Bhaskar Bhattacharya, J.

1. This first miscellaneous appeal is at the instance of defendants in a suit for declaration and permanent injunction and is directed against Order dated March 14, 2005 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Title Suit No. 253 of 2005 thereby disposing of three applications, one under Order 39, Rules 1 and 2 read with Section 151 of the Code for prohibitory injunction filed by the plaintiff, the second one, also filed by the plaintiff, under Section 151 of the Code of Civil Procedure praying for mandatory order of injunction and the last one, under Order 39, Rule 4 of the Code of Civil Procedure filed by the present appellants.

2. The plaintiff/respondent filed the aforesaid suit being Title Suit No. 253 of 2005 in the City Civil Court at Calcutta thereby praying for the following relief :-

(i) Decree thereby declaring that the defendants have no right to change the position and frequency of the channel of the plaintiff i.e. "ATN Kolkata" being transmitted by the defendants in terms of the agreement dated November 5, 2002, from S-2 Band to any other Band;

(ii) Decree thereby declaring that the defendants their men and/or agent have no right to disconnect the connectivity of the plaintiff"s cable channel "ATN Kolkata";

(iii) Decree for declaration that the defendants are not entitled to claim a sum of Rs. 24,00,000/- per annum towards promotional charges without assigning any reasonable and concrete reason;

(iv) Permanent injunction thereby restraining the defendants their men and/or agent from changing the position and frequency of the channel of the plaintiff "ATN Kolkata" being transmitted by the defendants;

(v) Permanent injunction thereby restraining the defendants their men and/or agent from disconnecting the connectivity of the plaintiff"s cable channel "ATN Kolkata" being transmitted by the defendants;

(vi) Permanent injunction restraining the defendants from arbitrarily claiming Rs. 24,00,000/- per annum as promotional charges without assigning any reasonable and concrete reason;

(vii) Further injunctions;

(viii) Receiver;

(ix) Damages;

(x) Costs and incidentals to the suit;

(xi) Such further relief or reliefs as to this learned Court may seem fit and proper;

3. The case made out by the plaintiffs was that it was telecasting and marketing one of the most popular Bengali Channels, namely, "ATN Kolkata". The defendant No. 1 is a Master Service Operator (MSO) who after installing satellite antenna transmits the channels to the viewers through local cable operators. According to the plaintiff, there was an agreement between the parties by which the defendants agreed to provide space to transmit the channel of the plaintiff as S. 2 frequency at 112.3 MHz. in its network with effect from December 31, 2002 for continuous 24 hours and the said agreement is still subsisting. The transmission, according to the plaintiff, should be through the plaintiffs" equipments from their control room but in case there was any problem with the equipments of the plaintiff, the defendants should provide transmission through their equipments and control room The plaintiff claimed that the defendants further agreed that the frequency and position of the channel should not be changed and at a latter time, if due to exigency beyond the control of the defendants, the position or frequency of the plaintiff"s channel is required to be changed, the same should not be higher than one provided initially to the channel. It was further agreed that three months prior notice should be given to the plaintiff by the defendants, in case, they intended to change the frequency or position of the plaintiffs channel and the agreed amount was to be paid by the plaintiff to the defendants towards transmission fees as mentioned in the agreement.

4. The plaintiff alleged that in spite of the fact that the plaintiff complied with all the agreed terms, the defendants illegally demanded a sum of Rs. 24 lakh per annum towards the transmission fees and threatened the plaintiff that if it wanted transmission of the channel, it should send the said amount within a specified date and sign a new agreement with them failing which the defendants would disconnect the plaintiffs channel. Hence the suit.

5. After filing of such a suit on the basis of the aforesaid allegations, the plaintiff filed an application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure thereby praying for an order of temporary injunction restraining the defendants, their men and agents from changing the position and frequency of the channel of the plaintiffs i.e. "ATN Kolkata", transmitted by defendants in any manner and also from disconnecting the transmission or the connectivity of the plaintiffs cable channel "ATN Kolkata" in any manner and further restraining the defendants from demanding or claiming Rs. 24 lakh per annum as promotional charge.

6. On the basis of such application, the learned trial Judge issued notice upon the defendants to show-cause why the prayer of the plaintiff should not be granted and was further pleased to pass an interim order of injunction restraining the defendants from changing the position and frequency of channel "ATN Kolkata" transmitted by the defendants and also from disconnecting the transmission of "ATN Kolkata" on condition that plaintiffs should execute a Bank Guarantee in favour of the defendants within seven days to the tune of Rs. 6 lakh. Such interim order was granted till 24th March, 2005.

