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Patel Construction and Co. and anr. Vs. Shah Raichand Amulakh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 773 of 1965
Judge
Reported inAIR1973Guj283; (1973)0GLR487
ActsCode of Civil Procedure (CPC),1908 - Order 6, Rule 17
AppellantPatel Construction and Co. and anr.
RespondentShah Raichand Amulakh and anr.
Advocates: D.D. Vyas, Adv.
Cases ReferredGoverdhan Bang and Jt. Family of Kaniram Laxminarayan v. Govt. of
Excerpt:
.....ousts its jurisdiction of court in which suit was initially instituted - secondly court can return plaint along with amendment to be filed in proper court - thirdly court can grant amendment if it finds that as result of amendment jurisdiction is ousted it will return plaint back to plaintiff for presenting it to proper court. - - the court continues to enjoy the jurisdiction which it had ever since the filing of the suit. then it is obvious that the plaintiff's application for amendment would be totally lost in spite of the fact that it otherwise possesses good deal of merits. it is also well settled that all amendments relate back to the presentation of the plaint. air 1957 andh pra 10. the madras case of air 1928 mad 400 (supra) is referred to in the above referred andhra..........thereto. rule 10 of this order provides for the return of plaint and says that at any stage of the suit the plaint shall be returned to be presented to the court in which the suit should have been instituted. these provisions thus make it clear that from the time the plaint is presented upto the time it is returned under rule 10 of order 7 of c. p. c., the court concerned is empowered to deal with the plaint in accordance with the specific provisions contained in orders 4, 5 and 6 of the code. in other words. such a court has got jurisdiction to pass all the necessary orders in the suit till it takes the decision that the plaint should be returned for presentation to a proper court as provided in rule 10 of the order 7 of the code. it is in view of the above referred provisions of the.....
Judgment:

1. The question which is involved in this revision application is what procedure a civil court should adopt with regard to an amendment of plaint which results in ousting the jurisdiction of that court though the plaint as initially presented is admittedly found to be written the pecuniary jurisdiction of that court.

2. The petitioners of this petition are the original defendants against whom the original plaintiff. one Shah Raichand Amulakh. who has since died, has filed a suit for the recover of the amount of Rs. 1,000/- being the amount of rent in arrears for godowns and damages for use and occupation of a piece of land known as `Farja' adjoining has taken on lease from the plaintiff. The suit has been filed as a Small Cause suit in the court of Civil Judge (S. D.) at Surendranagar where it is registered as Small Cause Suit No. 155/64.

3. Reference to para 14 of the plaint. which is initially filed, shows that damages for use and occupation for the land admeasuring 35700 sq. ft. have been claimed by the plaintiff. In this paragraph the plaintiff has alleged that the damages for use and occupation for 9 months i.e. upto the month of 2nd Jyeshtha of S. Y. 2017 would be Rupees 7,290/- at the rate of Rs. 810/- per month and for keeping the trucks for the said period the said damages would be Rs. 3,600/- at the rate of Rs. 600/- per month. but since the claim for first 8 months has been time barred. the claim for damages is limited only for one month at the rate of Rs. 600/-. To this amount the plaintiff has added the arrears of rent for the godowns amounting to Rs. 250/-, thus making the total claim of Rs. 850/- for rent of the godowns and for use and occupation of `farja'. To this amount the plaintiff has further added the amount of Rs. 139/- by way of interest and Rs. 11/- as notice charges. Thus, the plaintiff has made the total claim of Rs. 1,000/-.

4. The suit is filed by the plaintiff on 3-7-64. Thereafter on 21-7-65 the plaintiff made an amendment application out of which the present revision application arises. This amendment application is found at Ex. 26 and reference to it shows that it seeks to explain how the claim for 8 months referred to above is not barred by period of limitation. It is further alleged that plaintiff's advocate Shri S. A. Shah, acting under a bona fide mistake of law, had advised the plaintiff that the claim for 8 months was time barred but on scrutiny of the legal position it is found that the same is not time barred. The plaintiff has, therefore, prayed by this application to allow him to claim further amount of Rs. 5,400/- as damages for use and occupation of the land known as `farja'.

