1. This is a Chamber Summons for amendment of the plaint as per the draft contained in the Schedule to the Chamber Summons. The proposed amendments have been vigorously and vehemently opposed and in order to consider whether the application should be allowed, a few necessary facts may be set out:
The main prayer in the plaint is for an injunction. The Plaintiffs have alleged that they agreed to purchase from the defendants the premises mentioned in the suit. Their case in the plaint is that at a meeting of the Managing Committee of the defendants, held on 28th Mav. 1966 it was resolved that immediate possession of the premises mentioned in the suit should be handed over to the plaintiffs. The Plaintiffs also refer to a letter written by the plaintiffs on 2nd June 1966 wherein it has been recorded that possession has been handed over to the plaintiffs. The plaintiffs further allege that the plaintiffs have paid the full price in respect of the suit premises even though they were in an incomplete state reiving upon the premises of the defendants that they would complete the construction thereof, subsequently. The further case in the plaint is that on or about 21st October 1968 under the orders of the Secretary, Maintenance Committee, of the defendants, the looks of the premises situate on the ground floor, viz.. the hall and the flat, were forcibly broken open and that the bricks from incomplete walls of the flats on the 10th floor of the building were being removed by breaking the walls and the same were brought down on the ground floor. The plaintiffs have contended that the defendants or the members of their Maintenance Committee have no right whatsoever to enter into or remain in or upon the suit premises and that their action amounts to trespass. There is only one main prayer in the plaint. Bv this prayer the Plaintiffs have asked for a permanent injunction restraining the defendants, their servants and agents from in any manner entering or remaining in or upon the suit premises and from committing any trespass thereupon and/or from in any manner damaging the same and/or from carrying out or altering the construction work of the suit premises and/or from removing the bricks and other building materials from the construction work so far carried out in the said premises and/or from disturbing or interfering with the plaintiffs' possession, use and occupation of the suit premises.
2. The plaint in the suit was originally filed in the Bombay City Civil Court on 2nd November 1968 and the same was numbered as suit No. 7480 of 1968. Pursuant to the decision of the Division Bench of this Court reported in : AIR1969Bom423 and in view of the averments in paragraph 8 of the plaint wherein the plaintiffs averred that the subject-matter of the suit was not susceptible of monetary evaluation and paid fixed Court Fees of Rs. 30/- the plaint was on 9th November 1968 ordered to be returned for presentation to the proper Court, on 29th November 1968 the plaint with the necessary alterations was filed in this Court and the suit was numbered as Short Cause Suit No. 788 of 1968. The plaintiffs have also taken out a Notice of Motion in the suit which is still pending.
3. Thereafter the State Legislature enacted Maharashtra Act No. IX of 1970 which came into force on 16th March 1970. The plaintiffs thereafter took out a Chamber Summons dated 6th April 1670 in accordance with the provisions of Section 6(2)(c) of the said Act. By this Chamber Summons the plaintiffs sought a direction from this Court that the suit alone with the Notice of Motion dated 29th November 1968 which was pending be transferred from the file of this Court to that of the Bombay City Civil Court. That Chamber Summons was heard by Kantawala, J. on 18th April 1970 and by an Order made on that day, the Chamber Summons was dismissed with costs. Kantawala. J. construed the plaint and came to the conclusion that the prayer for injunction sought for by the plaintiffs was in effect a prayer for possession and that the plaintiffs would have to pay Court fees on the footing that the prayer is for possession and injunction. The relevant observations from the Order of Kantawala, J. are as follows :--
'In deciding the question whether the subject-matter of the suit is susceptible of monetary evaluation or is not capable of being estimated in money value, regard must be had to the substance of the claim in the suit and not on a mere averment that it is not so capable of monetary evaluation. The material averments in the plaint indicate that it is the case of the plaintiffs that pursuant to the agreement entered into with the defendants the managing committee of the defendants at its meeting held on May 25, 1966 resolved that immediate possession of the suit premises be handed over to the plaintiffs. They further contend that pursuant to this resolution, possession of the premises was in fact handed over to the plaintiffs. Mr. Dhanuka contends that as the plaintiffs are thus in possession of the suit premises, a mere suit for injunction is maintainable and that the plaintiffs are within their rights in stating that the subject-matter of the suit is not capable of monetary evaluation. The later averments, in the plaint, however, show that this contention is not correct. In fact the plaintiffs distinctly allege that the members of the maintenance committee of defendants' Society have broken open the looks of the premises on the ground floor, namely, the hall and the flat and that they are removing the bricks from the incomplete walls of the flats on the 10th storey of the building These averments therefore, indicate that it is the case of the plaintiffs that by a wrongful act their possession has been trespassed upon and the office bearers of the defendants have forcibly taken possession of the suit premises and committing acts of trespass. It is in the light of this position that they contend that the office bearers of the defendants have no right to enter or remain in or upon the suit premises and the injunction which they have proved for in this suit is inter alia for restraining the defendants, their servants and agents from entering or remaining in or upon the suit premises etc. This in effect is a prayer for possession because it is implicit in this prayer that the defendants or its office bearers are in wrongful possession of the suit premises and are committing acts of trespass thereupon. When such is the position, the plaintiffs have to pay court fees on the footing that the prayer is for possession and injunction. It is not disputed in this case that if this is regarded as a suit for possession and injunction, then the value of the subject-matter of the suit is susceptible of monetary evaluation. Under the circumstances, the plaintiffs are not entitled to have the suit transferred to the Bombay City Civil Court in view of the provisions of Section 6(2)(c) of the Maharashtra Act No. IX of 1970'.
