation of the suit land.
3. Learned appellate Court allowed the plaintiff’s prayer for amendment and consequently set aside the decree of the trial Court and directed to take return of the plaint for filing in the proper Court having jurisdiction, since pursuant to the amendment, the suit was beyond the pecuniary jurisdiction of the Munsif who tried the suit. Aggrieved by the said order, the defendant approached this Court in Civil Revision No. 52 of 1993. The Court upon hearing set aside the order of amendment and remanded the matter to the appellate Court giving liberty to the plaintiff to file a fresh petition for amendment and the same having been rejected, the plaintiff filed Civil Revision No. 32 of 1996 in this Court. Since the learned counsel appearing for the plaintiff did not press the revision contending that the plaintiff would file a better application for amendment, the revision was dismissed as not pressed. It is thereafter the plaintiff filed 3rd application for amendment. In the initial petition for amendment, he had valued the reliefs at Rs. 15,000/- being the value of the suit land, but in the application for amendment, he reduced the same to Rs. 2100/- keeping the suit within the limit of pecuniary jurisdiction of the learned Munsif who had passed the decree. Learned appellate Court on consideration of the submissions raised by the parties, passed the impugned order allowing the plaintiff’s prayer for amendment which has been assailed in the present revision.
4. Learned appellate Court in paragraph 8 of the impugned order has observed that when a suit has been tried by a Court on merits, the decree should not be liable to be reversed on technical grounds unless it has resulted’in failure of justice, inasmuch as in view of the settled- position of law, objection as to jurisdiction, both territorial and pecuniary, being technical one, is not open to consideration by the appellate Court in absence of there being any prejudice to have been caused to the party challenging the decree on the ground of jurisdiction. In the present case the defendant having not shown that the proposed amendment if allowed would cause any prejudice to him and in view of the nature of controversy, the amendment should be allowed for resolution of all the questions involved in the suit.
5. It is the settled position of law that discretion vests with the Court to allow the amendment and therefore, as general rule, leave to amend the pleading should be granted in order to avoid multiplicity of the proceeding. In view of the law decided by the Courts, grant of leave to amend the pleadings is the rule and refusal is exception. However, while liberally exercising the discretion care should be taken to see that injustice and prejudice of irremediable character are not inflicted on the other side. Amendment can be refused in the following circumstances:
(i) where it is not necessary for the purpose of determining the real question in controversy between the parties; fii) where the plaintiff’s suit would be wholly displaced by the proposed amendment;
(iii) where the effect of amendment would take away from the defendant a legal right which has accrued to him by lapse of time;
(iv) where the amendment would introduce totally different, new and inconsistent case and the application is made at a late stage of the proceedings; and
(v) where the application for amendment is not made in good faith.
Keeping the above in mind, it is necessary to find whether in the facts and circumstances of the present case, plaintiff’s prayer for amendment of his pleadings should be allowed or not.
6. To repeat with, the suit of the plaintiff being one for injunction simpliciter, he had valued at Rs. 200/- for the purpose of jurisdiction and court fee. The defendant in his written statement disputed the plaintiff’s title to the suit land and asserted that he has title to it. Accordingly, he contended that the simple suit for injunction is not maintainable without seeking the relief for declaration of title and recovery of possession. In view of such assertion the plaintiff ought to have amended his plaint and prayed for declaration of title. He however, did not do so and took the risk in contesting the suit. The trial Court on conclusion of the trial dismissed the suit on the ground that the plaintiff’s suit for injunction simpliciter is not maintainable without seeking declaration of title. In the appeal, while challenging the judgment and decree of the trial Court, the plaintiffs sought amendment of the plaint by inserting the relief for declaration of title, confirmation of possession and in alternative recovery of possession in respect of the suit land. Since the suit was coming Under Section 7(iv)(c) of the Court Fees Act, he also prayed for amendment of the valuation of the suit from Rs. 200/- to Rs. 15,000/- being the value of the suit land. It need be stated that the plaintiff claimed title to the suit land by virtue of purchase for a consideration of Rs. 15,000/-. The amendments as aforesaid having been allowed by the appellate Court, the judgment and decree were set aside and the plaintiff was asked to take return of the plaint to file in the proper Court having pecuniary jurisdiction. The order of the appellate Court was challenged by the defendant in this Court in Civil Revision No. 52 of 1993 and the Court while remanding the matter observed :
“x x x x The appellate Court is to be very careful while allowing amendment of the plaint specially when it has the effect of not only setting aside the decree already passed but also taking away jurisdiction of the trial Court on the ground of pecuniary jurisdiction.”
Perhaps because of the aforesaid observation, the plaintiff in a fresh application for amendment valued the relief at Rs. 2,100/- so as to bring the suit within the pecuniary jurisdiction of the Court which tried it.
7. The amendment of the pleadings as prayed for by the plaintiff consists of two parts, namely : (i) declaration of title, besides the relief of injunction which was initially prayed for; and (ii) amendment of the valuation at Rs. 2100/- of the purpose of court-fee and jurisdiction Rs. 2,000/- being the value of the suit iand and Rs. 100/- being the value of the relief of injunction. This was objected to by the defendant on the ground that the suit was under-valued, inasmuch as at the time of acquisition of the suit land by virtue of purchase the plaintiff had valued it at Rs. 1 5,000/-. So, according to the plaintiff’s own showing that being the value of the suit land, he could not reduce it to Rs. 2,000/- so as to bring the suit within the pecuniary jurisdiction of the Court which tried it. The aforesaid objection did not find favour with the learned appellate Court, since according to it, the pecuniary jurisdiction being a technical question, it will not affect the ultimate decision of the suit. Having thus held it allowed the amendment.