5. This application was resisted by the present petitioner. who is the defendant. It was inter alia. contended on behalf of the defendant before the trail Court that if the proposed amendment was granted the suit would cease to be falling within the pecuniary jurisdiction of the Small Cause Court and, therefore, the court should not grant an amendment which would oust its own jurisdiction in the matter.

6. The learned trial Judge held that the amendment in question did not change the nature of the suit and that even if the amendment in question would result in ousting the jurisdiction of the Small Cause Court, the same should be granted. It is against this order that the original defendant has preferred this revision application.

7. So far as the nature of the amendment is concerned, it cannot be gainsaid that it does not change the character of the suit. Shri Vyas. who appeared on behalf of the petitioners, however contended that the amendment should not be granted in view of the fact that the claim, which is sought to be put forward by virtue of this amendment. is barred by period of limitation. On this point I find that the question whether the claim, which the plaintiff wants to put forward by bringing the proposed amendment, is barred by limitation or not, is a debatable one and can be decided by the lower court after hearing both the parties. Therefore. if the amendment in question is allowed the petitioner should be permitted to raise the question of limitation in the further written statement. which he would be filing in reply to the amendment in question. This, in my opinion, will protect the interest of the defendant. Therefore, apart from the question whether the said amendment should be granted in view of the fact that it ousts the jurisdiction of the Small Cause Court. before which the matter is pending. I see no objection in granting the same subject of course. to proper order as regards the costs.

8. The main question which arises to be determined is whether a Civil Court. acting under Order 6. Rule 17 of the Civil Procedure Code, can grant an amendment of the plaint. which would result in ousting its own jurisdiction in the matter. I find that on this question there is difference of opinion between some High Courts of our country. Before referring to the different decisions on the point. it would be proper to appreciate the point in controversy by reference to the scheme of Order 6. Rule 17 and other relevant provisions of C. P. C. Order 6 of the C. P. C. is with regard to pleadings generally and makes various provisions as to what should be the form pleadings what particulars are required in a pleading of a particular type. how the pleadings should be signed and verified. when the pleadings can be struck out and how the pleadings should be amended. Rule 17 is with regard to the amendment of pleadings and provides that the court may at any stage of the pleadings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the for the purpose of determining the real questions in controversy between the parties. Section 15 of the C. P. C. says that every suit shall be instituted in the court of the lowest grade competent to try it. Order 4, Rule 1 of the Code further provides that every suit shall be instituted by presenting a plaint to the court or such officer as it appoints in this behalf. Sub-rule (2) of that Order provides for registration of suits and says that the court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Then follows Order 5 which provides for the issue and service of Summons after the suit has been duly instituted. Order 6, as already noted above. provides for the pleadings generally while Order 7 provides for the particulars which are to be disclosed in a plaint and other mattes relating thereto. Rule 10 of this Order provides for the return of plaint and says that at any stage of the suit the plaint shall be returned to be presented to the court in which the suit should have been instituted. These provisions thus make it clear that from the time the plaint is presented upto the time it is returned under Rule 10 of Order 7 of C. P. C., the court concerned is empowered to deal with the plaint in accordance with the specific provisions contained in Orders 4, 5 and 6 of the Code. In other words. such a court has got jurisdiction to pass all the necessary orders in the suit till it takes the decision that the plaint should be returned for presentation to a proper court as provided in Rule 10 of the Order 7 of the Code. It is in view of the above referred provisions of the Civil Procedure Code. that the contentions raised on behalf of the petitioner in this revision application should be appreciated.

