Harilal Kania, Kt., Ag. C.J.
1. This is an appeal from the order of Coyajee J. granting leave to the plaintiff to amend the plaint by inserting the claim of termination of the lease in suit on the ground of the alleged further breaches of two conditions of the lease after the filing of the suit, as set out in the order filed in Court. The plaintiff who is a landlord filed this suit to eject the defendant on the ground that the defendant had committed breaches of its conditions as set out in the plaint. The defendant filed his written statement denying the breaches. The parties went to a hearing and the Court heard evidence, we are told, for two or three days. It is alleged on behalf of the appellant that finding that the case as set out in the plaint would not be established, the plaintiff sought to rely on further alleged breaches. It was vehemently argued before the trial Court that the plaintiff should not be allowed to amend the plaint at that stage but the argument was not accepted. The learned Judge made an order granting leave to amend as asked by the plaintiff. The defendant has filed this appeal.
2. The first question is whether an appeal lies. Briefly put the plaintiff's case is that the defendant was a tenant, that he had committed breaches of the terms of the tenancy as set out in the plaint and therefore the plaintiff was entitled to possession. That is the; cause of action set out in the plaint. By the amendment allowed by the Court the plaintiff will be permitted to contend at the hearing that the defendant should be ejected also on the ground that after the filing of the suit he had committed further breaches of the terms, as set out in red ink in the plaint. The effect of the amendment only is that the plaintiff will be allowed to raise that contention. The granting of leave to amend does not amount to admitting that those contentions are valid, or that the plaintiff will get the relief because of those contentions. They will be decided:at the hearing on the merits of the disputes between the parties. At the present stage the question to be considered is whether an appeal lies from an order granting leave to amend, as made in the present case. The discussion should be considered as confined to the facts here.
3. On behalf of the appellant Mr. Desai relied on two judgments of the Calcutta High Court, viz. The Justices of the Peace for Calcutta v. The 'Oriental Gas Company (1872) 8 Beng. L.R. 433, and Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub: Rohima Bye v. Hadjee Mahomed Hadjee Joosub (1874) 13 Beng. L.R. 91. In those cases the question, what is a ' judgment' within the meaning of Clause 15 of the Letters Patent came to be considered by the Court. Under the Civil Procedure Code an order made under Order VI, Rule 17, is not appealable. Therefore, the appellant can succeed in his contention that an appeal lies only if the case is covered by the word ' judgment' in Clause 15 of the Letters Patent. According to those two decisions (which are accepted as classical pronouncements) a judgment must finally determine some right between the parties. That view is accepted by the Judicial Committee of the Privy Council in Hurrish Chunder Chowdhry v. Kali Sundari Debia . In spite of counsel's industry Mr. Desai has been unable to point out any precedent where this question was considered and decided by any Court. There is no reported decision in favour of the appellant.
4. In my opinion, no appeal lies in the present case. The only point decided by the learned trial Judge in giving leave to amend is that the plaintiff will be entitled to contend at the hearing that the defendant should be ejected on the grounds mentioned in the amendment. It is only an order in respect of the procedure of the suit and does not determine the rights of the parties on any question between them. It does not decide that the plaintiff is entitled to get any relief on those grounds, or in law is permitted to get those reliefs as claimed. The only permission granted is to urge the argument covered by the amendment. Mr. Desai strongly urged that under Order VI, r 17, the Court's jurisdiction and power is to allow an amendment only in respect of a controversy between the parties in the suit. It is beyond the jurisdiction and beyond the power of the Court to allow an amendment which goes beyond the scope of the suit, and as by granting leave to amend the Court has permitted the plaintiff to raise a contention which is outside the scope of the suit as framed, it is an exercise of jurisdiction which is not vested in the Court at all. According to the appellant this is not a case of irregular or improper exercise of jurisdiction. It is a case of complete want of jurisdiction. It was further argued that the question involved in the appeal relates to the jurisdiction of this Court and was covered by the word ' judgment' as -explained in the two Calcutta cases mentioned above. In my opinion, this line of reasoning is fallacious. So far as the Civil Procedure Code is concerned it will be noticed that it is divided into two parts. Part I contains the sections and Part II contains the Orders. As pointed out in Mani Mohan Mandal v. Ramtaran Mandal I.L.R. (1915) Cal. 148, the body of the Code creates jurisdiction, while the rules indicate the mode in which it is to be exercised. The body of the Code therefore is expressed in more general terms and is to be read in conjunction with the more particular provisions of the rules. These observations are applicable only to the extent the Code controls the jurisdiction of the High Court on its original side. It is, however, clear that the order for amendment as made in the present case does not in any way deal with the jurisdiction of the Court or affect its jurisdiction. The effect of the contention of the appellant only is that the learned trial Judge has tried to bring into the case a question for discussion, which it is contended is improper to be discussed in the case. Thus put it is obvious that the Court having jurisdiction to make the order has made it improperly in a case where it should not have done so. It is a case of irregular or improper exercise of jurisdiction and not a case of want of jurisdiction at all.
5. In my opinion therefore the appeal fails and is dismissed with costs.
6. I agree. Mr. Desai for the appellant has strongly relied on the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 IndAp 214: 24 Bom. L.R. 682. In that case their Lordships of the Privy Council observed that no power had been given to the Courts under Order VI, Rule 17, to enable one distinct cause of action to be substituted for another in order to change by means of amendment the subject matter of the suit. Mr. Desai reads into these observations of the Privy Council something which is really not there, viz, that the effect of these observations of the Privy Council is that the Court has no jurisdiction to make an order for amendment of the plaint which substitutes a totally different, new and inconsistent case for the case with which the plaintiff originally and initially came to the Court. All that their Lordships of the Privy Council meant by those observations was that if a learned Judge in exercising the jurisdiction, which he undoubtedly had under Order VI, Rule 17, to order an amendment of the plaint, ordered an amendment which had the effect of substituting an entirely different case for the case originally brought before the Court, then such an exercise of jurisdiction would be irregular or improper. Order VI, Rule 17, has nothing whatever to do with jurisdiction. It proceeds on the assumption that the Court has the jurisdiction in a suit pending before it to order amendment of pleadings. All that Order VI, Rule 17, provides is the mode in which the Court should exercise that jurisdiction, and it is clear both from the language of Order VI, Rule 17, and from the various judicial decisions that have been given on that rule that there are various grounds on which the Court should allow amendment of the plaint and there are various grounds where leave to amend should be refused. The highest that Mr. Desai can put his case is that in this particular case Coyajee J. should have refused leave to the plaintiff to amend the plaint. In my opinion that does not amount to a decision on merits of the question. The most that can be said is that the learned Judge exercised the jurisdiction vested in him under Order VI, Rule 17, in a manner not warranted by the provisions of that rule. That does not make it a question of jurisdiction nor does that suggest that the learned Judge had no jurisdiction to make the order. Therefore in my opinion the order before us is not an order which affects the merits of the question nor does it determine any right or liability. Therefore it is not a judgment within the accepted definition of that expression as used in Clause 15 of the Letters Patent.