P VARADA PILLAI Vs. PVTHILLAI GOVINDARAJA PILLAI

JUDGEMENT

(1.) C.R.P. No. 1771 of 1928 - The facts out of which this Civil Revision Petition arises may be stated as follows. The suit was filed in the District Munsif's Court of Poonamallee. An objection was taken by the defendant that the suit as framed did not lie in the District Munsif's Court. The District Munsif decided against the objection. On a revision petition filed in the High Court, my brother, Jackson, J., held in C.R.P. No. 1263 of 1927, that the objection was well founded and the suit as framed did not lie before the District Munsif. He observed in the course of his judgment that the plaintiff might try his chance at amendment in the Lower Court. When the case went back to the District Munsif the plaintiff applied for amendment of the plaint, he undertaking to amend the plaint in such a way as to make it cognizable by the District Munsif. The District Munsif rejected this application. He passed an order on the plaint returning it to be presented to the proper Court, and the plaintiff got the plaint into his own hands. He amended the plaint himself by striking off one relief and represented it before the District Munsif alleging that after the changes he had made it would lie before the District Munsif. The District Munsif now held in his favour though the defendant took the objection that the plaintiff was not entitled to amend the plaint and re-present it in the same Court. The defendant presents this revision petition against the order of the District Munsif.

(2.) The learned advocate for the petitioner contends that the effect of the order returning the plaint to be presented to the proper Court is that unless he presents it to the Court which is the proper Court for the original plaint the Court-fees cannot be any more utilised, that if the plaintiff makes further changes in his plaint it is practically a fresh plaint and if the plaintiff wants to file such a fresh plaint he may do so on payment of fresh Court-fees and the old Court-fees cannot be utilised for filing the plaint with alterations before the original Court. The District Munsif relied on Karumbayira Pornapundan V/s. Authimoola Ponnapundan (1909) I.L.R. 33 M. 262 for holding thai the plaint will lie in the circumstances. I think the decision of the District Munsif is right. In Karumbayira Ponnapundan V/s. Authimoola Ponnapundan (1909) I.L.R. 33 M. 262 the order was: "The plaint should be returned to the proper Court after valuation had been corrected." In that case the valuation had been improperly made. If it was properly made the suit will lie in a different Court. The plaintiff after taking back the plaint struck off some of the prqperties and re-presented it before the District Munsif, who admitted it. It was held by Abdur Rahim, J., that the order is right. At the end of the judgment he observed : "I do not think that when an amendment is made by the plaintiff and sanctioned by the Court, it can be said that the Court had no power to allow or accept the amendment. As will be seen from other cases which will be presently referred to even this condition does not seem to be necessary. It seems to me that in all such cases the plaintiff having got the plaint into his own hands can make such alterations in the plaint as he pleases so as to make the case cognizable by the same Court and re-present it. There is no question of the Court allowing or accepting the amendment. If, after amendment, the plaint lies before that Court, the Court is bound to accept it. On Letters Patent Appeal the order of Abdur Rahim, J., was confirmed by Benson and Sundara Aiyar, JJ. This case was relied on in Kannusami Filial V/s. Jagathambal (1918) I.L.R. 41 M. 701 at 708 : 35 M.L.J. 27 and the learned Judges held that once a Court holds that it has no jurisdiction over a suit, it ought not to permit an amendment and Sadasiva Aiyar, J., distinguished the decision in Karumbayira Ponna-pundan V/s. Authimoola Ponnapundan (1909) I.L.R. 33 M. 262. This decision shows that there is no question of a Court directing an amendment or allowing the amendment or accepting the amendment. The Court has no business to deal with the amendment. It is the party that makes the alterations and presents the plaint. The point came up again in Ramachandrayya V/s. Venkataratnam (1925) 22 L.W. 582. Odgers, J., after some hesitation found that the two decisions in Karumbayira Ponnapundan V/s. Authimoola Ponnapundun (1909) I.L.R. 33 M. 262 and Kannusami Pillai V/s. Jagathambal (1918) I.L.R. 41 M. 701 at 708 : 35 M.L.J. 27 are reconcilable and I agree with him that they are reconcilable. The point again came up before Devadoss, J., in Manikyam. V/s. Sreeramulu . He there pointed out that the proper course for the Court to take is not to direct amendments so as to make the suit cognizable but to return the plaint leaving the party to make the amendment. All these cases show that the course pursued by the District Munsif is right. Two decisions are referred to by the learned Advocate for the petitioner. One is Muthu alias Gurusami Nayaken V/s. Muthu Nayaken (1927) 54 M.L.J. (N.R.C.) 12 and the other case Govindaraju Naicker V/s. Kassim Sahib (1927) 54 M.L.J. 409 is in the same volume, page 409. But these are cases where the Court granted an amendment after holding that it had no jurisdiction. It was held that the order was improper. These are like Kannusami Pillai V/s. Jagathambal (1918) I.L.R. 41 M. 701 at 708 : 35 M.L.J. 27. I think that the Lower Court's order is right. The petition fails and is dismissed with costs.

(3.) C.R. P. No. 110 of 1929. - In this case after the order of the District Munsif in the other revision petition was passed the defendant still objected that the Court- fee paid is not a proper Court-fee. He repeated his objection that the old Court-fee should not be utilised. The latter objection is really covered by the judgment in the former case. As to the former objection as to what the proper amount of Court-fee is, the District Munsif found that the. Court-fee paid was right and I may observe that the objection to Court-fee did not also lead to any objection as to jurisdiction. That being the case I am at present content to follow the decision in Muhammad Ellaiyas V/s. Rahima Bee (1928) 56 M.L.J. 302. This revision is dismissed with costs. Pleader's fees Rs. 10 and all other costs.