G.L. Oza, J.
1. This revision petition has been filed by the petitioner-plaintiff against an order passed by the Additional District Judge, Indore dated 7-4-1976.
2. It appears that the plaintiff filed the present suit for partition and separate possession claiming one-fourth share in the property. According to the plaintiff in para. 13 of the plaint she valued the claim at Rs. 18,500/-.
3. In the written statement plea was raised that the valuation of the property is shown less but it was also contended that the plaintiff will not be entitled to one fourth share.
4. Issues were framed on the question of valuation and jurisdiction: but the plaintiff-petitioner submitted an application for amendment of the plaint and by this amendment in para. 13 the plaintiff wanted to add the valuation of the property as a whole but wanted to amend it by saying that she claimed only one-eighth share. The learned Court below refused to consider the amendment application before the decision on the preliminary question about jurisdiction and valuation of the property. Against this the present revision petition has been filed.
5. Learned counsel for the petitioner contended that on the averments made in the plaint the court below had jurisdiction to try the suit and even on the averments made in the amendment application the court below will have jurisdiction to try the suit. Therefore there was no reason for the learned court below to postpone the consideration of the amendment application till decision on the question of valuation and jurisdiction. In fact, the question of jurisdiction which the learned court below was enquiring as preliminary issue depends upon the evidence led by the parties about valuation of the property.
6. Learned counsel for the non-applicant contended that the evidence is practically complete and the court below was right in postponing the decision on the amendment application. Learned counsel placed reliance on the decision reported Lalji Ranchooddas v. Narottam. (AIR 1953 Naa 273).
7. It cannot be disputed that on the averments made in the plaint para. 13, the plaint as filed was within the jurisdiction of the court below. It also could not be disputed that on the averments made in the plaint as amended if the amendment application was to be allowed still, the court below will have jurisdiction to try the present suit. In AIR 1953 Nag 273 (supra) their Lordships observed (at p, 273):--
'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 some-thing 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 Singara Mudaliar v. Gavindswami, 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 what is the procedure to be followed by 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 Kannuswami Pillai v. Jagathambal, AIR 1919 Mad 1071' that a plaint cannot be asked to be returned with a right to represent 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 this own.'
It is therefore apparent that for determining the question of jurisdiction it is averments in the plaint as it stands that have to be considered. Apparently therefore it is not a case where by amendment either the plaint will be changed into one which will not be within the jurisdiction of the learned court below or that originally the plaint as presented is not within the jurisdiction of the learned court below but by amendment it is being brought within its jurisdiction. It is to these two categories, it appears the decision in AIR 1953 Nag 273 applies according to which the court below should return the plaint together with the application for amendment for presentation to the competent court which will have jurisdiction. Admittedly, the plaint as presented in the court below in the present case was within the jurisdiction of the learned court below and even if the application for amendment is allowed on the averments made in the amended plaint it could not be contended that it is not within the jurisdiction of the court below. Consequently this decision is not of assistance in the present case.
8. Apparently, the court below committed a material irregularity in exercise of jurisdiction in refusing to consider the amendment application before determination of the preliminary issues. In fact, the determination of the questions raised in the preliminary issues would be material even after the amendment is allowed or rejected. In such a situation the court below aught to have considered the amendment application first and thereafter proceeded with the determination of the preliminary Questions.
9. In this view of the matter the revision petition is allowed. The court below is directed to consider and dispose of the amendment application before deciding the preliminary Issues. The petitioner shall be entitled to costs of this revision petition, Counsel fee as per schedule if certified.