7. Subsequently, the plaintiff came up with an application under Section 151 of the Code of Civil Procedure thereby praying for an order of mandatory injunction on March 14, 2005 alleging that in spite of existence of order of ad interim injunction the defendants had disconnected the transmission and thus prayed for a direction upon the present appellants to restore the services of the transmission of "ATN Kolkata" under S-2 Band in favour of the defendants and the learned trial Judge on March 4, 2005 passed an ad interim order of mandatory injunction to that effect on such application.

8. After getting information about passing of the aforesaid orders passed by the learned trial Judge through Advocate’s letter, the present appellants filed an application under Order 39, Rule 4 of the Code of Civil Procedure for vacating both the ad interim order of prohibitory injunction and the mandatory injunction and the defence of the appellants was that there was no subsisting agreement between the parties as the plaintiffs had violated the terms of agreement by not making payment of the amount due and payable to the defendants. Furthermore, the orders of ad interim prohibitory injunction and mandatory injunction were challenged by raising various pleas on question of law.

9. By the order impugned herein, the learned trial Judge has made the earlier and interim orders of prohibitory injunction and mandatory injunction absolute and at the same time, has dismissed the application under Order 39, Rule 4 of the Code of Civil Procedure filed by the present appellants.

10. Being dissatisfied, the defendants have come up with the present appeal.

11. At the time of hearing of this appeal, although elaborate argument was made by the learned counsel for the parties both on law and fact as to whether in such a case, a Court can grant prohibitory injunction restraining the defendants from disconnection of transmission of the channel of the plaintiff, whether there was any existing agreement between the parties or whether the plaintiff really violated the terms and conditions of the agreement entered into between the parties, we are of the view that without going into those questions, this appeal can be disposed of on a pure question of law raised by Mr. Chatterjee appearing on behalf of the appellants.

12. According to Mr. Chatterjee, on the basis of the averments made in the plaint itself, the suit is deliberately undervalued and as such, it was the duty of the learned trial Judge to return the plaint for presentation before appropriate forum. Mr. Chatterjee contends that on the basis of averments made in the plaint, the suit should be valued at least at Rs. 24 lakh for declaration and at an equal amount, for permanent injunction and in such a situation, the City Civil Court at Calcutta could not have pecuniary jurisdiction to entertain the suit. In other words, Mr. Chatterjee contends that the suit could not be valued at Rs. 50 for declaration and Rs. 50 for permanent injunction thereby bringing the case within the pecuniary jurisdiction of the City Civil Court.

13. Mr. Roy Chowdhury, the learned senior counsel appearing on behalf of the plaintiff-respondents has, however, opposed the aforesaid contention of Mr. Chatterjee by submitting that his client is here and now ready to delete prayer (iii) and prayer (v) of the plaint and if these two prayers are deleted, the suit is quite maintainable before the City Civil Court at Calcutta. According to Mr. Roy Chowdhury, a litigant at any point of time can abandon a part of his claims made in the suit and restrict his submission to a claim which will keep the suit within the pecuniary limit of the Court where the same is pending. Mr. Roy Chowdhury, thus, prays for deciding the appeal on merit after recording his submission that his client is not pressing prayer (iii) and prayer (v) made in the plaint.

14. Therefore, the questions that fall for determination in this appeal is whether the suit was really undervalued and if it is so, whether a plaintiffs can before an appellate Court dealing with an appeal against the order of injunction can abandon a part of the claim of the suit so as to justify passing of the order of temporary prohibitory and mandatory injunction by a Court having no pecuniary jurisdiction to such an undervalued suit.

15. To appreciate the question whether the suit was really undervalued, we propose to quote paragraphs 51 and 52 of the plaint which point out how cause of action had arisen and the statements regarding valuation and court fees.

"51. That the cause of action for the present suit arose on August 22, 2002, when the defendants offered to provide transmission to the plaintiff’s Channel and it further arose on November 5, 2002 when the plaintiffs and defendants entered into an agreement for transmission of the plaintiff’s Channel and it further arose on February 7, 2005 when the defendants without prior intimation to the plaintiffs changed the position and frequency of the plaintiffs channel and it further arose on February 9, 2005 and February 19, 2005 when the plaintiff paid the sum of Rs. 82,850/- to the defendants as demanded by them and it finally arose on February 22, 2005 when in spite of receipt of the sum of Rs. 85,850/- the defendants demanded a further sum of Rs. 24,00,000/- per annum from the plaintiff and threatened to disconnect the transmission of the plaintiffs channel, the cause of action arose at 6, Ganesh Chandra Avenue, Kolkata-72 at the office of the defendants where the defendants agreed and accepted the terms of the plaintiff which is within the jurisdiction of this learned Court and the same is continuing from day to day.

