P I GOVINDARAJA NAICKER Vs. KKASSIM SAHIB

JUDGEMENT

(1.) This is an application for leave to amend the plaint and it raises the question whether I can grant an amendment in a suit which I have no jurisdiction to try. The facts are briefly these. The plaintiff purchased from the 1 and 4 defendants, 7500 trees in a garden situated at Tiruvottiyur beyond the limits of the city of Madras. That garden along with some properties in the city, had been, previously mortgaged by those defendants to defendants Nos. 2 and 3 under two deeds of mortgage, the first of 1917 and the second of 1920.

(2.) The plaintiff, as the purchaser of the trees, alleging a right to redeem, filed the present suit, inter alia, for redemption of the Tiruvottiyur garden (land as well as trees), on payment of Rs. 5,000 a part of the mortgage amount secured by the second mortgage.

(3.) In regard to this relief, the plaintiff's case was, that although the first of the mortgages was for Rs. 19,000 and the second was for Rs. 14,500 there was a clause in the second deed, which empowered him to redeem the mofussil property alone, on payment of Rs. 5.000. Thus it will be seen, that the relief he claimed was, in respect of the property outside the city of Madras; but curiously enough the plaintiff under some mistake applied for leave to institute the suit in this Court and he seems to have obtained it. The leave was, of course, applied for and granted, on the footing, that some portion of the property covered by the suit was within the jurisdiction of this Court, It now turns out that he was mistaken and took a wholly wrong view of the situation. The plaintiff having realised his mistake has now asked me to allow him to amend his plaint. He seeks to amend it in this way. He desires, on payment of the whole amount due, to redeem all the properties comprised in the two mortgages--properties situated at Tiruvottiyur as well as at Madras. If this was the original frame of the suit, there could have been no objection on the ground of jurisdiction. The question is, can I now allow the plaint to be amended ? For the defendants, it is urged that the Court not having initially jurisdiction, no order can be made in such a suit, for, it is said, when a Court cannot try a case for want of jurisdiction, it stands to reason that in such a suit it can make no valid order. It seems to me that this contention is sound in principle, as it is logical to hold, that when the Court has no right to try the case itself, it cannot give directions in that very suit, which can be done only on the assumption, that the Court is lawfully seized of that action. Not only is this sound in principle but such authority, as I find, seems to support this view. In Mahalingam V/s. Natesa Aiyar 32 Ind. Cas. 423; 3 L. W. 107; (1916) 1 M. W. N. 146 Seshagiri Aiyar, J. was of this opinion, although as the case could be decided on another ground, Sir John Wallis, C. J. expressed no opinion on the point. In Kannusami Pilial V/s. Jagathambal 46 Ind. Cas. 265; 41 M. 701; (1918) M. W. N. 497; 24 M. L. T. 46; 8 L. W. 145; 35 M. L. J. 27 the point was discussed at some length by Sadasiva Aiyar, J., who takes this view, although Old field, J., was content to rest his judgment on another ground. The same point was again considered by Sadasiva Aiyar, J., in Govindaswami Kadavaran V/s. Kaliaperumal Munayathiriyan 66 Ind. Cas. 837; (1982) M. W. N. 83; 16 L. W. 155 and that learned Judge reiterated his previous view, although in the circumstances of that case, Coutts Trotter, J., (as he then was) was not disposed to agree with Sadasiva Aiyar, J. It was a case relating to reliefs under Section 92 of the Civil Procedure Code, which could not have been filed in a