PANDIT RUDRANATH MISHIR Vs. PANDIT SHEO SHANKAR MISSIR

JUDGEMENT

(1.) The short question of law involved in this miscellaneous appeal is as to whether a Court not having jurisdiction over the suit itself, can allow amendment of plaint.

(2.) The suit in question was filed in the first Court of the Subordinate Judge at Arrah for partition of certain joint family properties. Undisputedly all the immoveable properties sought to be partitioned were situated in the district of Balia in Uttar Pradesh, barring a savings bank account in the State Bank of India at Arrah branch. It appears that a question of maintainability of the suit was raised by the office and thereupon the plaintiffs filed a petition on 15-5-1970 for amendment of the plaint which was allowed. The question of jurisdiction was then taken up by the Court below and by order dated 18-5-1970, the Court recorded the following order: (sic)

(3.) Section 16 of the Civil P. C. inter alia, prescribes that suits "for partition of immoveable property .. ... ... shall be instituted in the Court within the local limits of whose jurisdiction the property is situate". Mr. Jagdish Pancley, appearing in support of the appeal, however, challenged the order on the ground that after the amendment of the plaint, as already stated above, the suit had become competent and maintainable in the Court below by virtue of Section 17 of the Code as one of the properties was situated within the territorial jurisdiction of the Court below. The question is, as to whether the amendment itself could have been allowed by the Court below because unless this question is answered in favour of the plaintiffs, the suit undisputedly is beyond the territorial jurisdiction of the Court below. In this connection the difference between the absence of jurisdiction and the error in exercise of it has to be kept in mind, since the existence of jurisdiction is very different from the exercise of jurisdiction. When there is jurisdiction over the person and the subject matter, a decision of all other questions in the cause is only an exercise of that jurisdiction. The question, however, is not res integra and has fallen for consideration in various High Courts. No decision, however, of our own High Court was brought to our notice. Mr. Jagdish Pandey placed reliance on a decision of the Calcutta High Court in. Subodh Kumar Chatterjee v. Union of India (AIR 1960 Cal 540), but that was a case of a plaint filed in the Court on its extraordinary original civil jurisdiction and the learned single Judge took the view that amendment of a plaint even in such a case can be allowed because the provisions of Order 7, Rules 10 and 11 were not applicable to a chartered High Court. In that view of the matter amendment of the plaint showing that Court had jurisdiction could be allowed. All the decisions taking a contrary view, of the various High Courts, were distinguished by the learned Judge on this ground alone. It is, therefore, obvious that the authority of the Calcutta High Court has got no application to the facts of the present case. In this connection I may in the first instance refer to two cases of the same High Court.-- (1) Mst. Zohra Khatoon v. Janab Mohammad Jane Alam (AIR 1978 Cal 133) and (2) Ratan Chand Khanna v. Mahendra Kumar (AIR 1979 Cal 55), where a contrary view was taken. Similar is the view of the Allahabad High Court in the case of Tirkha v. Ghasi Ram (AIR 1935 All 842) and of the Nagpur High Court in Lalji Ranchhoddas v. Narottam Ranchhoddas (AIR 1953 Nag 273). Both these cases, however, related to pecuniary jurisdiction of the Court, but the principle remains the same. A learned single Judge of the Assam High Court in the case of H. C. Khan v. Purni Agarwalani (AIR 1953 Assam 102) also took a similar view as in the aforesaid two cases. Similar is the view of the Madras High Court in Varry Mutyalamma v. Dasary Narayanaswamy (AIR 1949 Mad 719).