Sawan Singh vs Radha Kishan

R.S. Pathak, C.J.—This is a Defendant''s revision petition under paragraph 35 of the Himachal Pradesh (Courts) Order, 1948 against an order allowing an amendment of the plaint.

The Plaintiff-Respondent filed a suit for Rs. 20,360/-on the basis of a mortgage. He alleged that the Defendant Petitioner had purchased a truck from him and had also taken a loan of Rupees ten thousand for redeeming his land. He mortgaged the land and also pawned the truck with the Plaintiff for Rs. 27,000/- in terms of the mortgage deed. One of the terms was that the Defendant would pay the mortgage amount by monthly instalments of Rs. 1,540/-each and on default in payment of three instalments the Plaintiff would be entitled to recover the whole of the balance of the mortgage amount. The Plaintiff pleaded that the Defendant had not paid the instalments as agreed, and hence the suit for the recovery of Rs. 20,360/-representing the amount of the instalments which had been the subject of default.

The trial court framed issues in the suit and recorded evidence. Thereafter it was discovered that one issue had not been framed and on November 6, 1971, the trial court framed the issue and called for evidence thereon. At that stage the Plaintiff filed an application for amendment of the plaint in order to include relief in respect of the whole amount of Rs. 35,800/- which had fallen due on the mortgage.

The trial court has allowed the amendment, and now this revision petition.

Learned Counsel for the Defendant points out that on the date when the suit was filed before the trial court, the trial court had jurisdiction to entertain a suit upto a pecuniary value of Rs. 25,000/-. Subsequently, he says, the jurisdiction of the trial court was raised to Rs. 50,000/-prospectively. It is urged that if the amendment is allowed it would result in the value of the suit being raised to Rs. 35,800/- and as the amendment would date back to the date of institution of the suit it would result in the trial court having no jurisdiction to entertain the suit. It seems to me that even if the contention is accepted there is no reason why the amendment should not be allowed. The principle of law in such cases is that where a claim was originally within the jurisdiction of a court but falls outside it because of an amendment the court should allow the amendment and later return the plaint for presentation to the proper court. See Kundan Mal and Others Vs. Thikana Siryari and Others, Nanduld Bhavani Sankaram v. Saladi Mangamma and Ors. AIR 1949 Mad. 208 and B.C. Das Gupta and Anr. v. Bijoyranjan Rakshit and Ors. AIR 1953 Hyd. 212.

The second contention is that the amendment has been sought mala fide. This question has been considered by the trial court, and it has come to the conclusion that no mala fide is involved. I am not satisfied that the finding of the trial court is erroneous.

The third and last contention is that by allowing the amendment the trial court has permitted the Plaintiff to circumvent the bar raised by Order 2, Rule 2 of the Code of Civil Procedure. It is urged that having omitted to sue for Rs. 1 5,540/- the Plaintiff would not have been able to file another suit for that sum. There is no force in this contention. Order 2, Rule 2 bars a suit where a Plaintiff omits to sue in respect of, or intentionally relinquishes a portion of, his claim. In the case of an amendment of the plaint the amendment would date back to the date of institution of the suit and consequently no question can arise of the bar of Order 2 Rule 2 operating in such a case.

The power to permit amendment of a plaint is a power which lies in the discretion of the court, and unless the discretion is exercised perversely it is not for a superior court to interefere with it. In this case, I see no ground for interference.

The revision petition is dismissed with costs.