W.P.No.7785/2010
Avinash Pandey and another Doman Singh and others.
25.8.2010
Shri P.C.Paliwal, counsel for the petitioners.
Shri Umesh Trivedi, Counsel for respondents.
This petition is directed against an order dated 25.3.2010
by the Civil Judge Class-2, Waraseoni, Dist. Balaghat in Civil Suit
No.35-A/2009 by which the trial Court rejected an application filed
by the petitioners seeking amendment in the plaint on the ground
that it will change the nature of the suit and after allowing the
amendment, the suit will be beyond the pecuniary jurisdiction of
the trial Court..
The learned counsel appearing for the petitioners
submitted that claim of damages was raised because of
subsequent events occurred in the case. The defendants took the
crops of the petitioners and for recovery of the price of such
crops,the plaint was sought to be amended, but the trial Court
erred in rejecting the application filed by the petitioners. It is
submitted that the aforesaid cause of action arose after filing of
the suit and the amendment was necessary for the just decision
of the case.
The learned counsel for the respondents submitted that
after allowing the amendment, the trial Court would not have
pecuniary jurisdiction. In such exigency, the recourse available to
the trial Court was to return the plaint along the amendment
application. Reliance is placed to a Division Bench judgment of
Nagpur High Court in Lalji Banchhoddas vs. Narottam
Ranchhoddas :AIR 1953 Nagpur 273 and two Single Bench
judgments of this Court in Indori Lal Vs. Indore Municipal
Corporation in C.R.No.538/72 decided on 1.10.1975 reported in
1976 MPLJ SN 5 and another judgment of Single Bench in
Trilokchand vs. Jabbar Khan 1967 MPLJ SN 78 and submitted
that the recourse available to the trial Court was to return the
plaint along with application for filing it before the competent court
W.P.No.7785/2010
Avinash Pandey and another Doman Singh and others.
of jurisdiction and submitted that he has no objection if the plaint
along with application seeking amendment is returned to the
petitioners so that they may file it before the competent Court of
jurisdiction.
The Division Bench of Nagpur High Court considered this
question and held in para 5 of the judgment thus:
“(5) The second leg of the difficulty is clearly
brought into relief when we view the matter from
another angle. When the Court is faced with the
question of allowing an amendment which taken
together with the original claim exceeds its pecuniary
jurisdiction, it is in effect trying a suit beyond its
pecuniary jurisdiction. By adding the new relief which
the plaintiff claims, the Court in effect amends the
plaint as presented, because it is also well settled that
all amendments relate back to the presentation of the
plaint. This clears the difficulty because the Court is
thereby rendered incompetent to entertain the claim
for amendment at all. In such a situation, because the
plaintiff cannot ask for the return of the plaint, nor can
the Court cause the amendment, the logical
procedure to follow would be to return the plaint
together with the application for amendment for the
consideration of that Court which has jurisdiction to
consider the original claim and the claim sought by
the amendment not taken separately but together.”
The similar view was reiterated by the two Single Bench
judgments in Indori Lal and Trilokchand (supra).
In view of the aforesaid, the prayer made in this petition is
allowed. The impugned order is hereby set aside and the
followings directions are issued:
(1) The trial Court shall return the plaint along with the
application filed by the plaintiffs for its presentation before
the Court of competent pecuniary jurisdiction.
(2) The plaintiffs on receipt of plaint along with
application shall present along with application before the
competent court of jurisdiction within a period as may be
fixed by the trial Court in this regard.
W.P.No.7785/2010
Avinash Pandey and another Doman Singh and others.
(3) The trial Court may follow the procedure envisaged
under Order 7 Rule 10, C.P.C in this regard.
No order as to costs.
Certified copy as per Rules.
(Krishn Kumar Lahoti) (S.C.Sinho)
Judge Judge
JLL