P.I. Govindaraju Naicker vs P. Kassim Sahib and Others

Venkatasubba Rao, J.—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 1 have no jurisdiction to try. The facts are briefly these. The plaintiff purchased from the 1st and 4th defendants, 7,500 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 2 and 3 under two deeds of mortgage, the first of 1917 and the second of 1920.

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.

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. Natesa Aiyar (1915) 3 LW 107, 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

Kannuswami v. Jagadambal ILR (1918) M 701 : 35 MLJ 27 the point was discussed at some length by Sadasiva Aiyar, J., who takes this view,

although Oldfield, J., was content to rest his judgment on another ground. The same point was again considered by Sadasiva Aiyar, J., in

Govindasami v. Kaliaperumal (1922) MWN 83, 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 u/s 92 of the Civil

Procedure Code, which could not have been filed in a District Munsif''s Court. The suit was however filed in such a Court and the reliefs

comprised not only those obnoxious to Section 92 but other reliefs as well. The plaintiff abandoned the reliefs that fell u/s 92 and the parties

entered into a compromise in regard to the other reliefs only; and the question arose, could the District Munsif give effect to that compromise? This

case is clearly distinguishable from the present, for, under Order 23, Rule 1, Civil Procedure Code, the plaintiff may, at any time, after the

institution of the suit, abandon a part of his claim. This is exactly what the plaintiff in that case did. The Court in such cases is not called on to give

any direction. It is left to the plaintiff''s option to abandon a part of his claim, and if he chooses to pursue that course, the Court cannot prevent him

from doing so. It is no concern of the Court at all and it is not called on to make any order. It is the act of the plaintiff and the plaintiff alone and the

Court takes no part in it. In such a case, therefore, it cannot be said that the Court is making any order, and this therefore does not contravene the

rule that the Court cannot make a valid order in a suit which it cannot try for want of jurisdiction. Although Coutts Trotter, J., did not in his

judgment refer to Order 23, Rule 1, Civil Procedure Code, his conclusion, if I may say so with great respect, is correct, in view of this provision

and the decision in that case does not bear on the point with which I am dealing. These are the only cases on the point; but there is also a section in

the Civil Procedure Code, which throws a great light on the question. Section 35 which deals with costs, after saying, that the Court shall have full

power to determine by whom or from what property and to what extent, costs are to be paid, adds significantly,

the fact that the court has no jurisdiction to try the suit shall hi no bar to the exercise of such powers

This clearly suggests that, but for that provision, the Court would have no power to make an order in a case over which it has no jurisdiction. I

have therefore come to the conclusion that the amendment cannot be allowed and the application is therefore dismissed. I am asked to make it

clear that I have dealt with no other point than that of jurisdiction. It also follows that the suit itself is incompetent and it stands dismissed with costs

of defendants 2 and 3 (one set).