52. For the purpose of jurisdiction and payment of court fees, the plaintiffs value the suit at Rs. 50/- towards declaration and at Rs. 50/- towards injunction. The suit is thus at present valued at Rs. 100/- and Court fees are accordingly paid thereon."

16. After going through the aforesaid averments made in paragraphs 51 and 52 of the plaint it is clear that on its own showing, the plaintiff alleged that the cause of action arose finally on February 22, 2005 when in spite of receipt of sum of Rs. 85,850/- the defendants demanded a further sum of Rs. 24 lakh per annum from the plaintiffs and threatened to disconnect the transmission of the plaintiffs' channel.

17. Therefore, in a suit alleging the aforesaid cause of action there was no just cause of valuing the suit at Rs. 50 for declaration and a further sum of Rs. 50 for injunction. On the basis of the averments made in the plaint itself, the suit should have been valued at least Rs. 24 lakh and if that be so, the City Civil Court at Calcutta had no pecuniary jurisdiction to entertain the suit. Therefore, on the face of the plaint allegations, the suit is grossly undervalued and thus, we find substance in the contention of learned advocate for the appellants that the learned Trial Judge should not have entertained the application for temporary prohibitory injunction or mandatory injunction but in stead, ought to have returned the plaint for presentation before appropriate forum.

18. The next question is whether the plaintiff in an appeal against order of injunction granted in such a suit can abandon prayer (iii) and prayer (v) for the purpose of removing the defect of pecuniary jurisdiction of the learned trial Court.

19. An Appellate Court while deciding an appeal against order granting temporary prohibitory injunction or mandatory injunction is only required to see whether the learned Trial Judge erred in law in passing such order.If it appears to the appellate Court that prima facie the learned Trial Judge had no pecuniary jurisdiction but notwithstanding such fact, it granted an order of injunction with a finding that plaintiff proved prima facie case, such order is liable to be set aside, because of the findings of the appellate Court that prima facie, the Court had no pecuniary jurisdiction even on the basis of averments made in the plaint and that the suit was deliberately undervalued to bring it within the jurisdiction of the Court.

20. It is true that the plaintiff can at any point of time abandon part of his claims but such relinquishment can be made by filing appropriate application under Order 6, Rule 17 of the Code by amending the plaint.

21. It is now settled position of law that if the Court does not have pecuniary jurisdiction to entertain a particular suit as it stands, it has no power to entertain and allow an application for amendment of plaint for the purpose of reducing the value of the claim so as to bring it within the jurisdiction of the Court. (See Mst. Zohara Khatoon v. Mohammad Jane Alam reported in AIR 1978 Cal 133 [LQ/CalHC/1977/328] ) (DB) relied on in Mohammad Jebbas Ali v. Rahima Bibi reported in 1983 (2) Cal HN 7 (DB). In such a situation, if the plaintiff wants to relinquish part of the claims by filing an application of amendment of plaint, the Court should return the plaint along with the application of amendment of plaint to the learned Advocate for the plaintiff for presentation before the Court where it ought to have been filed and before such Court, the plaintiff should press the application thereby praying for reducing the valuation of the suit by giving up a part of the claims. Therefore, it is not even possible for the learned Trial Judge to allow an application for amendment of plaint thereby permitting the plaintiff to relinquish some of the relief. Whether, in the fact of the present case, such splitting of claims is possible or not having regard to the averments made in the plaint, is a question which should be dealt with by the appropriate Court, if such application for amendment is filed and we refrain from making any comment on such question.But we are of the view that before this Court, the plaintiffs cannot pray for abandoning part of the claims for the purpose of justifying an order of injunction passed in a suit which was prima facie undervalued.

22. We, thus, find that this is a case where, prima facie, the learned Trial Judge had no pecuniary jurisdiction to entertain the suit and as such, order of grant of temporary prohibitory and mandatory injunction was improper.

23. We, thus, set aside the order impugned herein by which the Court passed temporary prohibitory order of injunction as well as temporary mandatory injunction.

24. We make it clear that we have not gone into the other questions whether in the facts of the present case the plaintiff is entitled to get an order of temporary prohibitory or mandatory injunction as the said question can be gone into if the suit is filed before the appropriate forum. We, therefore, allow this appeal and set aside the order impugned. The defendants are at liberty to make appropriate prayer under Order 7, Rule 10 of the Code of Civil Procedure before the learned Trial Judge. In the facts and circumstances, there will be, however, no order as to costs.

25. I agree.