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T.K. Sreedharan Vs. P.S. Job - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 938 of 1967
Judge
Reported inAIR1969Ker75
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 7, Rule 10 and 10(1) - Order 23, Rule 1
AppellantT.K. Sreedharan
RespondentP.S. Job
Appellant Advocate P.H. Sankaranarayana Iyer and; A.K. Srikrishnan, Advs.
Respondent Advocate Joseph Augustine,; M.C. Mathew and; A.K. Avirah, Adv
DispositionRevision allowed
Cases ReferredGovardhan Bang v. Govt. of
Excerpt:
.....on ground that it would alter nature of suit - prayer to application specifically stated claim - plaint based on pattuvaravu transactions between parties and it would continue to be so even if amendment allowed - findings of trial court unsustainable. - - an application for amendment of pleading must state precisely the specific words, clauses or sentences to be added if the prayer is for addition and the precise place in the original pleading where those are to be inserted; 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. the civil courts would have been, therefore, perfectly justified in exercising their powers of..........outside it as a result of the amendment, the court should, if the application for amendment is allowed, return the plaint for presentation to the proper court. the decision in air 1928 mad 400 was followed by another single judge of the madras high court in nagutha mohamed nainar v. vedavalli animal, 1959-1 mad lj 307. the decision in air 1928 mad 400 has also been followed in e. r. r. m. h. s. committee v. p. atchayya, air 1957 andh pra 10. 5. in lalji v. narottam, air 1953 nag 273, the legal position was stated thus:-- '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,.....
Judgment:
ORDER

T.S. Krishnamoorthy Iyer, J.

1. The plaintiff is the revision petitioner and the revision petition is directed against the order of the Court below refusing his application for amending the plaint. The suit is instituted by the plaintiff for recovery of Rs. 3893.00 being the balance and interest thereon due from the defendant on account of pattuvaravu transactions. In the application for amending the plaint the plaintiff stated that the balance due from the defendant is Rs. 4721.55 and the sum of Rs. 3065.54 mentioned in the plaint as the balance due is a mistake and that he should be allowed to amend the plaint soas to claim the sum of Rs. 4721.55 and interest thereon at the rate of 12% per annum from 19-1-1966.

2. The application for amendment was dismissed by the Court below as it took the view that it does not satisfy the requirements of law the amendment if allowed will change the character of the suit and the Court has no jurisdiction to deal with the application, as the result of allowing the amendment will be to deprive the Court of its jurisdiction to try the suit.

3. The first ground is based upon the decision in Sankaran Kesavan v. Sankaran Bharathan, 1954 Ker LT 513 where it was observed that:

'An application for amendment of pleading must state precisely the specific words, clauses or sentences to be added if the prayer is for addition and the precise place in the original pleading where those are to be inserted; if the amendment sought is for deletion of any part of the original pleading the details thereof must also be given with precision.'

The complaint is that the application for amendment does not satisfy the above principle. On a perusal of the application for amendment it is seen that the prayer is to correct the amount claimed in the plaint and also to claim interest thereon. This is specifically stated in the petition. This is quite sufficient and the view taken by the Munsiff cannot be accepted.

4. The finding of the Munsiff that the amendment if allowed will alter the character of the suit cannot be supported. The plaint is based on pattuvaravu transactions between the parties and it will continue to be so even if the amendment is allowed. The second ground mentioned by the Munsiff has to be overruled. The last ground mentioned by the Court below presents some difficulty. In the case before me the original claim and the additional claim sought to be introduced by the amendment are within the jurisdiction of the trial Court. But the two claims taken together will fall outside its jurisdiction. The jurisdiction of the Court to try a suit is determined by the plaint. Normally therefore the Court competent to entertain the suit is entitled to deal with the application for amendment of the plaint. But the question to be considered is whether when the Court as a result of allowing the application for amendment is deprived of its jurisdiction to deal with the amendment plaint has power to deal with the application for such an amendment. In Singara Mudaliar v. Govindaswami Chetty, AIR 1928 Mad 400, a learned single Judge of the Madras High Court observed:

