KUTTIKKADAN ENGINEERING COMPANY Vs. HINDUSTAN STEEL LTD

JUDGEMENT

(1.) The question that arises for consideration in this case relates to the representation of a plaint returned by a court to be presented to the court in which the suit should have been instituted, to the very same court which returned the plaint. After making necessary amendments in the plaint to attract the territorial jurisdiction of the court which returned the plaint, the same plaint was represented to the court which returned the plaint by the plaintiff without paying fresh court fee. The court rejected the plaint saying:

(2.) Shri T. L. Viswanatha Iyer, learned counsel for the petitioner, contends that the court below went wrong in rejecting the plaint on the ground that there is already a finding regarding the question of jurisdiction in the order returning the plaint. According to the learned counsel, that 6nding was on the basis of the averments contained in the plaint as it stood then and in view of the fact that the plaint has now been amended before representation by incorporating averments necessary to attract the court's jurisdiction, the court could not reject the plaint simply saying that the question of jurisdiction was already decided. Learned counsel further contends that it is open for the plaintiff to amend a plaint returned by the court and represent the same to the very same court and the court can reject the same only if the court has not either the territorial jurisdiction or the pecuniary jurisdiction to try the case as put forth in the represented plaint Learned counsel refers to O.7 R.10 of the Code of Civil Procedure and contends that the return of the plaint was for representation to the proper court and the plaint was represented to the very same court because after the changes made in the plaint that court gets jurisdiction in the matter. In such a case, the finding in the order returning the plaint cannot at all stand in the way of the court in accepting the plaint and the court will have to accept the same if the represented plaint reveals a cause of action which the court has jurisdiction to try. Learned counsel refers to O.6 R.17 of the Code of Civil Procedure and contends that only when a suit is on the file the procedure prescribed by the Code need be complied with for making changes in a plaint. In this connection, reference is made to Debi Sahai v. Ganga Sahai (AIR 1954 Allahabad 749) wherein it is said:

(3.) Shri E R. Venkiteswaran, learned counsel for respondents, contends that the plaintiff cannot represent the same plaint even if amended by him to the very same court which returned the same for presentation to the proper court without paying fresh court fee. Learned counsel points out that by amending the plaint out of court and adding a cause of action the plaint has ceased to be the plaint which was returned by the court. Learned counsel refers to S.26 of the Code of. Civil Procedure and contends that the representation of the plaint after amendment to the very same court is the institution of a fresh suit and hence he cannot escape the payment of fresh court fee, Learned counsel then contends that even in a case where a plaint is represented to the proper court as per the order of a court returning the same for representation if the plaintiff makes substantial changes in the plaint before representation he will have to pay fresh court fee. In support of this contention reliance is placed on Sarabhamma v. Peda Veeranna (1949 (II) MLJ 159) wherein it is said: