Kerala High Court
Suri Films vs S.N. Govinda Prabhu And Brother on 17 June, 1987
Equivalent citations: AIR1989KER28, AIR 1989 KERALA 28, (1987) 2 KER LT 145 (1987) 5 REPORTS 597, (1987) 5 REPORTS 597
ORDER
1. The short question that poses for consideration in this Civil Revision Petition filed by the defendant is whether a court, before which a suit which it is competent to entertain, and dispose of is pending, could order an amendment of the plaint involving ouster of its jurisdiction.
2. The suit is one for injunction filed by the proprietor of a cinema theatre to restrain the defendant a film distributor, from exhibiting his films in the locality other than the theatre of the plaintiff on the basis of an agreement. The application for temporary injunction filed by him was dismissed and the order has become final by dismissal of the appeal. The application then filed by him for withdrawal of suit with permission to file a fresh one was also dismissed in the absence of grounds under Order 23, Rule 1. That order has also become final. Then he filed an application for amendment of the plaint incorporating the terms of the agreement and including a prayer for specific performance of the agreement. That was opposed by the revision petitioner on grounds of maintainability, lack of bona fides, change of character of suit, substitution of cause of action and ouster of jurisdiction of the Court by amendment. Rejecting all these contentions the prayer for amendment was allowed and the revision is directed against that order.
3. Though several objections were taken by the revision petitioner before the trial Court the only ground urged before me on his behalf by Shri T. P. Kelu Nambiar was the one based on ouster of jurisdiction of the Court by allowing the amendment. The decision of a Single Bench of this Court in Sreedharan v. P. S. Job, AIR 1969 Ker 75 : 1968 Ker LT 479 followed by another Single Judge in Ponnumani v. Narayanan Nair, 1985 Ker LJ 459, is against his contention and therefore his request was that the matter may be referred to a larger bench since he is of the view that those decisions require reconsideration. The learned Advocate pointed out that this is a legal question on which there is sharp divergence of opinion between various High Courts in India.
4. A Single Bench of the Madras High Court in Singara v. Govindaswami, AIR 1928 Mad 400, observed that no Court will permit a plaint to be so amended as to oust its own jurisdiction to try the suit. That decision was followed by another single Judge of the same Court in Nagutha Mohammed Nainan v. Vedavalli Ammal, (1959) 1 Mad LJ 307. The Andhra Pradesh High Court in E.R.R.M.H.S. Committee v. P. Atchayya, AIR 1957 Andh Pra 10 (Single Bench) followed the decision in Singara's case, AIR 1928 Mad 400. A Division Bench of the Nagpur High Court in Lalji v. Narottam, AIR 1953 Nag 273, also took the same view and said 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. That decision also held the view that if the amendment ousting jurisdiction is allowed, it is in effect trying a suit beyond its pecuniary jurisdiction. The learned Judge also said :
"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."
Rachhya Singh v. R.R.B.P. Singh, AIR 1973 Pat 179, also took the view that such an amendment cannot be allowed.
5. Another decision of the Madras High. Court in Nandula Bhavani v. Saladi Mangamma, AIR 1949 Mad 208, took the view that where the claim was originally within the jurisdiction of the Court but falls outside it as a result of the amendment, the Court should, if the amendment is allowed, return the plaint for presentation to the proper Court. The same view was (aken by a Single Judge of the Rajasthan High Court in Kundan Mal v. Thikana Siryari, AIR 1959 Raj 146. In Goverdhan v. Govt. of Union of India, AIR 1953 Hyd 212, also the view taken was that the question of allowing or rejecting the amendment should be on the merits and if after allowing the amendment the Court comes to the conclusion that it has no jurisdiction, the plaint has to be returned for presentation before the proper Court. The same view was taken in Simadri Panda v. Durgasi China, AIR 1982 Orissa 25 and Patel Construction and Co. v. S. R. Amulakh, AIR 1973 Guj 283. The latter decision also said that to reject an application for amendment on the ground that it would take the suit out of the pecuniary jurisdiction of the Court is not in consonance with the spirit of Order 6, Rule 17 nor is it open to the Court to return the plaint along with the application for amendment to be filed in the proper Courl. Almost all the prior decisions were considered by a Single Judge of this Court in Sreedharan's case, AIR 1969 Ker 75 and the view laken was that if after allowing the amendment the Court comes to the conclusion that it has no jurisdiction the plaint has to be returned for presentation before the proper Court. That view was followed in Ponnumani v. Narayanan Nair, 1985 Ker LJ 459. I am in perfect agreement with that view and as requested by the counsel I do not think that there is any necessity for referring the matter to a larger Bench for reconsideration.