'I conceive that no Court will permit a plaint to be so amended as to oust its own jurisdiction to try the suit'. The above principle was invoked by the learned Counsel for the respondent. In Bhavani v. Mangamma, AIR 1949 Mad 208, the view was taken by the Madras High Court that where the claim was originally with the jurisdiction of the Court but falls outside it as a result of the amendment, the Court should, if the application for amendment is allowed, return the plaint for presentation to the proper Court. The decision in AIR 1928 Mad 400 was followed by another single Judge of the Madras High Court in Nagutha Mohamed Nainar v. Vedavalli Animal, 1959-1 Mad LJ 307. The decision in AIR 1928 Mad 400 has also been followed in E. R. R. M. H. S. Committee v. P. Atchayya, AIR 1957 Andh Pra 10. 5. In Lalji v. Narottam, AIR 1953 Nag 273, the legal position was stated thus:-- '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.'

In Kundan Mal v. Thikana Siryari, AIR 1959 Raj 146, a Single Judge of the Rajasthan High Court disagreed with the decision in AIR 1928 Mad 400 and observed:

'It is true that if the suit as framed were beyond the jurisdiction of the lower Courts, they would have had no jurisdiction to make any amendment. However, from the plaint as it stands, it cannot be said that the lower Court had no jurisdiction in the suit when it was filed. The Civil Courts would have been, therefore, perfectly justified in exercising their powers of amendment, even though the consequence of the amendment would be that the suit might become beyond the jurisdiction of the Civil Courts. If as a result of amendment, the suit becomes one not cognisable by Civil Court they would have to return the plaint for presentation to proper Court.'

The same principle was stated in Govardhan Bang v. Govt. of the Union of India, AIR 1953 Hyd 212, thus:--

'While considering whether an amendment should be allowed or not, the Court ought not to go on the merits of the case. If, after allowing the amendment, the Court comes to the conclusion that the Court has no jurisdiction, the Court could return the plaint to the plaintiff to be presented in the proper Court.'

I accept the principle of law stated inAIR 1953 Hyd 212 and AIR 1959 Raj 146.It is not possible to accept the dictum inAIR 1953 Nag 273. Order 7 Rule 10 (1)C. P. C. enables the return of a plaintonly for presentation to the proper Courtin which the suit should have been instituted. It will be possible to invoke theprovision of Order 7 Rule 10 (1) C. P. C.only after the amendment of the plaint,the effect of which alone will be to deprive the jurisdiction of the Court to trythe suit. No question of applicability ofOrder 7 Rule 10 (1) C. P. C. can arisebefore that stage. It is also not possibleto apply the provisions of Order XXIIIC. P. C. for this purpose. When a Courthas jurisdiction to entertain the suit itis only that Court that is competent todeal with the application for amendingthe plaint in that suit. If as a result ofan order allowing the amendment thepecuniary jurisdiction is ousted it mustreturn the plaint for presentation to theproper Court. The fact that the amendment relates back to the presentation ofthe plaint cannot affect the question aall. The amended plaint will be considered to have been wrongly presented inthe Court not having jurisdiction to entertain the same in which case that Courtwill have to pass an order under Order 7Rule 10 (1) C. P. C. When the originalplaint and the application for amendmentare returned for the reason that theeffect of the amendment if allowed willbe to deprive the jurisdiction of theCourt to entertain the suit, the Courtwill not be acting under the provision ofOrder 7 Rule 10 (1) C. P. C. Further ifthe Court in which they are presentedrefuses the prayer for amendment thenit is open to that Court again to directthe return of the plaint for presentationin the first Court. I do not think sucha situation is contemplated. The questionof ouster of jurisdiction will come in onlyafter an order allowing the amendmentis passed and not before that. Undersuch circumstances the Court below hasgot jurisdiction to deal with the application. In these circumstances, I set asidethe order of the Court below and allowthe revision petition. But I make noorder as to costs.


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