BENISHAM MOHANLAL KHETAN Vs. MAHADEO TUKARAM BORKAR

JUDGEMENT

(1.) This reference has been made to resolve a conflict on a point-Can a Civil Court under Order 6, Rule 17 of the Civil Procedure Code allow the plaint to be so amended as to result in ousting its own jurisdiction in the matter. In (M/s. R. Jaikrishna & Co. v. A-1 Co-operating Housing Society Limited) 1971 Mh.L.J. 472 a Single Bench of this Court took a view that amendment cannot be refused merely on the ground that its effect would be to deprive the Court of jurisdiction to try the suit. Another Single Bench in the case of (M/s. Nareshchandra and Co. v. M/s. New Shriram Motors) 1973 Mh.L.J. Note No. 54 C.R.A. No. 413/71 decided on 20th November, 1972 took a contrary view and held that the proper course would be to return the plaint along with an application for amendment to the plaintiff for presentation to the Proper Court.

(2.) A Judge, Small Causes Court, Nagpur permitted an amendment of the plaint which had the effect of Converting a simple suit on the basis of a relationship of landlord and a tenant into a suit based on title, which cannot be tried in Small Cause Jurisdiction. Having obtained permission from the Rent Controller a notice of termination of tenancy was given by the plaintiff. On- that basis a small cause suit for ejectment was filed. During the pendency of that suit, the appeal against the order of the Rent Controller was allowed by the Collector. A review petition was filed raising a contention that the tenancy was void ab initio. Review was allowed holding that the proceedings before the Rent Controller under the circumstances were not maintainable and that the orders passed by the Controller as well as the Collector were nullity. The plaintiff by amendment wanted to base the suit on title contending that the order passed in review had become conclusive and, therefore, operated as res judicata. The Judge, Small Causes Court allowed the application and aggrieved thereby this revisional application come to be filed in High Court. It is during the course of hearing of this Civil Revision that the conflict was noticed and hence this reference was made.

(3.) It is apparent that Jaikrishna (supra) was not brought to the notice of the learned Judge who decided Nareshchandra (supra). Moreover it appears that there is conflict of views on this point in other High Court also. Having regard to the letter and spirit of Order 6, Rule 17 Code of Civil Procedure and the interest of substantial Justice, it seems to us that the Jaikrishna represents the correct legal position viz. that Court has ample jurisdiction to pass suitable orders on the application; 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 C.P.C. Here are our reasons :