M ALLAUDDIN Vs. P S LAKSHMINARAYANAN

JUDGEMENT

(1.) THIS petition is directed against an order of the First Additional District Munsif, madurai Town, refusing to allow an amendment of the plaint. The suit as laid was for a permanent injunction on the footing that the plaintiff was in possession and that the defendant should be restrained from interfering with it. There was an application for an interim injunction pending disposal of the suit and in the counter affidavit, it seems to have been alleged by the defendant that he was in possession. Thereafter the plaintiff filed the application to add a prayer for recovery of possession. The dismissal of the application was grounded on the supposition of the Munsif that the suit site appeared to have potential value as house site and if the amendment were allowed, the value for; the purpose of jurisdiction would probably exceed the Court's powers. On that view the Munsif directed the plaint to be returned for presentation before the Court of the subordinate Judge of Madurai, which alone, according to him, had jurisdiction to try this suit There was a further direction that the plaint should be made ready by 16-1-1968 and when the Munsif found that it was not so ready, he dismissed the application.

(2.) IN my view, the order of the Court below cannot be sustained. A Commissioner appointed for the purpose reported the value of the property to be only Rs. 1988. This value was not objected to by the plaintiff. The Court below examined a certain document and with reference to it, and the situation of the suit property, speculated that it had potential value as house site and its value might possibly exceed its jurisdiction. It gave no definite finding as to the value of the property. That being the case, I fail to see how the Court below could return the plaint. For ought we know the plaintiff may choose to continue the suit without pressing for the amendment. Apart from that, it is only as and when the plaint is amended and the Court below finds that the plaint as amended is in excess of its pecuniary jurisdiction that the question of returning the plaint could arise. In that case, the plaint could be treated, as I think as one presented to a Court having no jurisdiction, with the concomitant result that the Court will have to return it for representation to the proper Court. But the Court below in this case has acted too soon before it considered the amendment and ordered it. The point is that so long as the amendment is not allowed, it would be nobody's case that the unamended plaint would be without the jurisdiction of the Court, and it would follow from it that it has no jurisdiction at all to return the plaint unless the plaintiff himself wanted a return of it for presentation to a different Court. That being the case, the further consequential order dismissing the application is also bad.

(3.) SRI Hariharan for the respondent contends that where allowing an amendment of a plaint sought for will result In deprivation of the jurisdiction of the Court allowing it, the amendment should not be allowed. I do not think that this proposition is supported by Singara Mudaliar v. Govindaswami Chetty, 54 Mad LJ 145 = (AIR 1928 Mad 400) and Nagutha Md. Nainar v. Vedavalliaminal, 1959-1 mad LJ 307, which he relies on. The first of them related to the Original Side of this Court acting as a transferee Court from the City Civil Court in respect of a plaint. Venkatasubba Rao, J. referred to Annie Besant v. Narayaniah, ILR 38 Mad 807 = (AIR 1914 PC 41), which held that the powers of the High Court, in dealing with suits transferred under Clause 13 Letters Patent, would be the powers which, but for the transfer, might have been exercised by the Court, from which the transfer was made, and posed the test, in view of that decision, if the amendment sought for was allowed by the Original Side of the High Court, it would take it ipso facto outside the jurisdiction of the City Civil Court. The learned Judge considered that if the answer was affirmative, the amendment sought for should be disallowed. With due respect, that principle is well understandable. The transferee court allowing an amendment which would have that effect, would imply that the suit could neither be transferred to the original Court nor the transferee Court could proceed with the suit because its jurisdiction is controlled by the width of the jurisdiction of the Court from which the suit is transferred. That is not the case here. The Court below is the Court properly in seisin of the plaint as it is and it is only as and when the amendment is allowed the question would arise whether that court could try the suit having regard to the enhanced valuation of the suit property for purposes of court-fee and jurisdiction. In my view, I the right course to adopt in such a case is to allow the amendment, grant an oppor-tunity to the plaintiff to pay the deficit court-fee, and if there is any question about pecuniary jurisdiction arising, examine the matter and if necessary in the light of a report to be called for from a Commissioner and on a definite finding on that question, to decide whether the plaint should be retained or will have to be returned to the plaintiff as one in excess of the pecuniary jurisdiction of that Court. The other case cited is also not of assistance to the respondent, because, thereafter the suit had ended in the trial Court and during the pendency of an appeal therefrom, amendment of the plaint was sought for which, if allowed, would at once make the suit outside the jurisdiction of the trial Court. The view was expressed by Ramaswami, J. , that in such a case, amendment of the plaint should not be allowed. I entirely agree with that principle. Only It has no application to the instant case as the situation, as I have endeavoured to point out, is different. The amendment of the plaint, if allowed, would not here have the effect of undoing the result of a suit which has been tried and disposed of by the very fact of allowing the amendment and rendering the suit in excess of the pecuiary jurisdiction of the trial Court. The petition is allowed. No costs.