The Province of Madras vs R.B. Poddar

Govinda Menon, J.—An application to amend the plaint in O.S. No. 67 of 1945 on the file of the Sub-Court of Madura by the addition of a

paragraph 19-A, to the original plaint has been allowed by the learned Subordinate Judge and the Provincial Government represented by the

Collector of Madura seeks to revise that order on- the ground that as the amendment introduces a new cause of action, it cannot be allowed

without the imperative pre-requisite of a notice u/s 80 of the Code of Civil Procedure.

The suit as originally framed was for a declaration that the acquisition by the Government, of certain ground and premises belonging to the

plaintiff and set forth in the schedule to the plaint was illegal, mala fide, unreasonable, ultra vires and without jurisdiction and for granting a

permanent injunction restraining the defendant (Provincial Government) from proceeding with the said acquisition or from taking possession of the

said property. Pending the suit, an application was made to amend the plaint by the addition of the new paragraph to the effect that since the

Madura Ramnad Central Co-operative Bank, Ltd., for the use of which the original acquisition had been intended had ceased to. exist as an entity

on account of its dissolution there was no further necessity for the acquisition at all and therefore the defendant, should not take any further step in

relation to this acquisition.

The learned Subordinate Judge found that even though the proposed amendment would introduce an additional cause of action, as it would, if

decided in favour of the plaintiff, terminate to the litigation, such a prayer should be allowed in order to avoid multiplicity of suits. The learned Judge

relied upon the decision in Ezra v. Secretary of State I.L.R.(1902) Cal. 36 for the proposition that where an amendment of plaint is. necessitated

by the discovery of facts previously unknown to the plaintiff and the relief asked for in the plaint is not altered by the amendment, a further notice

u/s 80 of the CPC was not necessary and since the lower Court is entitled to take notice of subsequent events, it was bound to allow the

amendment

The learned Government Pleader contends that since the proposed amendment introduces a new cause of action, the Court has no jurisdiction

to allow the amendment because a previous notice as contemplated by Section 80 of the CPC stating the cause of action has not been given by the

plaintiff. The question, therefore, is whether the learned Judge acted with material irregularity in the exercise of his jurisdiction in allowing the

amendment. The suit as originally framed was based upon the action of the Government which according to the plaintiff was mala fide, illegal and

ultra vires. The plaintiff now says that during the course of the suit, it has come to his knowledge that the purpose for which the acquisition was

intended to be made has ceased to exist and therefore there is no necessity at all for such. acquisition. The subsequent facts certainly introduce a

new cause of action which is inconsistent with the original one. Thus, I have no hesitation in holding that a fresh cause of action is introduced into

the suit by means of this amendment....

If there were a suit between two parties where the compelling necessity of a notice u/s 80 of the CPC did not exist, probably an amendment like

this if allowed in its discretion by a lower Court would not be interfered by this Court. But in this case, Section 80 is an insuperable bar Notice

stating the cause of action has to be given to the Government and a suit can be filed only 60 days thereafter. Admittedly no such notice is given. In

Bhagchand Dagdusa v. Secretary of State (1927) 53 M.L.J. 81 : ILR 51 Bom. 725 (P.C.) the Privy Council has laid down that Section 80 has to

be strictly complied with and is applicable to all causes of action and all kinds of reliefs. In The Government of the Province of Madras v. At. Ar.

Rm. Vellayan Chettiar (1944) 2 M.L.J. 65 this Court has held that Section 80 of the CPC is explicit and mandatory. Where the section has not

been complied with, a Court has no jurisdiction to try the action instituted against the Government. There can be no question of waiver and no

question of estoppel. Even where the Central Government succeeded to the ownership of a railway company against whom, after proper notice

under the Indian Railways Act, a suit had been filed and where the succession was pending the suit, it was held that the suit is not maintainable

against the Government representing the railway company without fresh notice u/s 80--see The Governor-General of India in Council Vs. U.

Raghunandan Shenoy, . In a very recent decision in Al. Ar. Rm. Vellayan Chettiar v. The Government of the Province of Madras (1947) 2 M.L.J.

208 Lord Simonds in delivering the judgment of their Lordships of the Judicial Committee has re-affirmed the imperative words of a notice u/s 80.

It is contended by Mr. V.V. Srinivasa Aiyangar on the authority of Ezra v. Secretary of State I.L.R.(1902) Cal. 36 that the subject-matter of

the amendment came into existence during the pendency of the suit and therefore no fresh notice was necessary. Having carefully perused that

decision I do not consider that it goes to that extent. The learned Judges there made it clear that what was sought to be added by the amendment

was only to embody certain further materials in support of the plaintiff''s contention. It is not a case where the amendment sought for introduced a

new cause of action. A more instructive case is Manindra Chandra Nandi v. Secretary of State for India I.L.R.(1907) Cal. 257 where Sir

Ashutosh Mukherjee, J., observes that where a new cause of action is sought to be introduced in addition to a cause of action specified in the

plaint against the Government, notice u/s 80 is a pre-requisite. To the same effect is a decision in Mcinerny v. Secretary of State for India I.L.R.

(1911) Gal. 797. As I am of opinion that the amendment now allowed has introduced a fresh cause of action which was out-side the scope of the

suit as originally framed and was inconsistent with the allegation made earlier, the learned Sub-Judge was not justified in allowing the amendment

now, as ex concesis no previous notice has been served on the Government informing them of this new cause of action.

Mr. V.V. Srinivasa Aiyangar next urges that even if I am of opinion that the amendment was wrongly allowed, still, I have no power to interfere

as the lower Court had jurisdiction to act as it did. The trend of modern authority in our Court is to the effect that where a lower Court has acted

with material irregularity in the exercise of jurisdiction, this Court has the power to interfere in revision and set right the matter. In this connection

reference may be made to Chinta Chandramma v. Gunna Sethan Naidu (1930) 61 M.L.J. 316. Ibramsa Rowther v. Mohamad Esuf Rowther

(1929) 30 L.W. 557. Sundarammal v. Ameenlal (1926) 98 I.C. 867 which are all instances where the lower Court wrongly allowed an

amendment and the High Court set it aside in revision. Recently my learned brother Rajamannar, J., in V.T. Elaya Pillai Vs. Ramasami Jadaya

Goundan, has allowed a civil revision petition where the lower Court wrongly amended the plaint. Therefore, the contention of Mr. V.V. Srinivasa

Aiyangar that this Court has no power to interfere where it is convinced that the order of the lower Court was irregular in the exercise of its

jurisdiction is unsupported by any recent ruling of this Court.

In this view, I set aside the order of the learned Subordinate Judge and direct that I.A. No. 1041 of 1945 be dismissed with costs throughout.

The respondents if so advised, may apply to the lower Court for the refund of any additional court-fee paid by him as a result of the amendment

and the lower Court will direct the refund.