Delhi High Court
Harish Kumar Chaudhary vs Vimal Wadhawan And Anr. on 21 April, 1992
Equivalent citations: 47(1992)DLT246, 1992(23)DRJ440
JUDGMENT P.N. Nag, J.
(1) The facts leading to the revision petition are: That the plaintiff has filed a suit for permanent as well as mandatory injunction directing the defendants to restore the possession of Barsati Room and Bath Room. The plaintiff later on wanted to amend the plaint by amending the relief clause regarding permanent as well as mandatory injunction into a suit for possession, the valuation of which was fixed at Rs.10,000.00 . p73 There is no dispute between the parties that the jurisdiction of Shri A.K. Chaturvedi, Sub Judge Fourth Class, was only up to Rs.1,000.00 . Therefore, in case the amendment is allowed, it will result in ousting the jurisdiction of the learned Sub Judge. The learned Sub Judge has, therefore, dismissed the application for amendment relying upon a decision in E.R.R.M.H.S. Committee v. P. Atchayya (AIR 1957 Andhra Pradesh 10) which lays down that the court cannot permit a plaint sought to be amended as to ousts its own jurisdiction. The present revision has been filed against this order.
(2) Mr. Marwaha, counsel for the appellant submits that the consensus of various High Courts in the matter is that the Court in which the amendment is applied for and which is competent to entertain the original suit can decide the amendment application of the plaint even if it may involve ouster of jurisdiction of that Court. After the amendment is allowed, the plaint can be returned for presentation before the proper court under Order 7 Rule 10. If the amendment results in the ouster of jurisdiction of that court, after the amendment is carried out, the plaint can be returned.
(3) Mr. Munjal, however, on the other hand, argues that the view taken by the Andhra Pradesh High Court which has been relied upon by the trial court is correct that the court cannot permit a suit to be amended so as to oust its own jurisdiction. He relies upon Rachhya Singh and another v. Ram Ran Bijai Prasad Singh and others .
(4) In order to appreciate the contention of the learned counsel for the petitioner, I would like to refer to Suri Films v S.N. Govinda Prabhu and Brother (AIR 1989 Kerala 29). In that case various authorities for and against the proposition have been noted and discussed by the learned single Judge and has come to the conclusion that the Court before which a suit which it is competent to entertain and dispose of is pending can allow amendment of the plaint involving ouster of its jurisdiction. After allowing the amendment the Court should return the plaint as amended for presentation to the proper Court. When a Court having jurisdiction is seized of a matter, the question whether the amendment of the plaint 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. 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 entertain the same only when the amendment is carried out as per orders of the 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) could arise.
(5) Similar view has been expressed in Benisham Mohanlal Khetan v. Mahadeo Tukaram Borkar . In that case it has been held that a civil court under Order 6 Rule 17 can allow the plaint to be so amended as to result in ousting its own jurisdiction in the matter, 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 Order 7 Rule 10 of the Code of Civil Procedure.
(6) In M/s Patel Construction & Co. at Bombay and another v. M/s Shah Raichand Amulakh and another , Makireddy Ramayyamma v. Menti Kamalakararao etc. similar view has also been expressed.
(7) In E.R.R.M.H.S. Committee v. P. Atchayya (AIR 1957 Andhra Pradesh 10) and Rachhya Singh and another v. Ram Ran Bijai Prasad Singh and others it has been held that the amendment of pleadings which oust the jurisdiction of the Court trying the suit should not be allowed. Similar view has also been expressed in C. Singara Mudaliar v. M. Govindaswami Chetty and others (AIR 1928 Madras 400).
(8) Therefore, in the light of what is discussed above, it is apparent that the consensus view which has been taken by various High Court appears to be is that a civil court under Order 6 Rule 17 can allow the plaint to be so amended as to result in ousting its own jurisdiction in the matter 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 Order 7 Rule 10 of the Code of Civil Procedure.
(9) It may be noted here that the Madras High Court itself has taken a contrary view in its judgments in Bhavani v. Mangamma (AIR 1949 Mad. 208) and in M. Allauddin v. P.S. Lakshminarayanan wherein they have held that the court should not refuse the amendment merely on the basis that if the amendment is allowed, the suit would be beyond its pecuniary jurisdiction.
(10) As already stated, in Makireddy Ramayyamma's case (supra), the Andhra Pradesh High Court has also taken a similar view, contrary to the view expressed in E.R.R.M.H.S. Committee v. P. At chayya's case (supra). I have carefully considered the judgment and prefer the consensus view expressed by the various High Court that the amendment of plaint under Order 6 Rule 17 can be allowed even if it ousts its own jurisdiction in the matter and after 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 Order 7 Rule 10 of the Code of Civil Procedure.
(11) In these circumstances, I am of the opinion that the trial court has exercised its jurisdiction with material irregularity. The impugned order is, therefore, set aside. The amendment sought for is allowed. The amended plaint is stated to have already been filed before the trial court. The trial court will proceed in accordance with law.
(12) Revision petition is allowed. No costs.