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Amritalal Mullick Vs. Sesh Prokash Mullick and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1285 of 1960
Judge
Reported inAIR1962Cal8
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantAmritalal Mullick
RespondentSesh Prokash Mullick and ors.
Appellant AdvocateA.C. Bhabra, Adv.
Respondent AdvocateK.C. Mukherjee, Adv.
DispositionApplication allowed
Cases ReferredIn Rampurtal Samruthroy v. Premsukh Chandamah
Excerpt:
- .....of this court, the suit has been instituted after obtaining leave under clause 12 of the letters patent. as stated before by the amendment some parties are sought to be added. the parties sought to be added are the remaining grandsons of gour mohan who have been given the corpus after the death of their respective fathers in defined shares. the defendants sought to be added belong to two categories viz. those to whom the residuary estate has vested and who are entitled to possession after the death of their respective fathers. they are defendants nos. 13, 14, 15, 16, 18 and 19. the other two sought to be added are defendants nos. 12 and 17. it is alleged in paragraph 12 that no relief is claimed against them, but that the suit should be decided in their presence. 2. mr. bhabra.....
Judgment:
ORDER

P.C. Mallick, J.

1. This is an application for addition of parties and for amendment of the plaint. The suit is instituted by two sons of Dilal Chand, a predeceased son of Gour Mohan for construction of the Will of Gour Mohan, for a declaration of their right to immediate possession, for partition and for other reliefs. The parties impleaded as defendants are the two executors of the Will of Gour Mohan, the surviving sons of Gour Mohan and their respective wives, a widow of the deceased son and another son, Bholanath who is no longer in the family having been given in adoption in the Law family. The defendants other than the executor defendants are life annuitants. Under the Will the estate, is left to the grandsons after the death of their respective fathers. Inasmuch as part of the estate of Gour Mohan which is the subject matter of this suit, is situate outside the jurisdiction of this court, the suit has been instituted after obtaining leave under Clause 12 of the Letters Patent. As stated before by the amendment some parties are sought to be added. The parties sought to be added are the remaining grandsons of Gour Mohan who have been given the corpus after the death of their respective fathers in defined shares. The defendants sought to be added belong to two categories viz. those to whom the residuary estate has vested and who are entitled to possession after the death of their respective fathers. They are defendants Nos. 13, 14, 15, 16, 18 and 19. The other two sought to be added are defendants Nos. 12 and 17. It is alleged in paragraph 12 that no relief is claimed against them, but that the suit should be decided in their presence.

2. Mr. Bhabra learned counsel appearing for the defendant Bholanath Law opposed the ap~ plication. As stated before Bholanath is the son of Gour Mohan who has been given in adoption to the Law family. Under the Will Bholanath is entitled to an annuity. No other party to the proceeding is opposing the application.

3. Ground taken by Mr. Bhabra in opposition to this application for amendment is that having regard to the wording of Clause 12 of the Letters Patent, a suit instituted after obtaining leave under Clause 12 of the Letters Patent cannot be amended at all. It is not permissible in law to obtain a fresh leave under Clause 12 in such cases for amendment of the plaint. Clause 12 of the Letters Patent empowers the High Court 'to receive, try and determine suit with the leave oft the Court first obtained' in the case of 'suit for land' when the land is situate partly within and partly outside the jurisdiction of this Court and in case of other suits when the cause of action arose partly within and partly outside the jurisdiction of the Court, A suit is 'received' by the Court when the plaint is presented and hence the requirement of Clause 12 can only be satisfied if leave to institute the suit is given before the plaintis presented and received by the Court. Once plaint has been presented and has been received; and registered and numbered as required by the Code of Civil Procedure, this Court is not empowered under Clause 12 to give leave a second time. When a suit is sought to be amended either by adding new parties or by introducing a new cause of action, it becomes a new suit. If the suit is of the class that can only be instituted after obtaining leave under Clause 12 of the Letters Patent, the amendment becomes inadmissible for the simple reason that the suit having already been 'received' and the plaint having already been admitted registered and numbered as a suit it cannot be received again having regard to the clear language of Clause 12 of the Letters Patent. It follows that law does not allow amendment of a plaint filed after obtaining leave under Clause 12 of the Letters Patent. Instant suit being a suit for land in which leave under Clause 12 of the Letters Patent was obtained, the application for amendment of the plaint is not maintainable.

