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Judgment
G. Viswanatha Iyer, J.—The plaintiffs in a suit for partition are the revision petitioners. The suit was filed in 1969. Pending suit some of the
plaint schedule properties were acquired under the Land Acquisition Act for some public purpose. Thereafter the plaint was amended so as to
include a prayer for declaration of the plaintiffs'' right to a share in the compensation amount. Some of the defendants had filed a written statement
to the original plaint in which one of the contentions was that proper court-fee has not been paid for the plaint. But this contention was not pressed
for consideration either before or after the amendment of the plaint. Both parties let in evidence on the issues raised on the pleadings and the case
was posted for final hearing. One of the issues raised in the case was whether the court-fee paid is not sufficient. After the final hearing the learned
Munsiff entered a finding on this issue alone by holding that the valuation .for the purpose of court-fee and for the purpose of jurisdiction is not
correct and that the plaint if properly valued for purpose of jurisdiction will exceed the pecuniary jurisdiction of the Munsiff''s Court. Consequently
the lower court held that the plaint should be returned for presentation to the proper court having jurisdiction over the subject-matter. He did not
enter a finding as regards the exact court-fee payable on the valuation. Time to re-present the plaint in the proper court was fixed as one month.
Before the expiry of this period of one month the plaintiffs filed an application to amend the plaint by withdrawing the declared relief in respect of
the compensation amount awarded for some of the plaint properties acquired pending suit. This was rejected by the learned Munsiff stating that
after the earlier order directing return of the plaint for presentation to the proper court having jurisdiction over the subject-matter no plaint is there
to amend. This is objected to in this revision petition.
According to the learned counsel for the revision petitioner the view of the lower court that there is no plaint before that Court to amend after
the order for return of the plaint to the proper court having jurisdiction, is not correct. In support of his contention he referred to Order VII Rule 10
(2), C.P.C. which is in the following terms:--
Return of plaint.
(1) x x x x
(2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief
statement of the reasons for returning it.
and contended that since such an endorsement has not been made in the plaint by the Munsiff at the time when or before the amendment
application was filed the learned Munsiff is still in seisin of the plaint. He also referred to Explanation I to Section 14 of the Limitation Act and the
decision in Brij Mohandas Gokulchand Vs. Narsinghdas Manoharilal and Others, where it has been held that the civil proceeding can be deemed
to have ended only by the endorsement made as per Order VII Rule 10 (2), C.P.C. No doubt Rule 10 (2) of Order VII provides that the Judge
must endorse on the plaint the date of its presentation and return and the brief statement of the reasons for the return of it and this is a judicial act to
he performed by the Court. But the absence of such an endorsement is a mere irregularity and it cannot be said that the court is in seisin of the
plaint, after the order for return, to enable it to make any amendment in the plaint. Even if the suit is to be deemed pending until such an
endorsement, that is only for the purpose of calculating the period of exclusion u/s 14 of the Limitation Act. Once the plaint has been ordered to be
returned, there is nothing remaining to be done by the court except to make an endorsement and the omission in making such an endorsement is
only irregular and does not make the order for return ineffective or incomplete. An order for return is final so far as that court is concerned and
such an order is also appealable as an appealable order. In this case the learned Munsiff has passed an order directing the return of the plaint and
the time for re-presentation is also fixed. That effectively makes the court functus of ficio in all matters except for the limited purpose of making an
endorsement. Again the reasons for the re- turn as provided for in Rule 10 (2) of Order VII need not be on the back of the plaint itself. The order
for return containing the reasons serves the purpose of an endorsement as required u/s 10(2).
The learned counsel next submitted that even after the order for return is passed, the court can consider an application for amendment and in
support of this position he relied on the decisions of the Madras High Court in Ponnapundan v. Authimoola Ponnapundan ILR (1910) Mad 262
Kommareddi Ramachandrayya and Others Vs. Vodury Venkataratnam, and Chendrayya v. Seethanna (AIR 1939 Mad 397). In Ponnapundan v.
Authimoola Ponnapundan ILR (1910) Mad 262 there was an enquiry as to the value of the subject-matter and the suit was found undervalued and
so the plaint was returned for presentation to the proper court. The plaintiff amended his plaint by correcting the valuation and striking off some of
the properties so as to leave the case in the jurisdiction of the District Munsiff. The District Munsiff thereupon re-admitted the plaint and the
question for decision was whether this was right. In the Letters Patent appeal the court held that he has the power. This is followed in the other
cases referred to. But there is a line of cases which takes the view that once the Court finds that it has no jurisdiction over a suit it cannot pass any
valid order in such a suit except the orders which the statute expressly empowers to pass such as the order to return the plaint to be presented to
the proper court and orders as to costs -- See Kannuswami Pillai v. Jagathambal AIR 1919 Mad 1071 . After the order for return of the plaint if
any amendment is made by the plaintiff in the plaint and re-presents it, it is really a fresh plaint which the court has always power to receive. This is
different from saying that a court which has held that it has no jurisdiction over the the suit can thereafter amend it so as to make it a suit within its
jurisdiction. This is also the view taken in the Single Bench decision of the Bombay High Court in Shobha Venkat Rao Vs. K.R. Mahale, . The
principle is stated thus at page 372, para. 7:--
As long as the Court has not given a finding that it had no jurisdiction and the plaint should be returned for presentation to the proper court it is
seized of the matter because the Court has the right to decide the question of its own jurisdiction even if the decision ultimately be that it has no
jurisdiction. As long as the Court is seized of the matter, it is open to a party at any time to abandon a part of the claim by a unilateral act by
making a statement to that effect which the Court must record, if thereafter the suit is within its jurisdiction, the Court should proceed to hear it.
I respectfully agree with this principle and I hold that the court has no power to order an amendment of the plaint after it has passed an order
directing return of the plaint for presentation to the proper court having jurisdiction.
In the result I do not find any reason to interfere with the order passed by the learned Munsiff. The Civil Revision Petition is dismissed, but in the
circumstances I make no order as to costs.