BENARAS STATE BANK LIMITED Vs. NARBADA PRASAD MISHRA

JUDGEMENT

(1.) -Heard learned counsel for the parties. In the present case the respondent has been served and counter and rejoinder affidavits have been filed, as such the present revision is being decided finally at the stage of admission.

(2.) THE present revision is directed as against the order dated 3rd December, 1987, passed by VIIth Addl. District Judge, Kanpur Nagar by virtue of which the amendment of the plaint deleting certain prayer of the plaintiff was permitted. THE main contention of the appplicant is that the court below while deleting certain part of the prayer of the plaint has committed an error as it has .no jurisdiction for the same and on part of the relief or plaint which is not within the competence of the court is allowed, the court below has inherently lacked the jurisdiction and it has even no jurisdiction to order for amendment. Learned counsel for the applicant placed reliance on the case of Akhilesh Chand Varsheny v. Smt. Bhagwati Devi, 1975 AWC 433. In this case it has been held that where a suit is filed in the court of Judge Small Causes and part of relief is within the competence of that court and part of relief is beyond its jurisdiction, then whole suit becomes beyond its jurisdiction and it is the civil court which will be competent to grant both reliefs. On this basis the learned counsel for the applicant urged that since even this part of relief claimed was beyond jurisdiction of Judge Small Causes Court, then it inherently lacks the jurisdiction and was incompetent even to allow the amendment. In the aforesaid decision of the case of Akhilesh Chand Varshney v. Smt. Bhagwati Devi (supra) the court was called upon to decide the matter regarding jurisdiction where admittedly some of the reliefs were triable by the Judge Small Causes and some by the regular civil court and in such a matter once the court came to the conclusion that the plaint consists of two parts, one of them is within the jurisdiction and the other is beyond jurisdiction, the whole suit could not be tried and the suit should be returned for presentation before the proper court. THE question in the present case is not that as is in the aforesaid decision. THE question raised here is whether the court has power to amend the plaint which according to the applicant is that a part of the relief was not cognizable by that court. For this proposition reliance was placed on the case of Tirkha v. Ghasi Ram, AIR 1935 Alld. 842, wherein it has been held "that a court has no right to direct the amendment of a plaint when it has no jurisdiction over the subject matter of the plaint. Hence where a suit is filed in a court for a sum beyond the jurisdiction of the court, the court has no right to allow amendment of the plaint reducing the amount claimed so as to bring it within the pecuniary jurisdiction of the court." Subsequent to the aforesaid decision there is Division Bench decision in the case of Kundan Lal v. Sri Narain Lal, AIR 1958 Alld. 96, where the afore- sain decision of Tirkha v. Ghasi Ram (supra) was considered by the Division Bench and after considering the same it came to the conclusion that "it cannot be doubted that a court has jurisdiction to pass certain orders even though it has no jurisdiction to try the suit; it has power to find that it is beyond its jurisdiction, it has power to order the plaint to be amended so as to enhance the valuation and it has power to return the plaint for presentation to a competent court. When a court has jurisdiction to pass certain orders, even though, it has no jurisdiction to try the suit, there is no justification for saying that it cannot allow an amendment, if it has no jurisdiction to try the suit. This latter Division Bench decision has very clearly held that even if a part of relief is beyond jurisdiction, the court is competent to allow such amendment by way of deleting the same. This decision is very clear and is applicable in the present case. THE amendment in the present case was to delete a part of the relief which is beyond competence of the court and that was allowed by the trial court. In view of this I do not find that any illegality or jurisdictional error was committed by the court below in permitting such amendment.