9. Shri Vyas. who appeared on behalf of the petitioner. contended that while considering an application for amendment of plaint under Order 6 Rule 17. C. P. C. the court should not grant that amendment which would result in ousting its own jurisdiction in the matter. But on the plain reading of Order 6, Rule 17 the proposition canvassed by Shri Vyas does not get any justification. It should be remembered here that in this suit it is not in dispute that the court of Small Causes at Surendranagar has got jurisdiction to try the suit as initially instituted. If that is so. it cannot be gainsaid that that court has got full jurisdiction to deal with all the matters arising in the suit and to pass all necessary orders, which are contemplated by the relevant rules of Orders 4 5 and 6 of the Code. That being the position. if the amendment of pleadings is sought by any of Rule 17, the court would eventually have jurisdiction to decide the said amendment application. The question is whether this jurisdiction of the court is taken away by the mere fact that the amendment is likely to result in the ouster of the Court's jurisdiction. In my opinion, the mere filing of amendment application. which is likely to result in ouster of court's pecuniary jurisdiction cannot result in the want of jurisdiction which the court definitely has under the relevant provisions of the Code. It is the decision of the court granting a particular amendment which eventually becomes effective and. therefore so long as this amendment is not granted. it cannot be said that the pecuniary jurisdiction of the court has suddenly ceased to exist merely because of the fact that one of the parties has sought to amend the pleadings in such a manner that ultimately the pecuniary valuation of the suit would be so altered that the court in which the suit is instituted would have not jurisdiction to try that matter. In other words so long as the amendment is not granted by the court and has not become effective. it cannot be said that the pecuniary valuation of the suit has changed and if that be so, so long as that stage is not reached. it is difficult to hold that the jurisdiction of the court has ceased by mere filing of application for such an amendment The principle on which this reasoning is based is that once the court is found to have proper jurisdiction in the matter, that jurisdiction inheres in the court until something supervenes which ousts it. Can it be said that a mere prayer of a party to amend the pleadings is a supervening factor which standing by itself would be able to oust the jurisdiction of the court. No doubt. if the court once grants an amendment applicable and the said amendment is carried out resulting in a change in the pecuniary valuation of the suit then from that time onwards the court may take a view that looking to the amended plaint. it has got no pecuniary jurisdiction to try the suit. This would. therefore. be a proper stage when the court can justifiably return the plaint back to the plaintiff for presenting it to a proper court. But before that stage arrives. the court continues to enjoy the jurisdiction which it had ever since the filing of the suit.

10. Apart from the different decisions of different High Courts on this question. let us consider the possible procedures. which according to law. would be available to a court in cases wherein pleadings are sought to be amended in such a manner that it would oust the jurisdiction of the court in which the suit is initially instituted. So far as I can visualise. there would be only three possible procedures. which a court can adopt in such an event. These are (1) the court would reject the application for such an amendment on the ground that the amendment would oust its jurisdiction in the matter. or (2) likely to oust the jurisdiction of the court in the matter. the court would return the plaint along with the amendment application. to be filed in the proper court and (3) the court would grant the amendment and if it finds that as a result of the amendment plaint back to the plaintiff for presenting it to the proper court.

11. These are the three alternatives which are available to a court in case of such an amendment application. The question is which alternative is more in consonance with the procedure contemplated by the Code and is also more conducive to the ends of justice.

12. If the first alternative is adopted. then it is obvious that the plaintiff's application for amendment would be totally lost in spite of the fact that it otherwise possesses good deal of merits. and but for the fact that it results in ousting the jurisdiction of the court, it deserves to be allowed under the provisions of the Code. It is thus apparent that the first alternative is neither in consonance with the spirit of Order 6. Rule 17 nor is it conducive to the ends of justice. If the second alternative is adopted various complications are likely to arise. Suppose in a case of court returns the plaint along with the amendment application for being presented to the court which would have jurisdiction. if the amendment is granted. and suppose of the sake of argument that the plaintiff represents this plaint and the amendment application to said court. and the court rejects the amendment application for the same reason. In that case. the pecuniary valuation of the suit would remain as it was when the suit was initially instituted under the provisions of the Code. Then the question which would arise is would the second court again return the plaint to the plaintiff to present it to the first court? If such a procedure is adopted it would obviously result in shuttling the case from one court to another without any fault of the litigant concerned. In my opinion. even this second alternative is not acceptable.

13. This leaves us with the third alternative. Now the procedure contemplated by this alternative is found to be quite in consonance with the specific provisions of Order 4, 5, 6 and 7 of the Code. It cannot be gainsaid that when the suit was instituted, the court had jurisdiction to try the same and this jurisdiction continues till the date of the granting of an amendment application and. if the is so. there is no reason why the parties should not abide by the decision of that court as regards the amendment application. which is considered by the court before returning the plaint back to the plaintiff under Rule 10 Order 7 of the Code.