It is because of the aforesaid Order that the plaintiffs have taken out the present Chamber Summons for amendment of the plaint. In the affidavit in support made by a partner of the plaintiffs, the plaintiffs' claim to be still in possession of the suit premises has been reiterated and the plaintiffs have submitted that they wish to amend the plaint so as to clarify the matter, the clarification being to the effect that, according to the plaintiffs, they are in possession of the suit premises and that they have no intention to sue the defendants for possession of the suit premises. The reasons for seeking the amendment have been set out and explained in paragraph 4 of the affidavit in support.
4. The proposed amendments have been opposed on a number of grounds. These may be briefly set out as follows:
(1) The application is mala fide since it seeks to circumvent the effect of the Order of Kantawala. J. dated 13-4-1970 and should not be allowed since it would permit the plaintiffs to flout the said order.
(2) The proposed amendment would deprive the defendants of a right which has accrued to them by reason of that order, the contention being that under the provisions of Order 7, Rule 11 of the Civil Procedure Code if the plaintiffs are required to pay court fees on the prayer in the suit being valued as a prayer for possession and if they fail to pav the same, the plaint is liable to be reiected.
(3) The proposed amendment of the plaint is not necessary in order to seek the decision of the real question in controversy between the parties.
(4) That the amendment should not be granted since granting it would be tantamount to this court sitting in appeal from or revising or reviewing the order of Kantawala, J.
(5) That the averments in the proposed amendment are contrary to the averments in the plaint as construed by Kantawala. J. and. therefore, the plaintiffs should not be permitted to make a complete volte-face in this matter.
(6) The effect of the amendment if allowed will be to take away the jurisdiction of this Court and this cannot or should not be allowed to be done.
5. It may be mentioned in connection with ground Nos. 1 and 4 noted above that apart from prayer (a) of the Chamber Summons under which permission to amend has been sought, the plaintiffs have in prayer (b) also sought certain consequential directions on the question of court fees and iurisdiction. During the course of arguments I had indicated to Mr. Dhanuka that I proposed not to give anv such directions upon this Chamber Summons but to relegate the parties to take out further proceedings as they may be advised in order to seek the directions after disposing of the application for amendment. As far as ground Nos. 1 and 4 above are concerned, I dp not accept the contention that the application is mala fide inasmuch as the plaintiffs desire to get out of the effect of the Order of Kantawala. J. The plaintiffs' contention at all times in this suit appears to be that they have been in juridical possession of the suit premises and that in the circumstances the suit as framed with a prayer simpliciter for injunction is sufficient and the plaintiffs are not bound to nor can be compelled to seek possession. Kelvins upon certain averments and words of the plaint, the plaint has been construed as one in substance for recovery of possession and injunction though in form only for injunction. The plaintiffs by the proposed amendments seek a clarification which would restore the plaint to the one which the plaintiffs have all along intended to file and the application for this purpose cannot be said to be mala fide nor in considering or granting the same can I be said to be sitting in appeal from or revising or reviewing the Order of Kantawala. J. It may be incidentally mentioned that the plaintiffs had perferred a Letters Patent Appeal from the order of Kantawala, J. but the same was not admitted.
6. As far as the second ground of opposition is concerned Mr. Dhanuka has drawn my attention to the provisions of Order 7, Rule 13 of the Civil P. C. under which the plaintiffs are not precluded from refiling a suit on the same cause of action. Thus in my opinion there is no substantive right of the defendants which has accrued to them by reason of the Order of Kantawala, J. which the proposed amendments would have the effect of divesting.
