Amulya Ratan Chowdhuri vs Ram Nalini Chakravartti

P.N. Mookerjee, J.—This Rule arises out of the Plaintiff''s application for amendment of the plaint. The plaint was originally valued at Rs. 8,584 and ad valorem com(Sic) was paid thereon, but thereafter, upon an enquiry (Sic) Section 8C of the Court-Fees Act, the court directed the Plaintiff to revise the valuation to Rs. 67,040 and put in the additional ad valorem court-fee upon the said valuation by July 16, 1952. Thereafter, upon the Plaintiff''s applications, made from time to time, the date for revising the valuation and paying the additional court-fee -was extended to August 25, 1952.

On August 18, 1952, the Plaintiff made the present application for amendment of the plaint and apparently, the position is that if the application for amendment be allowed, the valuation would be considerably reduced. The learned Subordinate Judge, however, has refused to consider the Plaintiff''s prayer for amendment of the plaint, as, in his opinion, the said prayer could not be considered until the Plaintiff had complied with the order of the court regarding revision of valuation and payment of additional court-fee. In this view of the matter, the learned Subordinate Judge has deferred consideration of the Plaintiff''s application for amendment of the plaint until the valuation is revised to Rs. 67,040 and proper court-fees are paid on this revised valuation. Against this order the present Rule is directed.

In support of the view taken by him the learned Subordinate Judge has referred to the decision of this Court in the case of Midnapur Zemindary Company Ltd. v. The Secretary of State for India I.LR. (1916) 44 Cal 352 : 21 C.W.N. 834. That case, however, has no application to the facts of the present case, as there the plaint had already been rightly rejected before the prayer for its amendment was made. In that case the plaint was rejected by the trial court for noon-payment of requisite court-fee upon the plaint valuation. There was an appeal to this Court from the said order of rejection and in the course of hearing of the appeal a prayer for amendment of the plaint was made. Their Lordships having found that the order of rejection of the plaint was right on the merits refused to entertain the prayer for amendment of the plaint. It seems to us that, in the case cited, the position was that there was in law no plaint before the court and, accordingly, the prayer for amendment could not be entertained. That appears to be the proper reading of the case. The decision, therefore, was perfectly correct but the case is distinguishable and cannot apply to the facts before us.

There is, however, another decision of this Court in the case of Mt. Saiyadunnessa Khatun and Others Vs. Gaibandha Loan Co. Ltd. and Others, , where, under circumstances, similar to the present, the application for amendment of the plaint was held entertainable and (Sic) considered on the merits and eventually allowed.

I (Sic) of this latter decision which, in our opinion applies to the facts of this case and lays down the law correctly, the Plaintiff''s prayer for amendment made before the learned Subordinate Judge, should be entertained and considered on the merits and if the same be allowed by the court upon such consideration in the exercise of its discretion, further orders would be passed by it in accordance with law.

On a reference to the two provisions of the Code, namely, Order VI, Rule 17 and Order VII, Rule 11, it seems to us that when a plaint is liable to be rejected but has not as yet been rejected by the court and, at that stage, that is, before such rejection, an application is made for amendment of the plaint, that application should not be thrown out in limine or its consideration postponed on the ground that as the plaint, as it stands, is liable to be rejected, no prayer for its amendment could be considered�not, at any rate, until the defect, entailing its rejection, as aforesaid, is removed. Upon such an application for amendment the real question that arises is not one of jurisdiction to entertain or consider the said application but one of propriety of allowing the same in the exercise of the court''s discretion.

A similar view was taken in the two Madras cases reported in (Wuppuluru) Neelachalam v. Narasinga Dass AIR (1931) (Mad.) 716 and also in Govindaraja Mudaliar v. T. Saravant Mudaliar AIR (1949) (1) 640 and also by the Bombay High Court in the case of Mahant Narsidasji Balmukunddasji Vs. Bai Jamna, where the earlier decision of: that Court reported in Valli Ise Amanji Vs. Mahmad Adam Asmal, �a case, much alike the case of Midnapore Zamindari Company Ltd. v. The Secretary of State for India Supra was rightly distinguished. It appears to us, however, that the dissent expressed by the learned Judges in the Bombay case Mahant Narsidasji Balmvkunddasji v. Bai Jamna Supra from the Calcutta case, last cited, was unnecessary inasmuch as, an already stated, this latter decision was quite correct on its Own facts and plainly distinguishable from cases like the present in which the said Bombay case was clearly one.

The same view of the law is also to be found in the more recent decision of the Bombay High Court reported in Gaganmal Ramchand Vs. The Hongkong and Shanghai Banking Corporation, and, in our opinion, Gentle, J., was not right the case of Sailesh Nath Bisi v. J. Chaudhuri (1945) 50 C.W.N. 540 in interpreting the decision of this Court reported in Midnapur Zemindary Company Ltd. v. Secretary of State for India Supra in the may he did and in holding on the authority thereof that the Court had no power to allow an amendment of a plaint which is liable, to rejection under Order VII, Rule 11 of the CPC oven where the prayer for amendment was made before such rejection.9. We hold, therefore, that in passing the order, complained of in this Rule, the learned Subordinate Judge has committed an error of jurisdiction and this Rule must succeed. The Rule is, accordingly, made absolute, the order of the learned Subordinate Judge deferring consideration of the petition for amendment of the plaint until the revision of valuation and payment of additional court-fees by the Plaintiff, as directed by him, is set aside and the learned Subordinate Judge is directed to consider the Plaintiff''s application for amendment of the plaint on the merits and to dispose of the same in accordance with law before passing any final order under Order VII, Rule 11 of the Code of Civil Procedure, if necessary.

There will be no order as to costs in this Rule.

Guha Ray, J.

I agree.