Merely the proposed amendement will take away the pecuniary juridiction of Court, the amendment shall not be refused.- A citation.

Kerala High Court

T.K. Sreedharan vs P.S. Job on 22 March, 1968

Equivalent citations: AIR1969KER75, AIR 1969 KERALA 75, 1968 KER LJ 482 1968 KER LT 479, 1968 KER LT 479

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 so as 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 in AIR 1953 Hyd 212 and AIR 1959 Raj 146.

It is not possible to accept the dictum in AIR 1953 Nag 273. Order 7 Rule 10 (1) C. P. C. enables the return of a plaint only for presentation to the proper Court in which the suit should have been instituted. It will be possible to invoke the provision 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 try the suit. No question of applicability of Order 7 Rule 10 (1) C. P. C. can arise before that stage. It is also not possible to apply the provisions of Order XXIII C. P. C. for this purpose. When a Court has jurisdiction to entertain the suit it is only that Court that is competent to deal with the application for amending the plaint in that suit. If as a result of an order allowing the amendment the pecuniary jurisdiction is ousted it must return the plaint for presentation to the proper Court. The fact that the amendment relates back to the presentation of the plaint cannot affect the question a all. The amended plaint will be considered to have been wrongly presented in the Court not having jurisdiction to entertain the same in which case that Court will have to pass an order under Order 7 Rule 10 (1) C. P. C. When the original plaint and the application for amendment are returned for the reason that the effect of the amendment if allowed will be to deprive the jurisdiction of the Court to entertain the suit, the Court will not be acting under the provision of Order 7 Rule 10 (1) C. P. C. Further if the Court in which they are presented refuses the prayer for amendment then it is open to that Court again to direct the return of the plaint for presentation in the first Court. I do not think such a situation is contemplated. The question of ouster of jurisdiction will come in only after an order allowing the amendment is passed and not before that. Under such circumstances the Court below has got jurisdiction to deal with the application. In these circumstances, I set aside the order of the Court below and allow the revision petition. But I make no order as to costs.

IN THE HIGH COURT OF ORISSA AT CUTTACK

 CMP No. 4 of 2023 

Sulochana Parida and others …. Petitioners Mr. Bhaskar Chandra Panda, Advocate -

versus

Kamini Parida and others …. Opp. Parties Mr. Monmoy Basu, Advocate (For Opposite Party Nos.1 to 4 and 7

) CORAM: JUSTICE K.R. MOHAPATRA O

RDER Order No. 24.07.2023 . 

1. This matter is taken up through hybrid mode. 

2. Mr. Basu, learned counsel appearing for Opposite Party Nos.1 and 7 also files Vakalatnama on behalf of Opposite Party Nos. 2 to 4 in Court, which is taken on record. He also files an affidavit of Opposite Party No.7 stating that Opposite Party No.11-Mamata Parida has died issueless since 2021 and hence no substitution vide Opposite Party No.11 is necessary in this case

. 3. Mr. Panda, learned counsel for the Petitioners submits that the name of Opposite Party No.11 may be deleted at the risk of Opposite Party Nos.1 to 7

. 4. Taking into consideration the submissions made by learned counsel for the parties, name of Opposite Party No.11- Mamata Parida be deleted from the cause title at the risk of Opposite Party Nos.1 to 4 and 7.

 5. Order dated 3rd December, 2022 (Annexure-1) passed by learned Civil Judge (Junior Division), 2nd Court, Cuttack in CS No.134/58 of 2008/2003 is under challenge in this CMP, whereby an application for amendment of the plaint filed by the // 2 // Page 2 of 5 Plaintiffs/Petitioners has been partly allowed. Petitioners in this CMP assail part of the order refusing amendment of the plaint. 

 6. Mr. Panda, learned counsel for the Petitioners submits that CS No.58 of 2003 has been filed for declaration that the partition deed executed between Shyam Sundar and Radhu Parida is outcome of fraud and also for consequential relief. During pendency of the suit, Plaintiffs/Petitioners filed an application for amendment of the plaint to incorporate some of the Defendants as parties to the suit and in consequence to change the serial number of the proforma Defendants. A prayer for incorporation of the pleading with regard to validity of RSD No.1896 dated 30th April, 1999 was also sought for. Further, a prayer to declare such sale deed as null and void was also sought for in the plaint by way of amendment. Learned trial Court, while allowing the prayer for impletion of parties and change of serial number of proforma Defendants rejected the prayer for amendment to incorporate foundational pleadings as well as prayer to declare the sale deed dated 30th April, 1999 as null and void. Hence, this CMP has been filed. 6.1 Mr. Panda, learned counsel for the Plaintiffs/Petitioners submits that learned trial Court rejected the amendment, as aforesaid on two grounds, more particularly that the amendment sought for is barred by limitation and it will take away the pecuniary jurisdiction of the Court. It is his submission that the question of limitation can be decided at the time of hearing by framing an additional issue. Validity of the sale deed dated 30th April, 1999 depends upon the adjudication with regard to validity of the partition deed, which is under challenge. Instead of filing a separate suit, Plaintiffs/Petitioners sought for amendment of the // 3 // Page 3 of 5 plaint to save judicial time of the Court for adjudication of the lis between the parties. He further submits that only because the pecuniary jurisdiction of the Court will be taken away by virtue of amendment of the plaint, that itself cannot be a ground to refuse the prayer. He, therefore, prays for setting aside the impugned order to the extent of rejecting amendment of the plaint and to permit the Petitioners to incorporate the proposed amendment as sought for. 

 7. Mr. Basu, learned counsel for Opposite Party Nos.1 to 4 and 7 vehemently objects the above submission. It is his submission that the sale deed in question was well within the knowledge of the Plaintiffs on the date of filing of the suit. The Plaintiffs also did not take any step to amend the plaint at the time of impleading the purchasers of the aforesaid sale deed under Order I Rule 10 (2) CPC. When the suit was posted for hearing, such a plea has been taken to linger the proceeding. It is his submission that earlier, Plaintiffs/Petitioners had moved this Court in W.P.(C) No.659 of 2011 in which they had assailed the order refusing to stay further proceeding of the suit. Ultimately, Plaintiffs/Petitioners withdrew the said writ petition. Thus, the Plaintiffs are adopting different methods to linger the proceeding of the suit. As such, learned trial Court has committed no error in rejecting the prayer for amendment, as aforesaid.

 8. Considering the submissions of learned counsel for the parties, this Court finds that hearing of the suit has not yet commenced. Of course, the suit is of the year 2003 and is pending before learned Civil Judge (Junior Division), 2nd Court, Cuttack. Only because the pecuniary jurisdiction of the Court will be taken away by the amendment of the plaint, the same cannot be the sole // 4 // Page 4 of 5 ground to refuse the prayer. Since the Plaintiffs/Petitioners have prayed for declaration that the deed of partition as aforesaid to be null and void, learned trial Court should have considered the amendment to incorporate the pleadings as well as prayer with regard to validity of the RSD dated 30th April, 1999, as it is an consequence of such partition, which is under challenge. If the Petitioners/Plaintiffs are not permitted to incorporate such amendment at this stage, it may lead to multiplicity of litigations. In order to shorten the time for complete adjudication of the lis between the parties with regard to validity of partition as well as consequential execution of sale deed, this Court feels that learned trial Court should have allowed the amendment; which is of course subject to the question of limitation. If objection to the prayer for amendment is raised on the ground of limitation, the amendment sought for should not be thrown out at the threshold, more particularly when objection on limitation depends upon interpretation of materials on record. In such cases, question of limitation can also be decided by framing an issue to that effect. 8.1 In that view of the matter, this Court feels that the amendment sought for should have been allowed. 

 9. Accordingly, the impugned order under Annexure-1 rejecting the amendment, as aforesaid, is set aside. The petition for amendment filed by the Plaintiffs/Petitioners is allowed. Keeping in mind the suit is of the year 2003 and prayer for amendment was made in the year 2022, this Court feels that the contesting Defendants should be compensated by adequate cost. 

 10. Accordingly, this Court directs that consolidated plaint shall be accepted subject to payment of cost of Rs.10,000/- (rupees ten thousand only), which shall be paid to the Defendants // 5 // Page 5 of 5 along with copy of the amended plaint within a period of fifteen days hence. Needless to say that the Defendants are at liberty to file additional written statement to the amended plaint within a period of two weeks thereafter. It is made clear that if the consolidated plaint is not filed along with the cost as aforesaid within the time stipulated as above, the order under Annexure-1 impugned herein shall be revived. Learned trial Court shall also make an endeavour to see that the suit is disposed of at an early date.

 11. Interim order dated 11th January, 2023 passed in IA No.5 of 2023 stands vacated. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy

SECOND CITATION : KOKA VENKATA RMANAIAH NAIDU VS KARNAM VENKATA RATNAM   2010(6)ALT 133

THIRD CITATION 

When the claim as originally made is within the courts' jurisdiction but if the said claim is amended, the court might have no further jurisdiction, the said court itself is competent to allow such amendment. Thereafter, it would decide whether the amended plaint should be returned for presentation to the proper court, (see Vhavana v. Mangamma AIR 1949 Mad 208; Govardhan Bang v. Govt. of the Union of India AIR 1953 Hyderabad 212; Kundan Mal v. Thikaha Siyari, ; T.K. Sreedhan v. P.S. Job, ."