1. This is an appeal against an order of G.K. Mitter, J.
allowing certain amendments of the plaint and granting fresh leave under Clause 12 of the Letters Patent in respect of such amendments.
2. The plaintiff respondent which is a registered partnership firm carrying on business at 195, Old China Bazar Street, Calcutta, filed a suit in this Court on or about the 15th December 1959 against the appellants Daulatram Agarwalla and Shankarlal Agarwalla describing the former as the Karta or Manager of a joint Hindu Mitakshara family consisting of himself and his sons Shankarlal and Shambhu Prosad and as carrying on a Joint family business under the name and style of Shanharlal Shambhu Prosad, along wiw Shankarlal Agarwalla, at Katihar and also at Labha, in the District of Purnea in the State of Bihar, for recovery of a sum of Rs. 74,612.89 nP. In respect of certain commission agency dealings and transactions. In the plaint as originally filed the case made was that in or about the year 1952 the defendants in their said business of Shankarlal Shambhu Prosad appointed the plaintiff firm as their Commission Agents for the sale of raw jute at certain terms and conditions set out in the plaint. Thereafter pursuant to such terms and conditions the plaintiff firm acted as the Commission Agent of the defendants. The accounts in respect of the dealings and transactions had between the parties
were adjusted from time to time and on or about the 15th June 1959, a sum of Rs. 38,344.48 nP. was found due and owing by the defendants to the plaintiff firm, but later on it was discovered that there was a slight error in the account and the amount actually due was Rs. 33,334.68 np. There were further dealings and transactions between the parties after that date and as a result of such further dealings and transactions a sum of Rs. 78,646.41 nP. became due from the defendants to the plaintiff. But after giving credit of a sum of Rs. 5900.09 nP. which was payable by the plaintiff firm to the defendants in respect of the sale proceeds of a consignment of jute sent from Labha station to Cossipore Railway Station, the sum that remained due from the defendants to the plaintiff was Rs. 66, 280.30 nP. and adding to that a sum of Rs. 8,232.50 nP. being the amount of interest due at the stipulated rate, the total amount that remained payable to the plaintiff was Rs. 74,512.89 nP. Accordingly the claim of the plaintiff was laid at this figure in the original plaint. It is to be noted that the suit was filed after obtaining leave under Clause 12 of the Letters Patent.
3. On cr about 7th December, 1950 the plaintiff firm look out a summons for amendment of the plaint. The material amendments asked for were as follows:
4. In the cause title of the plaint Daulatram Agarwalla was described as Karta or Manager of a joint Hindu Mitakshara family consisting of himself and his sons Shankarlal and Shambhu Prosad and/or his grandson and other coparceners, if any, of the said joint family. So the words “and/or his grandson …… family” were added
by this amendment. Then in paragraph 2 of the plaint it was stated that in 1952 the defendants appointed the then registered partnership firm of Champalal Jugraj as then constituted and consisting of four partners, Champalal Bhutoria, Labhuram Patwari, Pratapmull Patwari and Bhimraj Patwari as their commission agents. Certain alterations as to the terms as set out in Clause (d) and Clause e(i) in paragraph 2 were also made. In Paragraph 3 (a) of the plaint it was stated that the firm which was appointed the Commission Agent acted as such till 11th April, 1954 on which date three partners namely Labhuram Patwari, Pratapmull Patwari and Bhimraj Patwari, retired from the said firm and all their rights, liabilities, assets, credits and benefits of all contracts which accrued or were to accrue end the goodwill of the firm, were assigned by the retiring partners in favour of Champalal Bhutoria by a deed dated the 6th May, 1954. In paragraph 3 (b) it was stated that the defendants had knowledge and notice of the retirement of three partners and about the assignment, and the dealings and transactions continued between the defendants and Champalal Bhutoria until 11th June, 1954. In paragraph 3 (c) it was stated that on or about 11th June 1954 a deed of partnership was executed whereby Champalal Bhutoria took in two partners, namely, Bejoy Singh Bhutoria and Sumermull Bhutoria in the said business as a going concern and the plaintiff firm was constituted and registered with the Registrar of firms and all the rights of Champalal Bhutoria including the rights, liabilities etc. which he acquired by reason of the deed of 6th May, 1954 were assigned and became vested in the partners of the plaintiff firm as constituted on the 11th June, 1954. in paragraph 3 (d) it was stated that the defendants had full knowledge and notice of the aforesaid facts, and the Commission Agency business was by concurrence of the defendants and the plaintiff firm as newly constituted, carried on, according to the terms and conditions mentioned in paragraph 2 of the plaint. In paragraph 3 (e) an agreement accepting all the dealings and
transactions had since 1952, is pleaded, and in paragraph 3 (f) the dealings and transactions had pursuant to such agreement as pleaded in paragraphs 3 (d) and 3 (e) are pleaded. In paragraph 11 of the plaint it is pleaded that since the institution of the suit the plaintiff firm had realised the sale proceeds in respect of 180 bales of jute and a sum of Rs. 12,267.62 nP. was payable by the plaintiff to the defendant and so after giving credit for this amount, the amount that would still remain payable by the defendants to the plaintiff was the sum of Rs. 62,245.27 nP.
5. It will thus appear that by making certain alterations in paragraph 3 of the original plaint and by introducing paragraphs 3 (a) 3 (b), 3 (c), 3 (d), 3 (e) and 3 (f) some substantial amendments were made in the cause of action as originally pleaded in the plaint. It may be pointed out at this stage that this application for amendment was made inasmuch as the defendants in their written statement filed in answer to the original plaint, took up the defence that there was no agreement appointing the plaintiff firm which filed the suit as commission agent as pleaded in the plaint, but the defendants had appointed a firm in which Champalal Bhutoria and the three Patwaris were partners. A further point was taken in the written statement that besides the persons whose names are mentioned in the original plaint, there were other members of the joint family of the defendants who were not mads parties to the suit and so the suit was bad for non-joinder of parties. The application for amendment having come up for hearing before G.K. Mitter, J., the learned Judge by his order dated the 28th March 1961 granted fresh leave under Clause 12 of the Letters Patent in respect of the amendments asked for and allowed all the amendments that had been asked for in respect of the plaint. The defendants have thereupon preferred the present appeal against the said order of the learned Judge and have contended before us that the amendments asked for introduced a totally different cause of action and so should not have been allowed and further the Court had no power to grant fresh leave under Clause 12 of the Letters Patent to allow any amendment of a plaint which added to or altered the cause of action as pleaded in the original plaint and in respect of which leave under Clause 12 of the Letters Patent had been obtained prior to the institution of the suit. According to the learned counsel for the appellants leave under Clause 12 of the Letters Patent is a condition precedent to the institution of a suit and it can be given only once by the Court in respect of a suit at the time of its institution.
6. The attention of the Court has been drawn by the learned counsel for the appellants to decisions of the different High Courts which have a bearing on this point. The first decision to which reference was made is the casa of Rampurtab Samruthroy v. Premsukh Chandamal, ILR 15 Bom 93. In this case Teiang, J. after referring to certain decisions of the Calcutta, Madras and Bombay High Courts made the following observations:
“From all these authorities it seems to me to result that the grant of leave under Clause 12 of the Letters Patent is a judicial act which must be held to relate only to the cause of action disclosed in the plaint as presented to the Court at the time of the grant; that such leave which affords the very foundation of the jurisdiction is not available to confer jurisdiction in respect of a substantially different cause of action which was not judicially considered at the time it was granted; that in respect of such a different cause of action leave under Clause 12 cannot be granted after the institution of the suit; and that therefore the Court cannot try such a different cause of action
except in another suit duly instituted. It follows from this consideration that any amendment such as Mr. Kirkpatrick proposes to make in the plaint cannot be of any avail …..
