Devichand Ratanchand Solanki vs Premshankar

B.P. Saraf, J.—Both these applications are directed against the impugned other dated 3rd march 1989 of the Civil Judge, Senior Division, Thane, allowing the applications of the respondent for amendment of the plaint and the written statement.

The petitioners are defendants in RCS No. 1294 of 1982 filed by the respondent for permanent and mandatory injunction. Special Civil Suit No. 235 of 1983 was filed by the petitioners for possession and compensation and also injunction. The respondent herein is the defendant in the above suit. The respondent had filed his written statement in the above suit. Later, the respondent herein filed applications for amendment of the plaint and the written statement respectively in the above cases on the ground that the leave and licence agreement was in fact an agreement of tenancy and, as such, he was a tenant of the suit land and not a licensee as stated by him the plaint in the former case and in the written statement in the latter case. He, therefore, wanted the permission of the Court to amend the plaint and the written statement respectively in the two cases by substituting the words "tenant and tenancy" in place of the words "licensee and licence". His applications for amendment were opposed by the opposite party in both the cases on the ground that the proposed amendment would completely change the nature of the suit and that it was not bona fide. On consideration of the rival submissions of the parties, the trial court was satisfied that it was a fit case for allowing the proposed amendments in exercise of powers under Order 6 Rule 17 of the CPC (CPC) and allowed the same. He directed the applicant (the respondent herein) to carry out the amendment in the plaint and the written statement within 10 days. It was made clear that on the failure to do so, the application for amendment would stand rejected. Cost of Rs. 500/ - was also allowed to the other side in each of the two cases.

Learned Counsel for the petitioners has challenged the above orders on the ground that the proposed amendment would have the effect of ousting the jurisdiction of the court. In other words, his submission is that if the amendment is carried out, the trial court, Civil Judge, Senior Division, will have no power to proceed with the suit. Civil Judge, Junior Division will be the appropriate Court for the purpose. Counsel submits that such amendments cannot be allowed. In support of this submission, reliance is placed on a Division Bench decision of this Court in Benisham Mohanlal Khetan Vs. Mahadeo Tukaram Borkar, .

I have carefully considered the submission of the counsel for the petitioners and perused the Division Bench decision of this Court referred to above. I, however, find it difficult to accept the submission of the counsel for the petitioners. I am of the opinion that in the facts and circumstances of the case, the trial court was justified in allowing the amendments in exercise of its powers under Order 6, Rule 17 of the Civil Procedure Code. No grievance can be made on the ground that the amendment, when carried out, might have the effect of ousting its own jurisdiction. Even if that be so, the court is not precluded from allowing the amendment if it is satisfied that it should be allowed. As observed by this Court in Benisham''s case (supra) a civil court under Order 6, Rule 17 can allow the plaint to be so amended as to result in ousting its own jurisdiction in the matter, and case the amendment is allowed and carried out, the proper course to be followed is to return the amendment plaint to the plaintiff for presentation to the proper court under Order 7, Rule 10, Civil Procedure Code.

Thus it is only after the amendment is allowed and carried out that objection in regard to the jurisdiction of that court can be raised and if the court is satisfied in regard to the ouster of its jurisdiction, it would return the amended plaint to the plaintiff for presentation to the proper court under Order 7, Rule 10 of the Civil Procedure Code. That stage has not yet arrived in the present case. The petitioners have challenged the order of the court which only allows the amendments and directs the party to carry out the same. There is no infirmity in the said order. It is fully within the scope and ambit of the powers of the court under Order 6, Rule 17 of the Civil Procedure Code. In that view of the matter I do not find any reason to interfere with the said order. If any of the parties wants to raise any objection in regard to the jurisdiction of the court concerned to proceed with the case in view of the amendment plaint or the written statement, it has to make an application before that court in that behalf and in that event it would be for that court to dispose of the same in accordance with law. Such an objection cannot affect the power of the court to allow amendment of the pleadings. The Court has ample jurisdiction to pass suitable orders on the application for amendment of the pleadings-and in case the amendment is allowed and carried out, the proper course to be followed is to return the amended plaint to the plaintiff for presentation to the proper court under Order 7, Rule 10 of the Civil Procedure Code. As observed by the Division Bench of this Court in Benisham''s case (supra):

Only other courses open for being adopted in such matter is either to return the plaint alongwith the amended application to be presented to the proper Court or to reject the application outright. Former alternative has the potentiality of creating unnecessary complications and shuttling a litigant from one Court to other. What happens when the amendment is not allowed by the Court to whom matter is presented? The later alternative has the potentiality of leading to grave injustice. The amendment application may be meritorious but has to be rejected only because if results in ousting the jurisdiction of the Court.

This leads us to examination of the possible objections to the grant of such application. Return of plaint for presentation to proper Court is governed by Order 7, Rule 10, Civil Procedure Code. Till that stage arrives, Court having jurisdiction over the suit as originally presented is empowered to deal with it as per Orders 4, 5 and 6, CPC respectively relating to institution, issuing and service of summons and pleadings. We fail to see as to how exception could be made only with relation to a particular amendment by virtue of the only consideration that if allowed it may result in the ouster of jurisdiction of the Court allowing it. The full plaint (as amended) alone can indicate the jurisdiction. Unless the stage of amendment becoming effective is reached, it would be plainly premature to exercise powers under Order 7, Rule 10, Civil Procedure Code. It is plain that initial jurisdiction inheres until something supervenes which ousts it. Amendment may relate back to the presentation of claim but that aspect cannot have any impact on the question.

The above decision is a clear authority for the proposition that a civil court can even allow the pleadings to be so amended as to result in ousting its own jurisdiction. It is only after the amendment is allowed and carried out that the question of jurisdiction can be raised and if on consideration of the amended pleadings, the court is satisfied in regard to the ouster of its jurisdiction, it would return the amended plaint to the plaintiff for presentation to the proper court under Order 7, Rule 10, Civil Procedure Code. It is premature to raise the objection in regard to jurisdiction on the basis of the proposed amendment. Such objection can be properly raised only on the basis of the amended pleadings after the amendment is allowed and carried out.

For the reasons set out above, I do not find any merit in these revision applications. I, therefore, dismiss the same. Under the facts and circumstances of the case, I make no order as to costs. Certified copy expedited.