14. With regard to this third alternative. Shri Vyas contended that an amendment of the pleading relates back to the date of the institution of the suit and. therefore in cases where the amendments resulting in ouster of the jurisdiction of the concerned court are granted. these amendments have. their effect from the date of the institution of the suit. If this is so. according to Shri Vyas. it is obvious that the court in which the suit is initially instituted. would have no jurisdiction to pass any orders in the matter including the order as regards the amendment. This contention has found favour with a Division Bench of Nagpur High Court in the case of Lalji Ranchhoddas v. Narottam Ranchhoddas. AIR 1953 Nag 273. Since this is a Division Bench judgment of another High Court of our country. I propose to consider in detail the view taken by the learned Judges on this question. The facts of that case show that the plaint of that suit as initially presented. was within the pecuniary jurisdiction of the court of Additional Sub-Judge. First Class. Yeotmal. By a series of amendments the claim involved exceeded the pecuniary jurisdiction of that court. In view of these facts. a question arose before Hidayatullah J. (as he then was), sitting as a Single Judge. whether an amendments in such circumstances can at all be allowed by a court so as to oust its own jurisdiction. As the matter was of some general importance. the same was referred to a Division Bench. The Division Bench. ultimately took the view that 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 it is pecuniary jurisdiction. The said Bench further observed that 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 learned Judges further observed about the procedure which should be followed in such cases and said that the procedure to be followed would be to return the plaint together with the application for amendment not taken separately but together. Shri Vyas relied upon these observations and contended that I should not also adopt a similar procedure. I have already considered the difficulties encountered in such a procedure and. therefore. with great respect. which is due to the learned Judges of the Bench, which decided that Nagpur case, I amendment of the opinion that the court need not pass any order which is likely to result in the shuttling of the case from one court to another court.

15. As for the argument that the amendment relates back to the date of the institution of the plaint it would suffice to say that this doctrine of amendment relating back to the presentation of the plaint comes into operation only on the day on which the amendment is carried out and not before that. Therefore. it would not be proper to say that even before the amendment is granted by the court and the same is carried out. this doctrine of relation back would come into operation. In my opinion. therefore. after the court grants the amendment in question and the same is carried out. if the court finds that it ceases to have pecuniary jurisdiction in the matter, the proper procedure would be at that stage of return the amended plaint back to the plaintiff for presentation to the proper court.

16. At this stage it would also be proper to note one more argument which has weighed with the learned Judges of the above referred Bench of the Nagpur High Court. The learned Judges have considered the view taken by Madras High Court in S. J. Govindaraja Naicker v. K. Kassim Sahib. AIR 1928 Mad 384 and Allahabad High Court in Tirkha v. Ghasi Ram. : AIR1935All842 . that a court has no right to direct the amendment of a plaint when it has no jurisdiction over the subject-matter of the plaint itself. and therefore. where a suit is filed in a court for a sum of beyond its jurisdiction. the court has no right to allow an amendment of the plaint reducing the amount claimed so as to bring it within the pecuniary jurisdiction so the court. These decisions proceed on the reasoning that a court not possessing jurisdiction initially cannot, by an amendment , create jurisdiction in itself. Dealing with this position. the learned Judges of the Nagpur High Court have observed as under :

'In the present case. though the original claim was within the jurisdiction of the court, the court is asked to permit an amendment which. if allowed, would take it beyond its jurisdiction. On principle, there seems to be no difference between a court not initially having jurisdiction creating jurisdiction itself by amendment or a court having jurisdiction in itself amendment or a court having jurisdiction originally allowing an amendment which ousts it. In our view. in both the cases. the court is dealing with a matter which is in excess of its jurisdiction. in the first class of cases by entertaining the plaint and in the second by entertaining an amendment of the plaint.'

