G.K. Mitter, J.
1. This is an application for the amendment of a plaint tiled in the year 1951. The plaintiff Subodh Kumar Chatterjee filed this suit against the Union of India for recovery of Rs. 12500/- as damages for shortage of ground-nut oil booked by the plaintiff at Sealdah Station in December 1949 to Silchar in Assam. The plaintiff relies on a certificate of shortage issued by the Assam Railway on 18-6-1950. In paragraph 6 of the plaint the plaintiff states that 'notice under Section 77 of the Indian Railways Act, has been duly served by the plaintiff on the Company' meaning (East India Railway Administration) 'and the said Assam Railway at Calcutta within the jurisdiction'. In paragraph 7 the plaintiff states 'notice under Section 80 of the Code of Civil Procedure, has been duly given to the defendant' and in paragraph 8 'inasmuch as part of the cause of action herein arose in Calcutta within the jurisdiction aforesaid and pleaded in paragraph 6 hereof, the plaintiff craves for leave under Clause 12 of the Letters Patent'. The application has been made nearly eight years after the institution of the suit by adding to paragraph 7 above the following sentence: 'The said notice was served upon the defendant through the General Manager E. I. R. at 17, Netaji Subhash Road, Calcutta, within the ordinary civil jurisdiction of this Hon'ble Court'. Further in paragraph 8 of the plaint the plaintiff desires to insert the figure 7 by deletion of the figure 6.
2. There can be little doubt that the plaintiff has made this application on the basis of the judgment in Bansi v. Governor-General-in-Council, : AIR1952Cal35 , wherein it was held that service of notice under Section 77 of the Indian Railways Act does not form a part of the cause of action for a suit. All that the plaintiff really wants is that he should be allowed to plead that notice under Section 80 of the Code of Civil Procedure was served within the jurisdiction of this Court. Service of such notice is an essential pre-requisite to a proper suit and without such averment a suit against the Union of India would be thrown out on demurrer,
3. The point argued on behalf of the defendant is that as the plaint stands today, it discloses that no part of the cause of action for the suit has arisen within the jurisdiction of this Court, and as such this Court is not competent to try the suit. It was argued that the present application for amendment, although a very simple one, cannot be allowed to foe made if this Court finds that it has no jurisdiction to entertain the plaint as filed.
4. Reliance was chiefly placed on a decision of the Allahabad High Court in the case of Tirkha v. Ghashiram : AIR1935All842 . In this case the suit was filed on 2-7-1934 in the Small Causes Court of Muzaffarnagar for recovery of Rs. 553/8/- i.e., in excess of the pecuniary jurisdiction of the Court. The defendant took the plea that the court could not entertain the suit. The plaintiff then made an application for amendment of the plaint reducing the claim to Rs. 500/-. This application was allowed. The learned Judge of the Allahabad High Court in revision held that the order allowing the amendment of the plaint was made without jurisdiction following two decisions of the Madras High Court in Varuda Pillai v. Thillai Govinda Raja Pillai, AIR 1931 Mad 8 and Ramanna v. Amireddi AIR 1931 Mad 67. In both these cases the question related to the pecuniary jurisdiction of the court. In the first case on the plaint being returned to the plaintiff for presentation to the proper court he amended the plaint by striking off one relief so as to bring the suit within the jurisdiction of the court. In the second case the court found that the plaintiff's valuation was wholly inadequate and directed him to pay enhanced court-fees. It was observed in the second case ( see at page 69)
'when the court finds that on the correct valuation, the plaint is not cognizable by it, it seems to us that the proper thing to be done is to return the plaint so that it may be presented to the court having jurisdiction'.
5. In the case of Mutyalamma v. D. Narayanswami, AIR 1949 Mad 719, relied on by counsel for the defendant the District Munsiff allowed an amendment of the plaint so as to bring it within his jurisdiction and to lessen the fiscal burden of court-fee which might be cast upon the plaintiff. The learned Judge Mack, J. observed that
'the value of the suit must first be ascertained in accordance with the provisions of Section 7(v) of the Court Fees Act and if this is found to be in excess of the District Munsiff's jurisdiction, he should at once return the plaint for presentation to the proper court. It is ordinarily not open to a District Munsiff, though there can be some exceptional circumstances which may justify this course, to allow an amendment of any plaint which may help to bring a doubtful plaint really within the jurisdiction of a higher court within his jurisdiction. It is ordinarily his duty to decide his own jurisdiction to try the original plaint before him'.
6. It will be noticed that in all these cases, the disputes centered round the valuation of suits to which the provisions of Order 7 Rule 10 of the Code of Civil Procedure apply. Under this rule it is the duty of the court to return the plaint at any stage of the suit so that it can be filed in the court in which the suit should have been instituted. Further, under Sub-clauses (b) and (c) of Order 7 Rule 11 of the Code of Civil Procedure, the plaint must be rejected where the relief claimed is undervalued and the plaintiff on being required by the court to correct the valuation within a time fixed by the court fails to do so, or where although the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the court to supply the requisite stamp paper within a time-fixed by the court, fails to do so. Under Section 6 of the Court Fees Act no plaint can be filed unless proper court-fees are paid. But neither Order 7 Rule 10 nor Order 7 Rule 11 Sub-clause (b) or Sub-clause (c) applies to this court in the exercise of its ordinary or extra-ordinary original civil jurisdiction. These rules therefore do not apply to the plaint before me. Where the plaint must either be rejected or returned for presentation to another court it can be urged by the defendant that the court has no jurisdiction to amend the plaint. The plaint as it stands discloses a cause of action against the defendant and cannot be rejected under Order 7 Rule 11(a) of the Code of Civil Procedure. Unless it is amended this Court when trying the suit may probably hold that it has no jurisdiction to entertain it but I see no injustice being done to the defendant by the mere insertion of words to show where notice under Section 80 of the Civil Procedure Code was served so as to attract the jurisdiction of this Court.
7. I therefore propose to allow the application for amendment and to give the defendant leave to file an additional written statement. The plaintiff must pay the costs of this application as also of the additional written statement, if any. Certified for counsel.