4. The point taken by Mr. Bhabra as indicated above is not covered by any direct decision. In that sense the case can be said to be a case of first impression. It is conceded by Mr. Bhabra that there are decisions of this Court and other Courts in which it is held that the Court had no jurisdiction to entertain an amended suit instituted after obtaining leave under Clause 12 or the Letters Patent if a fresh leave under Clause 12 of the Letters Patent is not obtained for the amendment. These, decisions no doubt suggest that leave under Clause 12 can be given if such a suit is sought to be amended. Reference may be made to various decisions of this Court and the Bombay High Court wherein the above point was decided. See the Bench decision of the Bombay High Court in the case of Devidatt Ramniranjandas v. Shriram, reported in AIR 1932 Bom 291, of Kania J. in the case of Motilal Tribhovandas v. Shankarlal Chhaganlal reported in AIR 1939 Bom 345 and the Bench decision of this Court in the case of Benoy Shankar Dhandania v. Chhotelal Dhandania, reported in 84 Cal LJ 200. There are many other decisions of this Court as also of the Bombay High Court which are cited before me, but which I do not consider necessary to refer. In all these cases the Court proceeded on the footing that without a fresh leave for amendment, the Court had no jurisdiction to entertain the amended plaint. The Court was never called upon to consider in any of the cases cited the question now posed by Mr. Bhabra, namely, whether a fresh leave can, he granted at all in such cases or whether a suit instituted after obtaining leave under Clause 12 of the Letters Patent can be amended at all. Mr. Bhabra is, therefore, right in his submission that this is a case o first impression and is covered by no direct decision.

5. Mr. Bhabra has argued that the language of Clause 12 of the Letters Patent leads inevitably to the contention made by him that no amendment] of a suit is permissible if it is instituted after obtaining leave under Clause 12 of the Letters Patent. He strongly relies on the decision of Gentle, J. in the case of Barasat Basirhat Light Railway Co. Ltd. v. District Board of the 24 Pergunnahs, reported in AIR 1946 Cal 23. In the cited case the claim was made on the basis of several agreements which agreements were pleaded to be void in the written statement filed by the defendant. The plaintiffs thereupon applied for and obtained leave to amend the plaint after obtaining leave under Clause 12 so as to make an alternate claim on the basis of Sections 65, 70 and 72 of the Indian Contract Act. At the trial the question was raised whether the alternate case as made in the amended plaint can be entertained. In other words, whether the Court had jurisdiction to entertain the amended plaint. Certain passage from the judgment of Gentle, J. has been relied on by Mr, Bhabra. At page 33 of the report the learned Judge observes:

'In Rampurtal Samruthroy v. Premsukh Chandamah, ILR 15 Bom 93 it was held that the grant Of leave is a judicial act relating solely to the cause of action set forth in the plaint at the time it was obtained, it affords the very foundation for jurisdiction and is not available to confer jurisdiction in respect of a different cause of action which was not considered at the time; and subsequently the plaint cannot be amended so as to alter the cause of action; the Court cannot try a different cause of action save in another suit.'

Then again a little below at page 34 the learned Judge makes the following observation:--

'The wording and meaning of Clause 12 is clear, namely, that the Court's leave shall previously be obtained before it has jurisdiction to receive a suit for which leave is required. The grant of leave is a condition precedent to the Court having jurisdiction to receive a suit. An amendment to a plaint raising a new cause of action upon which a claim is made is not a fresh suit but is an additional claim made in an existing suit. The Court's leave is previously required in respect of a cause of action before the Court can have jurisdiction to receive, the suit in which it is alleged. Further, in the present case leave to sue was not sought with respect to the causes of action in the amendment either at the time application was, made to amend or when leave was given for the amendment or when the plaint with the amendment was presented to the Court.'

6. The reasons given for holding that in the cited case the Court had no jurisdiction are,

(a) that an amendment of the plaint raising a new cause of action upon which the claim is made is not a fresh suit, but an additional claim made in an existing suit

(b) in the facts of the case leave was held not to have been obtained before amendment was effected.

While dismissing the alternate case made on the ground of jurisdiction, the learned Judge gave liberty to the plaintiff to enforce the new claim in a new suit. The second ground given by the learned Judge cannot support Mr. Bhabra's contention. On the other hand, it suggests that if leave was obtained previously, the amendment would have been good and effective in law. The other ground given by the learned Judge is that by reason of the amendment no new suit came into existence but only an additional claim made in an existing suit. If by reason of the amendment it can be said that a fresh suit came into existence, then on the reasoning given by the learned Judge, leave under Clause 12 of the Letters Patent is not only permissible but imperative in law. It is to be noticed, however, that the learned Judge was considering the case of amendment which seeks to introduce a new cause of action. In the opinion of the learned Judge the amendment introducing a new cause of action upon which a claim is based is not a fresh suit but an additional claim made in an existing suit. The case we are considering is a case of amendment by addition of parties. Such an amendment cannot but be a new suit. So far as the added parties arc concerned, it cannot be considered to be an additional claim in an existing suit. The decision of Gentle, J. is, therefore, distinguishable and is no authority in favour of Mr. Bhabra in the instant case. I must not be taken to have agreed with the learned Judge in his view that when a plaint is amended by inserting a new cause of action, it does not become a new suit but is only an additional claim in an existing suit. In an appropriate case when the point is necessary for consideration, the point may have to be considered. I leave the point at that for the present.

7. In a suit when a new party is sought to be added by way of amendment, the suit in my judgment is a new suit as against the added party. When amendment is allowed and order made in that behalf, a new suit comes into existence. It is not emphatically the old suit. If the new suit cannot be 'received, tried and determined' by this Court under Clause 12 of the Letters Patent except first obtaining leave under Clause 12 of the Letters Patent, why should the leave be not ask-ed for and granted by the Court?' I do not find any reason whatsoever. The language of Clause 12 does not compel the construction contended for by Mr. Bhabra. The language is 'receive, try and determine'. Mr. Bhabra submitted that a suit is initiated' by presentation of a plaint. That is the procedure laid down in Order 1 of the Code of Civil Procedure. It is also true that according to the Code after the acceptance of the plaint it is to be registered and numbered as a suit. This no doubt is so. Ordinarily a suit is initiated by the presentation of the plaint and when the Court accepts it and has it registered and numbered, the plaint is 'received' by the Court. The Code also provides that after the institution of a suit a party can be added and the law is that so far as the 'added parties are concerned, it is a new suit. It is only when the order adding a new party is perfected and plaint amended that the Court can be said to have received a suit so far as the added party is concerned. It follows that in suits in which leave under Clause 12 of the Letters Patent is necessary before the order of amendment is prayed for, leave under Clause 12 becomes necessary if not imperative. It is a fallacy to contend that a suit can be initiated only by presentation of the plaint and the Court 'receives' a suit when it accepts the plaint and not otherise. A suit can also be initiated against a new party by making an application for amendmentand the Court receives the suit as against him when after granting leave the Court adds the party and then amends the plaint by bringing the new party on the record. The presentation of the plaint and registration of the suit is, therefore, not the only way in which the Court 'receives' a suit in law. For reasons' givea above a suit instituted after obtaining leave under Clause 12 of the Letters Patent can be amended in law and there is nothing in the wording of Clause 12 o the Letters Patent to prevent the Court from granting leave under Clause 12 to amend the plaint by adding parties, in the case of a suit instituted after obtaining leave under Clause 12 of the Letters patent. In the instant case defendants Nos. 13, 14, 15, 16, 18 and 19 are sought to be added because them interest is affected and as such they are necessary parties, The two other defendants, namely, defendants Nos. 12 and 17 are sought to be added because the plaintiffs are advised that the questions to be raised should be determined in their presence though no relief is claimed against them. This is a suit for land and part of the land is situate outside the jurisdiction of this Court. According to the authorities noticed before without leave under Clause 12 of the Letters Patent, no application for amendment can be made' and the Court will have no jurisdiction to entertain the suit as against the added parties if no leave is granted.

8. I do not find any reason to dismiss the application for addition of parties on the grounds urged by Mr. Bhabra. These parties in my judgment are necessary and proper parties and without having them' as defendants the suit would be bad for nonjoinder of defendants.

9. There will, therefore, be an order in terras of prayers (a), (b), (c), (d), (e), (f) and (g) of the petition. So far as prayer (h) is concerned, I appoint the respective mothers of the minors as guardians subject to their filing the necessary affidavits. There will be an order in terms of prayer (i), within 7 days of the service of the order on them. Costs in die cause. Certified for counsel.

10. Let the order be expeditipusly drawnup and the amendment incorporated forthwith.


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