Skip to content


Benisham Mohanlal Khetan Vs. Mahadeo Tukaram Borkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 795 of 1981
Judge
Reported in(1987)87BOMLR397; 1985MhLJ616
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 7, Rule 10
AppellantBenisham Mohanlal Khetan
RespondentMahadeo Tukaram Borkar
Appellant AdvocateV.V. Deo, ;W.G. Deo and ;Y.D. Ramtake, Advs.
Respondent AdvocateS.K. Sanyal and ;A.P. Shinde, Advs.
DispositionRevision dismissed
Excerpt:
.....city civil court, madras, in exercise of powers under clause 13 of the letters patent by the high court to itself in exercise of its extra-ordinary original civil jurisdiction......13 of the letters patent by the high court to itself in exercise of its extra-ordinary original civil jurisdiction. the effect of the proposed amendment would have been to convert the suit into a suit which the city civil court would have no jurisdiction to try. high court refused to grant such amendment considering the powers under clause 13 of the letters patent as decided in the famous case of m/s. annie besant v. g. narayanan, a.i.r. 1947 pc 41 in which it is held that the powers of the high court in dealing with such suits transferred under clause 13 of the letters patent would be the powers which but for the transfer might have been exercised by the court from which the transfer was made. thus, the madras decision is rendered in entirely different back ground. moreover, there is.....
Judgment:

V.A. Mohta, J.

1. This reference has been made to resolve a conflict on a point-Can a Civil Court under Order 6, Rule 17 of the Civil Procedure Code allow the plaint to be so amended as to result in ousting its own jurisdiction in the matter. In M/s. R. Jaikrishna & Co. v. A-1 Co-operating Housing Society Limited, 1971 Mh.L.J. 472 a Single Bench of this Court took a view that amendment cannot be refused merely on the ground that its effect would be to deprive the Court of jurisdiction to try the suit. Another Single Bench in the case of M/s. Nareshchandra and Co. v. M/s. New Shriram Motors, 1973 Mh.L.J. 54 C.R.A. No. 413/71 decided on 20th November, 1972 took a contrary view and held that the proper course would be to return the plaint along with an application for amendment to the plaintiff for presentation to the Proper Court.

2. A Judge, Small Causes Court, Nagpur permitted an amendment of the plaint which had the effect of Converting a simple suit on the basis of a relationship of landlord and a tenant into a suit based on title, which cannot be tried in Small Cause Jurisdiction. Having obtained permission from the Rent Controller a notice of termination of tenancy was given by the plaintiff. On- that basis a small cause suit for ejectment was filed. During the pendency of that suit, the appeal against the order of the Rent Controller was allowed by the Collector. A review petition was filed raising a contention that the tenancy was void ab initio. Review was allowed holding that the proceedings before the Rent Controller under the circumstances were not maintainable and that the orders passed by the Controller as well as the Collector were nullity. The plaintiff by amendment wanted to base the suit on title contending that the order passed in review had become conclusive and, therefore, operated as res judicata. The Judge, Small Causes Court allowed the application and aggrieved thereby this revisional application come to be filed in High Court. It is during the course of hearing of this Civil Revision that the conflict was noticed and hence this reference was made.

3. It is apparent that Jaikrishna (supra) was not brought to the notice of the learned Judge who decided Nareshchandra (supra). Moreover it appears that there is conflict of views on this point in other High Court also. Having regard to the letter and spirit of Order 6, Rule 17 Code of Civil Procedure and the interest of substantial Justice, it seems to us that the Jaikrishna represents the correct legal position viz. that Court has ample jurisdiction to pass suitable orders on the application; and in case the amendment is allowed and carried out, the proper course to be followed is to return the amended plaint to the plaintiff for presentation to the proper Court under Order 7, Rule 10 C.P.C. Here are our reasons :

4. Only other courses open for being adopted in such matter is either to return the plaint along with the amended application to be presented to the proper Court or to reject the application outright. Former alternative has the potentiality of creating unnecessary complications and shutting a litigant from one Court to other. What happens when the amendment is not allowed by the Court to whom matter is presented The later alternative has the potentiality of leading to grave injustice. The amendment application may be meritorious but has to be rejected only because it, results in ousting the jurisdiction of the Court.

5. This leads us to examination of the possible objections to the grant of such application. Return of plaint for presentation to proper Court is governed by Order 7, Rule 10 C.P.C. Till that stage arrives, Court having jurisdiction over the suit as originally presented is empowered to deal with it as per Orders 4, 5 and 6 C.P.C. respectively relating to institution, issue and service of summons and pleadings. We fail to see as to how exception could be made only with relation to a particular amendment by virtue of the only consideration that if allowed it may result in the ouster of jurisdiction of the Court allowing it. The full plaint (as amended) alone can indicate the jurisdiction. Unless the stage of amendment becoming effective is reached, it would be plainly premature to exercise powers under Order 7, Rule 10 C.P.C. It is plain that initial jurisdiction inheres until something supervenes which ousts it. Amendment may relate back to the presentation of claim but that aspect cannot have any impact on the question. If this principle is accepted as relevant in the matter, it is difficult to comprehend as to how the same principle will not apply to courts which had no initial jurisdiction. We are fortified in the conclusion that we have arrived by at least three decisions of different High Courts to which our attention was drawn. Goverdhan Bang v. Union of India, A.I.R. 1953 Hyderabad 212; Kundanmal v. Thikana Siryari, and Sreedharan v. P.S. Job, : AIR1969Ker75 .

6. Now the decision taking a contrary view C. Singara Mudaliar v. M. Govindswami Chetty and others, A.I.R. 1928 Mad 400, on which strong reliance is placed in Nareshchandra relates to amendment to a suit which was transferred for trial from the file of the City Civil Court, Madras, in exercise of powers under Clause 13 of the Letters Patent by the High Court to itself in exercise of its Extra-Ordinary Original Civil Jurisdiction. The effect of the proposed amendment would have been to convert the suit into a suit which the City Civil Court would have no jurisdiction to try. High Court refused to grant such amendment considering the powers under Clause 13 of the Letters Patent as decided in the famous case of M/s. Annie Besant v. G. Narayanan, A.I.R. 1947 PC 41 in which it is held that the powers of the High Court in dealing with such suits transferred under Clause 13 of the Letters Patent would be the powers which but for the transfer might have been exercised by the Court from which the transfer was made. Thus, the Madras decision is rendered in entirely different back ground. Moreover, there is no detailed discussion in it on various shades of controversy.

7. Ramana v. Amireddi and others, A.I.R. 1931 Mad 67 has held that if the courts finds that on correct valuation the plaint is not cognisable by it, the proper thing to be done is to return the plaint for presentation to the proper Court under Order 7, Rule 10 C.P.C. for decision as to whether proper Court fee is paid or no and not to decide the question itself. Lalji Ranchhoddas v. Narottam Ranchhoddas, A.I.R. 1953 Nag 273, is based on C. Singare Mudaliar, provisions of Order 7, Rule 10 C.P.C. and theory of relation back. This decision is also relied upon in Nareshchandra. With great respect we are unable to persuade ourselves to concur with this view, for the reasons already indicated.

8. Reference answered accordingly. Conventionally we should have sent back the revision to a Single Bench for decision in the light of the answer to the reference but having regard to the entire back ground we do not consider it expedient to follow that cumbersome course, specially when the result can be no other than dismissing the revision. The revision is accordingly dismissed with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //