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2006 DIGILAW 795 (MP)

KRISHNA KUMAR KHANDELWAL v. MANGAL PRASAD

2006-06-29

DIPAK MISRA, S.C.SINHO

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( 1 ) THESE two writ petitions involving similar question of law was referred to a larger Bench by the learned single Judge who had expressed doubt with regard to correctness of the decisions rendered in the cases of Trilokchand v. Jabbar Khan, 1967 mplj Short Note 78 and Indori Lal v. Indore municipal Corporation, 1976 MPLJ SN 5 and shri Hanuman Rice Mill, Raigarh v. G. G. Dhandekar Machine Works Ltd. , 1984 MPLJ sn 2, whereby a view was expressed that when question of allowing an amendment would result in a situation where the claim would exceed the pecuniary jurisdiction of the trial Court, the legal procedure for the trial Court would be to return the plaint together with the application for amendment for consideration of that Court which would have jurisdiction to consider the plaint if the amendment was allowed. ( 2 ) AT the outset we may state that the aforesaid view was taken placing reliance on the decision rendered in the case of Lalji ranchhoddas v. Narottam Ranchhoddas, air 1953 Nagpur 273. In the case of Lalji ranchhoddas (supra) the High Court of nagpur had ruled 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 should return the plaint together with the application for amendment for the consideration of the court having jurisdiction to consider the original claim and the claim sought by the amendment not taken separately but together. " ( 3 ) SIMILAR view was expressed in the case of Pandit Rudranath Mishir v. Pandit Sheo shankar Missir, AIR 1983 Patna 53. ( 4 ) THE High Court of Bombay in the case of Benisham Mohanlal Khetan v. Mahadeo tukaram Borkar, AIR 1985 Bombay 462, has expressed the view as under : "3. It is apparent that Jaikrishna, ( AIR 1971 Bom 382 ) (supra) was not brought to the notice of the learned Judge who decided nareshchandra (1973 Mah LJ (Note) 54) (supra ). Moreover it appears that there is conflict of views on this point in other High courts also. Having regard to the letter and spirit of Order 6, Rule 17, CPC and the interest of substantial justice, it seems to us that the Jaikrishna represents the correct legal position viz. Moreover it appears that there is conflict of views on this point in other High courts also. Having regard to the letter and spirit of Order 6, Rule 17, CPC and the interest of substantial justice, it seems to us that the Jaikrishna represents the correct legal position viz. That Court has ample Jurisdiction to pass suitable orders on the application, and in case the amendment is allowed and carried out, the proper course to be followed is to return the amended plaint to the plaintiff for presentation to the proper Court under O. 7, R. 10, CPC. Here are our reasons. 4. Only other courses open for being adopted in such matter is either to return the plaint along with the amended application to be presented to the proper Court or to reject the application outright. Former alternative has the potentiality of creating unnecessary complications and shutting a litigant from one Court to other. What happens when the amendment is not allowed by the Court to whom matter is presented ? the later alternative has the potentiality of leading to grave injustice. The amendment application may be meritorious but has to be rejected only because it results in ousting the jurisdiction of this Court. " ( 5 ) IT is fruitful to note here that in the case of Kundan Mal v. Thikana Siryari, AIR 1959 Raj 146 , the learned Judge dissented from the decision rendered in the case of singara Mudaliar v. Govindaswami Chetty, air 1928 Mad 400 (V 15) and expressed the opinion that when it cannot be said that the lower Court had no jurisdiction in the suit when it was filed, lower Court would be perfectly justified in exercising its power of amendment even though the consequence of the amendment would be that the suit might become beyond jurisdiction of the court. It was further held if as a result of amendment, the suit becomes one not cognizable by the Civil Court then it would have to return the plaint for presentation to the proper Court. It was further held if as a result of amendment, the suit becomes one not cognizable by the Civil Court then it would have to return the plaint for presentation to the proper Court. ( 6 ) THE High Court of Madras in the case of A. T. Mathawan v. S. Natarajan, AIR 1980 noc 1 (Madras) opined if a Court which originally entertained the plaint can certainly decide the question of amendment even though by allowing amendment it may lose its jurisdiction and as a result of which the plaint may have to be returned for presentation to proper Court having jurisdiction as per the amended plaint. ( 7 ) IN this regard it would be profitable to refer to the view expressed in the case of simadri Panda v. Durgasi China Appanna, AIR 1982 Orissa 25, wherein R. C. Patnaik, j. (as his Lordship then was) concluded thus: "4. I regret to observe that the learned subordinate Judge was not properly advised at the Bar. There is a direct authority of our high Court in the case of Kurupa Naik v. Bhabhan Naik (1968) 34 Cut LT 1195 : ( AIR 1968 Ori 181 ). The principle as summarised in the placitum is "amendment adopting valuation of relief for injunction the same as value for the jurisdiction according to section 8 of the Suits Valuation Act, can be allowed even if such amendment oust the jurisdiction Court which must return the plaint to be filed in Court having jurisdiction. Reference may also be made to the case patel Construction and Co. at Bombay v. Shah raichand Maulak ( AIR 1973 Guj 283 ). In the well reasoned judgment Justice Mehta after analysis of the various relevant provisions of the Code of Civil Procedure said : "where the effect of the amendment would be to oust the jurisdiction of the court, which it originally had, the proper course is to allow the amendment and then return the amended plaint for presentation to the proper Court. To reject the application for amendment would take the suit out of the pecuniary jurisdiction of the Court is not in consonance with the spirit of O. 6, r. 17 nor is it open to the Court to return the plaint along with the application for amendment to be filed in the proper Court. To reject the application for amendment would take the suit out of the pecuniary jurisdiction of the Court is not in consonance with the spirit of O. 6, r. 17 nor is it open to the Court to return the plaint along with the application for amendment to be filed in the proper Court. " his Lordship after discussing the various alternative open when an amendment is sought in such a manner that allowing the same would oust the jurisdiction of the Court in which the suit was initially filed made observations quoted above. The same view is also taken in the case of T. K. Sreedharan v. P. S. Job ( AIR 1969 Ker 75 ) and in the case of M. Allouddin v. P. S. Lakshminarayan ( AIR 1970 Mad 247 ): i am sure if the aforesaid decision had been cited before him, the learned Subordinate Judge would not have held. "the learned Munsif had no jurisdiction to allow the amendment. The amendment thus allowed is neither proper nor correct because the learned Munsif had no pecuniary jurisdiction to entertain the suit of that valuation. " ( 8 ) THE High Court of Kerala in the case of T. K. Sreedharan v. P. S. Job, AIR 1969 kerala 75, has ruled thus : "it will be possible to invoke the provision of Order 7, Rule 10 (1) 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) can arise before that stage. It is also not possible to apply the provisions of Order 23 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 at 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 ). The fact that the amendment relates back to the presentation of the plaint cannot affect the question at 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 ). " ( 9 ) ON a perusal of the aforesaid decisions it is quite luminescent that various high Courts had taken different views. The language of Order 6, Rule 17 of the Code of civil Procedure cannot be construed in a narrow manner to mean that the application for amendment which will oust the Jurisdiction the proper course is to return the plaint along with an application for amendment for presentation before the proper court. We are disposed to think the correct legal position has been expressed in the cases of Benisham Mohan Khetan (supra), t. K. Sreedharan (supra) and Simadri Panda (supra ). We are inclined to think so, for the following reasons : " (i) Every Court has the inherent jurisdiction to decide its own jurisdiction and" when an application for amendment is filed seeking enhancement of the valuation by which the pecuniary jurisdiction of the original Court would be ousted it is incumbent and in a way, imperative on the part of the original Court to dwell upon the spectrum of amendment subject to contest by the defendants on which basis he would determine his pecuniary jurisdiction. His jurisdiction would only be ousted if he allows the amendment as that would be a consequence of the amendment. If the amendment petition is not adverted to solely on the ground a prayer has been made to amend the plaint in relation to valuation it would tantamount to prejudging the matter and abrogating the jurisdiction to decide once own. (ii) The logic that the amendment relates back to the date of presentation of the plaint is fundamentally immaterial inasmuch as only after the amendment takes place the jurisdiction as a matter of subsequent resultant would be ousted and then only it can be returned due to lack of requisite pecuniary jurisdiction. (iii) If it would become a warrant of law to return the plaint along with the application for amendment it can give rise to anomalous situation. (iii) If it would become a warrant of law to return the plaint along with the application for amendment it can give rise to anomalous situation. For example plaintiff obtains an order of injunction and the order of injunction is valid till a particular date by abundant caution he files an application for amendment and the Court is under obligation to return the plaint along with the amendment, a void is likely to usher in for the interregnum period. It is an elementary principle that law does not allow Itself to function in a vacuum. It may be argued that the Court can pass a protective order for the interregnum period but there again the question of jurisdiction may cause a problem and a remora. (iv) Once the plaint and the amendment application are returned to be resented before the Court which has pecuniary jurisdiction may refuse to entertain the application for amendment on many a score and in that case the plaintiff would again be bound to present the plaint in the original Court. This time consuming process not only puts the plaintiff in a different situation but also runs counter to public policy of speedy disposal and creates an impediment in putting the controversy to rest. (v) Assuming both the modes, namely, return of the plaint along with an application for amendment for presentation in proper Court at the initial stage or deal with the application for amendment and after allowing it return it to the plaintiff for presentation in proper Court are permissible, the second alternative appears to be more reasonable and convenient and really does not touch the area of jurisdiction of the original court in dealing so. That apart, the second mode should be taken recourse to by applying the doctrine of convenience inasmuch as the issue of lack of inherent jurisdiction does not arise. (vi) The controversy can be looked from another angle, namely, while deciding own's jurisdiction each Court has the authority to deal with jurisdictional fact. Valuation of suit though sought to be brought in by way of amendment is basically an issue relating to fact. When the question of returning of the plaint arises there is a presumption that the court would allow the amendment. It may refuse the prayer. Valuation of suit though sought to be brought in by way of amendment is basically an issue relating to fact. When the question of returning of the plaint arises there is a presumption that the court would allow the amendment. It may refuse the prayer. To conceive the idea that it must return the plaint along with amendment would tantamount to denuding the court to exercise his jurisdiction to determine his own jurisdiction. " ( 10 ) AT this juncture it would be appropriate to refer to the decision rendered in the case of Lekha Ram Sharma v. M/s. Balar marketing Pvt. Ltd. in Special Leave to Appeal (Civil) No. 16097/2002, wherein the apex Court has expressed the view as under : "it is settled law that while considering whether the amendment is to be granted or not, the Court does not go into the merits of the matter and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled law that merely because an amendment mav take the suit out of the jurisdiction of that Court is no ground for refusing that amendment. We. therefore, do not find any justifiable reason on which the High Court has refused this amendment. (Emphasis supplied) ( 11 ) IN view of the aforesaid premises, we are inclined to hold that the law laid down in the decisions rendered in the cases of trilokchand (supra), Indori Lal (supra), shree Hanuman Rice Mill, Raigarh (supra)and others which are in that line do not state the correct position of law. The correct position of law is where the effect of the amendment would entail in ouster of the jurisdiction of the Court, which it originally had, the proper course would be to allow the amendment and then return the amended plaint for presentation before the proper Court. ( 12 ) THE reference is answered accordingly. Registry is directed to place the matter before the learned single Judge. Order accordingly. .