8. In course of argument learned counsel for defendant contended that since the plaintiff’s suit is for declaration of title with consequential relief, the court-fee payable thereon is Under Section 7(iv)(c) of the Court Fees Act and while valuing the relief for the purpose of court-fee and jurisdiction, the plaintiff is required to value the same according to the value of the suit land.
Learned counsel appearing for the plaintiff, on the other hand, urged that as the plaintiff’s suit is falling Under Section 8 of the Suits Valuation Act, he can put his own valuation on the claim and pay the court fee thereon and the defendant has no locus standi to challenge the same. He further submitted that while considering the plaintiff’s prayer for amendment, the defendant’s objection that the suit is undervalued cannot be decided on merit.
9. True it is, as provided in Section 8 of the Suits Valuation Act. the plaintiff has right to put his own valuation on the claim for the purpose of court-fee in a suit for declaration with consequential relief and the same would be the value for the purpose of jurisdiction; but it has been authoritatively held by the Supreme Court that he cannot arbitrarily put the valuation so as to bring the suit within the pecuniary jurisdiction of a Court. In the case of Smt. Tara Devi v. Sri Thakur Radha Krishna Maharaj : AIR 1987Supreme Court 2085. their Lordships relying upon the earlier decisions reported in AIR 1958 Supreme Court 245 (Sathappa Chettiar v. Ramanathan Chettiar) and/4/ft 1979 Supreme Court 989 (Meenakshisundaram Chettiar v. Venkatachalam Chettiar) observed thus :
“x x x x It is now well-settled by the decisions of this Court in Sathappa Chettiar v. Ramanathan Chettiar {supra) and Meenakshisundaram Chettiar v. Venkatachalam Chettiar {supra) that in a suit for declaration with consequential relief falling Under Section 7(iv)(c) of the Court-Fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court-fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same, x x x”
10. It may be noted that the plaintiff claimed his title to the suit land by virtue of purchase under the registered sale deed and value of the suit land as mentioned therein at the time of acquisition was Rs. 15,000/-. It was neither indicated in the petition for amendment nor it was brought to my notice in course of argument as to how and under what circumstances the suit land was valued at Rs. 2,000/- admittedly when at the time of acquisition by the plaintiff its value was Rs. 15,000/-. In my opinion, the plaintiff valued it arbitrarily so as to bring the suit within the pecuniary jurisdiction of the Court which passed the decree. Accepting the submission of the plaintiff’s counsel that the question whether the relief has been properly valued or not cannot be gone into while considering the prayer for amendment, but then, after the amendment is allowed the defendant has a right to challenge the valuation as put forth by the plaintiff. In the event the defendant’s objection is sustained, the next course open to the appellate Court is to direct the plaintiff to value the claim at Rs. 15,000/- and pay ad valorem court-fee thereon. After all this is done, the appellate Court will have no other alternative but to set aside the judgment and decree and direct the plaintiff to take return of the plaint and file it in the proper Court having pecuniary jurisdiction to entertain the suit. Learned counsel for the plaintiff urged that at any stage of the suit, whether it is pending before the Court of the first instance or before the appellate Court, the plaintiff can seek amendment of the pleadings and in the event of the suit after amendment ousts the pecuniary jurisdiction of the Court, the plaintiff can take return of the plaint and file it before proper Court. In support thereof reliance was placed on the decision of this Court in Lokanath Acharya v. Anam Narasimha Das and Ors. : 63 (1987) CLT 310. In that case the suit was for injunction simpliciter. Plaintiff’s case was that he was a monthly tenant in respect of the suit house and the defendants without taking recourse to the remedy provided under law attempted to throw him out from the house and accordingly he prayed fdr restraining them from interfering with his possession. In a separate application he prayed for temporary injunction which was refused and thereafter he came up with an application for amendment of the plaint. It was urged that the defendants wrongfully interfered with his possession resulting in loss of Rs. 4,100/-. So, he prayed for amendment of the pleadings by incorporating the relief of realisation of the aforesaid loss. The amendment was refused on the ground that it would oust the jurisdiction of the Court in seisin of the matter. While setting aside the said order the Court observed that refusal to allow amendment on the ground of ouster of jurisdiction is not sustainable. Reference was made to earlier decision of this Court reported in Kurupa Naik and Ors. v. Bhagaban Naik and Ors. : 34 (1968) CLT 1195, where it was held that if the amendment Would oust the pecuniary jurisdiction, the Court after allowing the same will return the plaint for being presented in the proper Court. There is no dispute about the legal proposition as held by this Court. The present case however, stands on altogether a different footing. The suit was finally heard and decided by the learned Munsif and the decree is now under challenge before the first appellate Court. If the plaintiff had sought amendment when the suit was pending adjudication, the Court after allowing the amendment would have asked him to take return of the plaint and file in the proper Court having pecuniary jurisdiction. But he did not do so, even though the defendant in the written statement denied his title to the suit land. He rather allowed the suit to be heard on merit and when the learned Munsif dismissed the suit on the ground that relief of injunction cannot be granted without determining the question of title, then only he while assailing the decree in appeal, sought amendment of his pleading. To my mind, therefore, the effect of amendment if allowed, will nullify the decree which otherwise could not have been set aside on merit by the appellate Court. In my opinion, therefore, the amendment, as prayed for by the plaintiff, cannot be allowed.
11. In the result, revision is allowed and the impugned order of the learned Addl. District Judge, Jajpur is set aside. In the circumstances, there shall be no order as to costs.