….. In the course ol the argument, I did, indeed,
suggest that the Court might perhaps consider itself seized of the case by virtue of the leave when once granted and that being so seized of the case it might then proceed to deal with any application for amendment as in a case under the ordinary jurisdiction. But in view of the authorities above referred to as to the nature of the order under Clause 12 and having regard to the fact that the point is one relating, not to procedure, but to Jurisdiction, it appears to me that that suggestion cannot be maintained.
7. After making these observations the learned Juage proceeded to consider the nature of the cause of action as pleaded in the original plaint and the nature of the amendment asked for and recorded the following conclusion at page 103:
“I must therefore hold that in this case which is governed by Clause 12 of the Letters Patent, the leave of the Court was necessary under that clause to give the Court jurisdiction; that the jurisdiction so conferred was confined to the cause of action disclosed in the plaint as originally framed; and that the Court cannot now allow an amendment which shall substantially alter that cause of action. In this view it becomes unnecessary to consider whether the cause of action intended to be introduced into the suit by amendment would itself be one over which this Court could exercise jurisdiction without leave granted under Clause 12.”
8. In this case the plaintiffs who resided at Indore and carried on business in Bombay by their Munim, sued the defendants upon 17 Hundies which were drawn by the defendants from Sihore upon the plaintiff in Bombay in favour of several individuals and firms’ in Bombay. The plaintiffs at the request of the defendants paid the said hundies on the defendants’ account and called upon the defendants for repayment but as no repayment was made the plaintiffs filed the suit after obtaining leave under Clause 12 of the Letters Patent. The defendants took up the defence that the hundies in respect of which the suit had been brought were merely Items in one account comprising a long series of transactions between the plaintiffs and the defendants and they contended that the plaintiffs are not entitled to bring a suit in respect of certain selected items in an account but must sue for the balance, if any, upon the whole account. In their written statement they asked for an account after taking into consideration an the dealings between the plaintiffs and the defendants. At the hearing of the suit the learned counsel appearing for the plaintiffs submitted that the hundies sued upon were separate transactions but if the Court accepted the case of the defendants as set up in the written statement, opportunity might be given to the plaintiffs to amend the plaint. Telang, J. as pointed out already found that no such amendment could be allowed and dismissed the suit.
9. The next case that may be considered is reported in Rampurtab Ssmrathai v. Foolibai, ILR 20 Bom 767. In this case the plaintiff firm brought a suit against one Foolibai for recovery of a sum of Rs. 53,883/4/9 In respect of certain commission agency transactions after obtaining leave under Clause 12 of the Letters Patent, alleging that Foolibai was the owner of the defendant firm. In the written statement filed by the defendant It was denied that Foolibai was the owner and It was stated that the firm belonged to her son Punamchand who was then dead and who had left an Infant daughter Goolibai. In consequence of these allegations in the written statement the plaintiff added
Goolibai as a party defendant to the suit but no fresh leave
was obtained when Goolibai was added as a party. At the hearing the learned counsel appearing for the added defendant Goolibai relied on Section 22 of the Limitation Act and contended that when Goolibai was added as a defendant, the suit was to be treated as instituted against her on that date and fresh leave under Clause 12 of the Letters Patent should have been obtained at that time. But no fresh leave having been obtained, the Court had no jurisdiction to entertain or try the suit so far as Goolibai was concerned. At page 774 Candy, J. in dealing with this question of jurisdiction observed inter alia as follows:
“According to the view which has been always accepted in this Court, the leave required by Clause 12 of the Letters Patent must be granted, if at all, at the time of the acceptance of the plaint and cannot be granted afterwards. By Section 22 of the Limitation Act the suit as regards Gooiibai must be deemed to have been instituted when she was made a party. Then was the time if at all to apply for leave under the clause. To use language of the clause the “suit” was then “received” against Goolibai, it cannot be inferred that leave was then allowed or granted.”
The learned Judge ultimately held that the suit was not maintainable against Goolibai and therefore dismissed the suit.
