AMRITALAL MULLICK Vs. SESH PROKASH MULLICK

JUDGEMENT

(1.) This is an application for addition of parties and for amendment of the plaint. The suit is instituted by two sons of Dilal Chand, a predeceased son of Gour Mohan for construction of the Will of Gour Mohan, for a declaration of their right to immediate possession, for partition and for other reliefs. The parties impleaded as defendants are the two executors of the Will of Gour Mohan, the surviving sons of Gour Mohan and their respective wives, a widow of the deceased son and another son, Bholanath who is no longer in the family having been given in adoption in the Law family. The defendants other than the executor defendants are life annuitants. Under the Will the estate, is left to the grandsons after the death of their respective fathers. Inasmuch as part of the estate of Gour Mohan which is the subject matter of this suit, is situate outside the jurisdiction of this court, the suit has been instituted after obtaining leave under Clause 12 of the Letters Patent. As stated before by the amendment some parties are sought to be added. The parties sought to be added are the remaining grandsons of Gour Mohan who have been given the corpus after the death of their respective fathers in defined shares. The defendants sought to be added belong to two categories viz. those to whom the residuary estate has vested and who are entitled to possession after the death of their respective fathers. They are defendants Nos. 13, 14, 15, 16, 18 and 19. The other two sought to be added are defendants Nos. 12 and 17. It is alleged in paragraph 12 that no relief is claimed against them, but that the suit should be decided in their presence.

(2.) Mr. Bhabra learned counsel appearing for the defendant Bholanath Law opposed the ap~ plication. As stated before Bholanath is the son of Gour Mohan who has been given in adoption to the Law family. Under the Will Bholanath is entitled to an annuity. No other party to the proceeding is opposing the application.

(3.) Ground taken by Mr. Bhabra in opposition to this application for amendment is that having regard to the wording of Clause 12 of the Letters Patent, a suit instituted after obtaining leave under Clause 12 of the Letters Patent cannot be amended at all. It is not permissible in law to obtain a fresh leave under Clause 12 in such cases for amendment of the plaint. Clause 12 of the Letters Patent empowers the High Court "to receive, try and determine suit with the leave oft the Court first obtained" in the case of "suit for land" when the land is situate partly within and partly outside the jurisdiction of this Court and in case of other suits when the cause of action arose partly within and partly outside the jurisdiction of the Court, A suit is "received" by the Court when the plaint is presented and hence the requirement of Clause 12 can only be satisfied if leave to institute the suit is given before the plaint is presented and received by the Court. Once plaint has been presented and has been received; and registered and numbered as required by the Code of Civil Procedure, this Court is not empowered under Clause 12 to give leave a second time. When a suit is sought to be amended either by adding new parties or by introducing a new cause of action, it becomes a new suit. If the suit is of the class that can only be instituted after obtaining leave under Clause 12 of the Letters Patent, the amendment becomes inadmissible for the simple reason that the suit having already been "received" and the plaint having already been admitted registered and numbered as a suit it cannot be received again having regard to the clear language of Clause 12 of the Letters Patent. It follows that law does not allow amendment of a plaint filed after obtaining leave under Clause 12 of the Letters Patent. Instant suit being a suit for land in which leave under Clause 12 of the Letters Patent was obtained, the application for amendment of the plaint is not maintainable.