Shri Vyas relied upon these observations and contended that the lower court has in this case acted in excess of its jurisdiction in granting the amendment which ousts its jurisdiction. With due respect to the learned Judges of the Nagpur High Court. I am of the opinion that if these observations are carried to their logical conclusions. then they are found to be applying one standard to the amendment application which result in ousting the pecuniary jurisdiction of the court concerned. and another standard to those applications which seek to bring the suit within the pecuniary jurisdiction of the court. If once we proceed on the basis that an amendment of the plaint made subsequent to its institution relates back to the date of its institution, then it is difficult to comprehend how the cases where the court has initially no pecuniary jurisdiction to try a suit can escape from that principle. In cases where the plaint as initially filed has valuation which is beyond the pecuniary jurisdiction of the court. its amendment seeking to bring it within the pecuniary jurisdiction of the court would also relate back to the date of the institution of the suit and therefore. it cannot be said that the court has no jurisdiction to grant that amendment. In other words. if the amendment of a plaint back to the date of its institution. it should relate back in all types of suits including the suit wherein the court would initially have no pecuniary jurisdiction to try the suit and by virtue of an amendment it gets the jurisdiction to try the same. It is for these reasons that I find myself unable to follow the decision given by the Nagpur High Court in Lalji Ranchhodas's case. AIR 1953 Nag 273 (supra).

17. I would here state that a view similar to the one taken by the Nagpur High Court is also taken by a Single Judge of the High Court of Madras in C. Singara Mudaliar v. M. Govindaswami Chetty, AIR 1928 Mad 400 and Andhra Pradesh High Court in Edupuganti Raghavendra Rao Memorial High School Committee, Gudlavelleru v. Polturi Atchayya. AIR 1957 Andh Pra 10. The Madras case of AIR 1928 Mad 400 (supra) is referred to in the above referred Andhra Pradesh decision as well as Nagpur decision. I have perused the reported judgment of this Madras case. I find that unlike the Nagpur case it does not contain any discussion on the point because the learned Judge has merely observed that 'no court will permit a plaint to be so amended so as to oust its own jurisdiction to try the suit.' The Andhra Pradesh decision also does not discuss the point but merely confirms the view taken by the Madras High Court in Singara's case (supra).

18. So far as the Madras High Court is concerned. I find that the view taken in Singara's case (supra) is again reiterated in K. Nagutha Mohammed Naicker v. Vedavalli Ammal. (1959) 1 Mad LJ 307. But in between these two decisions. there is another decision of the same High Court which has taken a contrary view. This decision is found in Nandula Bhavani Sankaram v. Saladi Mangamma AIR 1949 Mad 208. wherein the learned Judge has observed that according to him the lower court's order would have been in order 'in returning the plaint for presentation in the amended form to the court having jurisdiction'. This decision is given by Mach J. of Madras High Court but the same is not referred to in the subsequent decision given in the year 1959.

19. I further find that the view which I amendment taking gets supports from two decisions given by the High Courts of Rajasthan and Hyderabad. The Rajasthan case is Kundan Mal v. Thikana Sirvari, AIR 1959 Raj 146. The point involved in this case was quite similar to the one arising before me. The learned Judge. who has decided that case has held that where 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 lower courts would be 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 courts. Following are the relevant observations made in support of the above view :

'It very frequently happens that the suits are under-valued in the beginning and the objection is raised and the valuation is increased with the result that in some cases the case goes out of the jurisdiction of the court in which it was filed and then the plaint is returned for presentation to the proper court. It cannot be said that because at a later stage it comes out that the suit is not within the jurisdiction of the court in which it was filed as a result of amendment. the court in which it was originally filed and no jurisdiction from the very beginning.'

The High Court of Hyderabad has taken the similar view in Goverdhan Bang and Jt. Family of Kaniram Laxminarayan v. Govt. of the Union of India, AIR 1953 Hyd 212.

20. In view of this, I am of the opinion that the learned Judge of the trail Court had jurisdiction to allow the amendment. Therefore. his order allowing the amendment is not required to be interfered with.

21. The learned Judge has however not passed any order as regards the return of the amended plaint which would be admittedly beyond the jurisdiction of the Small Causes Court at Surendranagar. Such an order should, therefore. be made.

22. It is accordingly ordered that this revision application should fail. The plaintiff shall carry out the amendment as ordered by the lower court. The defendant will be at liberty to file a further written statement to the amended plaint and while doing so. it would be open to him to plead limitation; if he is so advised. If after the plaint is amended. the lower court finds that it has no pecuniary jurisdiction to proceed further with the suit it shall return the amended plaint back to the plaintiff for presentation to proper court. This revision application is accordingly disposed of without any order as to costs.

23. Revision dismissed.


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