10. There is nothing in this decision to suggest that no fresh leave could at all be granted at the time Goolibai was added as a party. On the other hand, the implication is that at the time Goolibai was added as a party it was open to the plaintiff to apply for such leave.
11. The next decision to which reference may be made is that of Shaw Wallace and Co. v. Gordhandas, ILR 30 Bom 364. In this case the plaintiffs filed a suit In the Original Side of the Bombay High Court on 19th November 1904 against “the firm of Shaw Wallace and Co., as it was constituted on the 13th September, 1898 and the partners in the said firm on that date” in respect of breach of an agreement dated the 13th September, 1898. On 22nd December, 1904 the plaintiffs obtained an order of amendment of the plaint and the plaint was subsequently amended by the addition of the names of Messrs. Wallace, Ashton, Greenway, Hue and Meakin. The last named person Mr. Meakin was the executor of one Secherau who was a partner of the firm but who had died In the meanwhils. It was found that the four persons namely, Wallace, Ashton, Greenway and Hue being members of the old firm who could be sued under the firm name, the suit as originally framed was maintainable against them. But with regard to Mr. Meakin, Jenkins, C. J. observed as follows:
“Mr. Meakin was not a party to the suit at its admission. Even if leave subsequent to the admission of a plaint could be given under Clause 12 of the Letters Patent — as to which I say nothing — I am clearly of opinion that leave could not be given by the prothcnotary. Mr. Meakin therefore as the executor of Mr. Secherau iias wrongly been added as a defendant”.
Thus the question whether a leave subsequent to the admission of a plaint can be given under Clause 12 of the Letters Patent was left open by the learned Chief Justice. Tayabji, J. against whose order the appeal had been preferred dealt with Clause 12 of the Letters Patent in the following manner:
“If the leave under Clause 12 of the Letters Patent had not been obtained, and if the suit had been filed as an ordinary suit without any leave, no question as to the propriety of the amendment could possibly had arisen. But
the difficulties have arisen only by reason of the fact that the amendments were introduced into a plaint which had been accepted under Clause 12 of the Letters Patent. For the decisions snow that very careful consideration is required before any amendments can be permitted in a suit accepted under Clause 12 of the Letters Patent, and if the amendments are material or go to alter in any way the character of the suit or the liabilities of the parties I think they would be open to very serious objection and may net be covered by the leave originally granted.”
So this decision does not also lay down in any definite terms that no leave under Clause 12 of the Letters Patent can in any circumstances be granted in respect of amendments made In a suit filed with prior leave under Clause 12 of the Letters Patent.
12. The next decision to be considered is of Kania, J. in the case of Motilal Tribhovandas v. Shankarlal, AIR 1939 Bom 345. In this case a summary suit had been filed in the name of the plaintiff as a firm disclosing the names of six persons as partners of that firm. The case made in the plaint was that the defendants had given instructions to the plaintiff firm consisting of six persons as partners to effect certain transactions on his behalf; the plaintiffs acted as brokers and as a result of carrying out the transactions the plaintiffs had suffered loss and they claimed the same from the defendant. As the defendant was a resident of Surat it was alleged in the plaint that a part of the cause of action had arisen in Bombay and leave under Clause 12 of the Letters Patent was obtained before the plaint was filed. When the plaintiff firm took out a summoris for judgment, the defendant raised the contention that he had dealings with Motilal Tribhovandas, the individual, and not with the plaintiff firm and so the firm consisting of the six persons had no cause of action against him and the suit was liable to be dismissed. Upon this plea being taken the defendant was granted an unconditional leave to defend the suit. Thereafter an application was made for amendment of the plaint and Motilal Tribhovandas Choksey, the individual, continued the suit in his own name after consequential amendment had been made in the body of the plaint to the effect that it was Motilal, the individual, who had a cause of action against the defendant. But at the time the order for amendment was obtained no leave under Clause 12 of the Letters Patent was asked for or granted. At the hearing of the suit the learned counsel appearing for the defendant raised the objection that as no leave under Clause 12 had been obtained at the time the amendment was made, the Court had no jurisdiction to try the suit. Kania, J. after referring to the decision in ILR 15 Bom 93, observed as follows:
“In ILR 15 Bom 93 it was held that the leave granted was confined to the cause or causes of action set forward in the plaint at the time the leave was granted; hence the plaint cannot be amended so as to alter the cause of action, if an amendment which would alter the cause of action Is made it necessarily follows that fresh leave should be obtained in respect of the altered cause of action. In the present case it seems clear to me that the cause of action alleged to exist in the six persons against the defendant for their alleged employment as brokers by him, is clearly different from the alleged cause of action claimed to exist In Motilal, the individual …. … …
The two causes of action being thus entirely different and no leave having been obtained when Motilal, the Individual, desired to carry on the suit, this Issue must be found against the plaintiff and the suit should therefore be dismissed with costs.”