7. It may be clarified that if the proposed amendments are allowed the plaintiffs would be compelled to prove to the Court at the time of the hearing of the action that they are in juridical possession of the suit premises and if the plaintiffs fail to establish this they would fail in the suit. Similarly in the interlocutory proceedings, if the plaintiffs fail to establish prima facie that they are in juridical possession, they may not get the interlocutory relief sought for.
8. Mr. Mridul then drew my attention to the provisions of Order 6. Rule 17 in order to submit that the amendment was not necessary to determine the real question in controversy between the parties to the suit. This ignores the position that the plaintiffs have all along been maintaining that they are in juridical possession, that the defendants Ere attempting to interfere with this juridical possession and therefore the plaintiffs are entitled to the injunction sought for in prayer (a) of the plaint. To this case the defendants have replied and contended that the plaintiffs are not in possession of the suit premises and that the plaintiffs are not entitled to the relief of injunction sought for or to any other relief in the circumstances of the case. In my opinion, there is no substance in this contention of Mr. Mridul.
9. There is yet another aspect of the matter which may be pointed out at this juncture. By reason of the Order of 13th April 1970 passed by Kantawala, J. the plaintiffs would be required to pay court-fees on the plaint on the basis that they have sued for possession. It is the admitted position that if the suit is valued as one for possession, the plaintiffs would have to continue the suit on the Original Side of the High Court. By the proposed amendments the plaintiffs seek to have adjudication of what, according to the plaintiffs is the real controversy between the parties, viz. the right of the plaintiffs to obtain an injunction for which according to the plaintiffs, fixed court-fees are payable. Again the plaintiffs desire that the matter should go on in the original forum in which they had instituted the suit. I do not wish to express any opinion as to whether the plaintiffs' contentions are correct or not but it is clear to me that the defendants can have no vested right to insist that the plaintiffs should pay heavy court-fees or go on which the action on the Original Side of the High Court.
10. This brings us to the last ground on which the Counsel have cited a number of authorities- in Singara v. Govindswami AIR 1928 Mad 400, Venkatasubba Rao, J. of the Madras High Court sitting singly observed that no Court will permit a plaint to be so amended as to oust its own jurisdiction to try the suit. This decision was approved by a Division Bench of the Nagpur High Court consisting of Hidayatullah and R. Kaushalendra Rao, JJ. In Lalii v. Narotam AIR 1953 Nag 273, Paragraphs 4 and 5 of the judgment are material lor the purpose of this application and read as follows :--
'4. The jurisdiction of a Court is determined by the nature of the plaint. That is well settled and authorities need not be cited. Once the jurisdiction is to be found it inheres in the court until something supervenes which ousts it.' The question is whether the court by its own action can create that situation. In our judgment, the best answer to this and we say it respectfully is furnished in the observations of Venkatasubba Rao, J. In AIR 1928 Mad 400 where the learned Judge observed as follows :--
'I conceive that no Court will permit a plaint to be so amended as to oust its own jurisdiction to try the suit. 'Now, that is the procedure to be followed bv the Court? if the amendment is not to be allowed, must the amendment be shut out altogether, or must the plaint together with the application for amendment be returned to the plaintiff for presentation to the proper Court? Here something fundamental is involved. If the Court disallows the amendment simply on the ground that it has no jurisdiction to entertain it, it might be shutting out a claim which is otherwise good, and if the legal proposition were correct, then the plaintiff would have no remedy in respect of the claim he sought to add. He cannot, in the circumstances, ask that the plaint be returned to him. because the return of a plaint is dependent upon considerations involved in the first rule of Order 23. It has been laid down in Kannu swami Pillai v. Jagathambal AIR 1919 Mad 1071 that a plaint cannot be asked to be returned with a right to present it merely because the plaintiff wants to make some amendment in his claim. In that case, the claim was Undervalued and the plaint was returned at the request of the plaintiff so that the claim be amended. This was allowed by the trial Court and was taken to be a wrong exercise of discretion. It is thus clear that the plaintiff cannot ask that the plaint be returned, so that he can make the amendment on his own.