6. As held in Peres and Sons v. Puravath, 1960 Ker LT 731, the only two main considerations necessary for allowing amendment, under Order 6, Rule 17 are that it should not work injustice to the opposite side and it must be necessary for determining the real question in controversy between the parties. Depending upon the facts and circumstances of each case some other subsidiary considerations also may weigh with the Court. In allowing or rejecting the application for amendment the Court should not go into the merits of the case or the rival claims.
7. It is true that the amendment when allowed relates back to the date of the suit and if the suit as framed is beyond the jurisdiction of the Court it would have no jurisdiction to allow the amendment for want of jurisdiction to entertain the suit itself. Entertaining and trying a suit which, when presented is beyond the jurisdiction of the Court, is definitely not permissible. But the fact that the amendment relates back to the date of presentation of the plaint is notional. Even such a notional conception will come into play only when the plaint is amended. Without amendment if the Court is having jurisdiction it can very well entertain and try the suit even though a superior or some other Court is also having the same jurisdiction. The normal rule is that the lowest Court having jurisdiction should entertain and try the suit. Then only the remedies like appeal and revision will be effective. When the lowest Court having jurisdiction is seized of the matter it can be returned for presentation before another Court on the ground of want of jurisdiction only if its jurisdiction is ousted. The question of ousting the jurisdiction in such a case would normally arise only if the claim is amended unless there is ouster by some statutory change. When a Court having jurisdiction is seized of a matter the question whether the amendment has to be allowed or not could be considered only by that Court. The question of ouster of jurisdiction and incompetency to decide anything in the suit will come into play only when that effect is achieved by amendment. There must be some authority to decide whether the amendment is to be allowed or not. Before that is done the Court seized of the matter and having jurisdiction alone will have to deal with it. Otherwise there will be a vaccum. Whether the amendment is allowable or not is a matter to be decided by the Court. Which is the Court that has to decide the matter if such a move comes when the suit is pending before a Court of competent jurisdiction? Is the jurisdiction to be decided on the assumption that each and every move for amendment capable of ousting jurisdiction has to be allowed? If on that assumption the plaint is returned for presentation before the competent Court and ultimately the amendment application is dismissed, what will happen?
8. There the suit may have to be returned for representation to the original Court itself. A plaintiff who is so inclined can repeat this process and have the case shuttled from Court to Court frequently. That is not the correct legal position. The question of ouster of jurisdiction will come only when the plaint is amended and the claim brought beyond the reach of the Court before which it is pending. That process does not involve trying a suit beyond its jurisdiction. The Court before which the case is pending alone is the Court competent to deal with the amendment and in that process the merit of the claim and the question whether the effect will be ouster of jurisdiction are extraneous considerations which are not in consonance with the spirit of Order 6, Rule 17. Rejecting an application for amendment on the only ground that the amendment will oust the jurisdiction of the Court is also not in consonance with Order 6, Rule 17, nor is it conducive to the ends of justice. The jurisdiction of the Court is ousted only when the plaint is amended and if will be possible to invoke the provision of Order 7, Rule 10(1), C.P.C. only after amendment of the plaint, the effect of which alone will oust the jurisdiction of the Court. Before that stage no question of applicability of Order 7, Rule 10(1) for return of the plaint could arise. The provisions of Order XXIII also cannot be invoked for that purpose.
9. Even though the amendment notionally relates back to the date of presentation of the plaint, the amended plaint will be deemed to have been wrongly presented before the Court not having jurisdiction to enterlain the same only when the amendment is carried out as per orders of Court and then alone the question of passing an order for return of plaint for presentation before the proper Court under Order 7, Rule 10(1) and the applicability of Rule 10A could arise. Under these circumstances and legal position, I could only express my respectful disagreement with the views expressed in Singara v. Govindswami, AIR 1928 Mad 400, Nagutha Mohemmed Nainan v. Vedavalli Animal, (1959) 1 Mad LJ 307, E.R.R.M.H.S. Committee v. P. Atchayya, AIR 1957 Andh Pra 10, Lalji v. Narottam, AIR 1953 Nag 273 and Rachhya Singh v. R.R.B.P. Singh, AIR 1973 Pal 179 and agree with the principles laid down in Nandula Bhavani v. Saladi Mangamma, AIR 1949 Mad 208, Kundan Mal v. Thikana Siryari, AIR 1959 Raj 146, Goverdhan v. Govt. of Union of India, AIR 1953 Hyd 212, Simadri Panda v. Durgasi China, AIR 1982 Orissa 25, Patel Construction and Co. v. S. R. Amulakh, AIR 1973 Guj 283, Sreedharan v. P. S. Job, AIR 1969 Ker 75 and Ponnumani v. Narayanan Nair, 1985 Ker LJ 459. I do not feel inclined to accept the contention that Sreed haran's case, AIR 1969 Ker 75, requires reconsideration by a larger Bench.
The order of the trial Court is perfectly correct. There is no error of jurisdiction, illegality or material irregularity. The Civil Revision Petition is dismissed, but in the circumstances without costs.