13. It is clear from these observations of the learned Judge of the Bombay High Court that If an amendment is sought to be introduced in a plaint filed with leave obtained under Clause 12 of the Letters Patent and such amendment had the effect of altering the causes of action, then it was necessary to obtain fresh leave. So the implication of this judgment also is that when an amendment is asked for in a suit instituted with leave under Clause 12 of the Letters Patent it is open to the party applying for amendment to ask for fresh leave under Clause 12 of the Letters Patent and for the Court to grant such leave.
14. The Calcutta cases to which reference has been
made by the learned counsel appearing for the parties may now be dealt with. The first case is that of Baraset Bashirhat Light Railway Co. Ltd. v. District Board of the 24 Parganas, AIR 1946 Cal 23 : ILR (1944) 2 Cal 101 which is a decision of Gentle J. In this case the plaintiff company filed a suit against the defendant District Board for recovery of a sum of Rs. 1,04,000/- under six agreements on 22nd August 1941. After the trial of the suit commenced, some time in April 1943 the learned counsel for the defendant raised the question that the agreements upon which the claim was made were not binding or enforceable against the Board on the ground that they were not executed by the Board as required by the Act and the Rules made thereunder. Subsequently, both the plaint and the written statement were allowed to be amended and alternative claims made under Sections 65, 70 and 72 of the Contract Act were introduced in the plaint by way of amendment. The leave to amend the plaint to include these claims was given on 17th November, 1943. Thereafter when the matter came up for further hearing the learned counsel for the defendant Board raised the contention that the Court had no jurisdiction to try the suit in respect of the claims introduced by way of amendment in the plaint inasmuch as fresh leave under Clause 12 had not been obtained at the time of the amendment in the plaint which had been originally filed after obtaining leave under Clause 12 of the Letters Patent. Gentle J. after pointing out that the original claim was only to enforce the terms of the agreement, but the claims which had been introduced by way of amendment were dehors the agreement and sought to enforce other rights, referred to the decisions of the Bombay High Court reported in ILR 15 Bom 93 and AIR 1939 Bom 345 and after setting out the scope and Implications of those decisions held as follows :-
“In my opinion the Court has no jurisdiction to receive, try and determine the claims upon the causes of action In the amendment to the plaint since leave was not previously obtained in respect of those causes of action before the suit in which they are made was instituted in this Court.”
15. Now if the entire process of reasoning in the Judgment of the learned Judge in arriving at this conclusion, is analysed, the Impression that is conveyed, is that according to the learned Judge an amendment to a plaint raising a new cause of action upon which a claim is made, is not a fresh suit but is an additional claim made in an existing suit, and it is not therefore permissible for the Court to grant fresh leave under Clause 12 and allow an amendment of the plaint at a subsequent stage of the suit. This is also the view which appears to have found favour with D.N. Sinha J. In the case of Kshitish Kumar v. State of Bihar . After summarising the effect of the various decisions to which the attention of the learned Judge had been drawn, the learned Judge at page 286 (of Cal LJ) : (at p. 641 of AIR) recorded the following propositions:-
“Where by amendment of a plaint a cause of action is altered or a new cause of action added, it is not a new suit but the old suit in a new form. In such a case no amendment can be ordered if it requires leave to be granted under Clause 12 of the Letters Patent at the time of the amendment.