5. The second leg of the difficulty is clearly brought into relief when we view the matter from another angle. When the Court is faced with the question of allowing an amendment which taken together with the original claim exceeds its pecuniary jurisdiction, it is in effect trying a suit beyond its pecuniary jurisdiction. By adding the new relief which the plaintiff claims, the Court in effect amends the plaint as presented because it is also well settled that all amendments relate back to the presentation of the plaint. This clears the difficulty because the Court is thereby rendered incompetent to entertain the claim for amendment at all. In such a situation, because the plaintiff cannot ask for the return of the plaint, nor can the court cause the amendment the logical procedure to follow would be to return the plaint together with the application for amendment for the consideration of that Court which has jurisdiction to consider the original claim and the claim sought by the amendment not taken separately but together.'
11. My attention has been drawn by Mr. Dhanuka to Kundan Mal v. Thikana Sirvari, . where K. K. Sharma, J., of the Rajasthan High Court dissented from AIR 1928 Mad 400 and preferred to agree with ruling of the Hyderabad High Court in Goverdhan Bang v. Govt. of the Union of India AIR 1953 Hyd 212. It appears that the Division Bench judgment of the Nagpur High Court was not cited before the Rajasthan High Court. However, the Madras judgment as well as the Nagpur Division Bench Judgment was considered by the Kerala High Court in Sreedharan v. P. S. Job : AIR1969Ker75 , where the Madras and Nagpur judgments were dissented from and it was held that the amendment cannot be refused merely on the ground that the effect of the proposed amendment would be to deprive the court of jurisdiction to try the suit. Provisions of Order 7, Rule 10 were considered by T. S. Krishnamoorthy Iyer, J. of the Kerala High Court and he held that it would be possible to invoke the provisions of Order 7, Rule 10 (1) of the Civil P. C. only after the amendment of the plaint the effect of which alone will be to deprive the jurisdiction of the Court to try the suit. It was further held that no question of applicability of Order 7. Rule 10 (1) can arise before that stage. It was further observed that it was not possible to agree with the Nagpur Division Bench view that the application for amendment should not be considered by the Court in which the suit was filed but by the court in which the suit would go after the amendment was allowed. It was further observed that the fact that the amendment relates back to the presentation of the claim cannot affect the question at all.
12. These are the four main authorities relevant to the objection under consideration, though my attention was also drawn to the observations in Mulla's Code of Civil Procedure 13th Edition at page 737 and to : (1) Chatu-Lal v. Panchanan, : AIR1953Cal755 . (2) Ram Gopal v. Bhikari. : AIR1959Ori16 . (3) Bhavani v. Managamrna AIR 1949 Mad 208 and (4) Legon v. Count (1945) 1 All ER 710.
13. I may mention that in the Madras case AIR 1949 Mad 208 Mack. J. held that an application for amendment which would oust the jurisdiction of the court cannot be rejected merely on this footing but that the court should allow the amendment and return the plaint as amended for presentation to the proper Court. In the Orissa case referred to above : AIR1959Ori16 Barman. J. observed that the plaintiffs in asking for the amendment of the plaint as proved for were so doing at their own risk as to the ultimate fate of the suit. In the plaint before me the plaint has been construed by Kantawala. J. as one in substance both for possession and for injunction. The plaintiffs in effect by these amendments seek to make clear that they only want an injunction and are not seeking an order for possession. In my opinion, considering the authorities cited at the Bar before me there is no reason why the proposed amendment ought not to be allowed.
14. I make it clear, however, that the plaintiffs are seeking the amendments at their own risk and if they fail to establish that they are in juridical possession of the suit premises they are likely to fail at the hearing of the action. In my opinion, the consideration that if the proposed amendment is allowed the plaint might have to be transferred to the City Civil Court (where the plaintiffs had originally filed the suit) has no bearing on the merits of the proposed application for amendment and I must most respectfully differ from the views expressed in AIR 1928 Mad 400 and AIR 1953 Nag 273.
15. My attention was drawn by Mr. Mridul to the submission in th' last sentence of the proposed paragraph 5-A of the plaint. I had some hesitation as to whether this should be allowed to be incorporated in the plaint or not. but considering that these are the plaintiffs' submissions which arc not binding on the court and which the Court may not accept as conclusive, I am inclined to allow these submissions also to be incorporated in the proposed amendment.
16. In the result, the Chamber Summons is made absolute in terms of prayer (a). As far as prayer (b) is concerned I do not propose to give any consequential direction or express any opinion on the question of court-fees and jurisdiction and the parties may take separate proceedings so far as these questions are concerned. The plaintiffs to carry out amendment at their own costs within two weeks from today. The plaintiffs must pay to the defendants the costs of this Chamber Summons Order accordingly. Counsel certified.
17. Amendment allowed.