It follows that leave under Clause 12 of the Letters Patent cannot be granted in such a case at any stage after the institution of the original suit.”
16. In the case of Srinathdas v. Debi Prosad Shaw 94 C.LJ. 160 G.K. Mitter J. after dealing with the decision of Gentle J. and the argument of hardship put forward by the learned counsel for the plaintiff observed as follows (pages 167-168):-
“I agree that hardship may be caused to the plaintiff in these circumstances but I see no reason why I should differ from the judgment of Gentle J. which I have quoted, as also from the judgment of Kania J. of the Bombay High Court in AIR 1939 Bom 345 ….. once the cause of action is altered or added to it cannot in my opinion be said that the reception of the suit continues to be proper without the grant of fresh leave.”
17. The last part of the observation of the learned Judge “without the grant of fresh leave” seems to indicate that fresh leave subsequent to the institution of the suit can be granted for the purpose of introducing an amendment to the plaint and if no such fresh leave is granted at the time of the amendment the reception of the suit although proper at the time of the institution of the suit ceases to be so and becomes improper by reason of no fresh leave having been obtained in respect of the amendment introduced in the plaint. So this learned Judge has construed the decisions of Gentle J. and of Kania J. in a manner different from D.N. Sinha J. In a later decision of this Court reported in Sugandha Mohan Bhattacharjee v. N.M. Mukherjee , Law J. after dealing with the decisions of the Calcutta and the Bombay High Courts to which I have referred and another decision of the Madras High Court reported in Muthusami Gounder v. T. Krishnaswami Iyengar held that in a suit which is filed with leave under Clause 12 of the Letters Patent only formal amendments or other reasonable amendments can be allowed, provided the amendment sought, does not affect the jurisdiction assumed by the Court originally either by adding to or altering the original cause of action as pleaded in the plaint and no amendment seeking to alter the original cause of action can be allowed by Court in a suit filed with leave tinder Clause 12, far the simple reason that the question involved is not one of procedure but of jurisdiction. The learned Judge disagreed with the interpretation put on the decisions of Kania J. and Gentle J. by Krishnaswami Nayudu J. in the Madras case.
18. This very point also came up for consideration in an unreported decision of A.N. Ray J. in suit No. 1457 of 1955 (Ramballav Rameshwar v. Shibarai Narayandas, judgment D/- 6-9-1961 (Cal). The learned Judge placed strong reliance on a Bench decision of this Court reported in Benoy Shankar Dhandhania v. Choteylal, 84 Cal LJ 200 in which S.B. Sinha J. observed that –
“It is now established that leave originally obtained at the time of the filing of a suit does not cover an amended plaint. Where a defendant is added fresh leave must be obtained even if leave had been obtained when the suit was originally filed. It is contended that there was no change in the cause of action. Even so if new parties are joined against whom it is intended to proceed In the suit and to obtain a decree, the obtaining of the leave is imperative because it is the foundation of the jurisdiction of the Court. The Court gets jurisdiction to decide the suit against parties only if it grants leave which is a condition precedent. No leave was obtained to proceed against the only added defendants and it follows that the Court never got any jurisdiction to make any decree or order against them in the suit.”
19. Relying on this observation and also analysing the Bombay and Calcutta decisions referred to in his judgment, the learned Judge has come to the conclusion that under certain circumstances fresh leave under Clause 12 of the Letters Patent can be granted in respect of an amendment introduced at a stage subsequent to the filing of the suit which is instituted after obtaining prior leave under Clause 12 of the Letters Patent.
20. The attention of the Court was also drawn to two decisions of P.C. Mallick J. of this Court reported in Provabati Kunwar v. Kaiser Kunwar and Biswanath Agarwalla v. Dhapu Debi . In the first mentioned case the learned Judge held that no fresh leave was required for including an alternative relief by way of amendment in the plaint in a partition suit comprising lands partly within and partly outside the jurisdiction of this Court and instituted after obtaining leave under Clause 12 of the Letters Patent. But in view of the conflict of decisions on the point the learned Judge took the precaution of granting fresh leave in respect of the amendment. In the last mentioned case where a person was added as defendant at his own instance to a suit filed after obtaining leave under Clause 12 it was held by the learned Judge that no fresh leave was necessary.
20a. Such being the state of authorities, I am disposed to think that to accept the argument of the appellants will be to put a very narrow and rigid construction an the wordings of Clause 12 and to defeat the true purpose and effect of that clause. Clause 12 sets cut the different circumstances under which this High Court can receive, try and determine suits in the exercise of its Ordinary Original Civil Jurisdiction. One of the circumstances is that if part of the cause of action arises within the local limits of the Ordinary Original Jurisdiction then with the leave of the Court first obtained the Court becomes empowered to receive, try and determine the suit. So the granting of leave is a condition precedent to the Court acquiring or becoming vested with jurisdiction in respect of such a suit. Clause 12 deals with the question of jurisdiction only. It does not deal with the procedure regulating the trial and determination of suits. The power of the Court to deal with matters of amendment of pleadings for determining the real question in controversy between the parties is derived from the Code of Civil Procedure. This power of amendment inheres in the Court for trial and determination of suits of every description in respect of which it acquires jurisdiction under Clause 12 of the Letters Patent. But as in cases where part only of the cause of action arises within jurisdiction or part only of the land is within jurisdiction the obtaining of the leave of the Court is made a condition precedent to the Court assuming or acquiring Jurisdiction the judicial decisions have laid down that any substantial or material addition to or alteration of the cause of action as pleaded in the original plaint is dependent on obtaining of prior leave of the Court, inasmuth as the question of amendment and the question of jurisdiction are inextricably linked up in such cases. Similarly when a new party is added to a suit the cause of action is laid as against him for the first time
when he is so added and consequently in such a case the obtaining of fresh leave has been held to be imperative. It appears to me that this view accords with reason and common sense and the decisions which hold that leave under Clause 12 can be granted by the Court only once at the time of the institution of the suit, and no amendment at all can be allowed of any plaint filed with the leave of the Court have put a wrong construction on the language used in Clause 12.
21. With regard to the nature of amendment asked it is sufficient to point out that the amendment proposed to be introduced cannot be said to be a totally new or inconsistent cause of action. The proposed amendment seeks to set forth certain anterior events which have close relation to and are connected with the subject matter of the original suit. As I have pointed out already certain assignments and agreements have been introduced by the amendment in order to supply the missing links in the chain of the cause of action to show the origin, devolution and accrual of the cause of action in respect of which the plaintiff firm has brought the suit, cut of which the appeal arises.
22. In my view the order made by G.K. Mitter J. is right and it should be upheld.
23. The only other question which has been raised in this appeal is whether an appeal lies from the order allowing the amendment and granting fresh leave under Clause 12 of the Letters Patent. Now if the order in the present case had been an order of amendment simpliciter it might very well have been contended that such an order was not an appealable order. Because by a mere order allowing certain amendments or some new grounds of claim to be raised in the pleadings there is no determination of ihe rights of the parties on any question between them. As observed by Kania, A.C.J. in the case of Shesh Giridas Shanbhag v. Sunderrao, AIR 1946 Bom 361.
“The effect of the amendment only is that the plaintiff will be allowed to raise that contention. The granting of leave to amend does not amount to admitting that those contentions are valid or that the plaintiff will get the relief because of those contentions. They will be decided at the fearing on the merits of the disputes between the parties ….. It is only an order in respect of the procedure of the suit ….. It is however clear
that the order for amendment as made in the present case does not in any way deal with the jurisdiction of the Court or affect its jurisdiction.”
Chagla J. in the same case also made similar observations in his judgment. At page 363 the learned Judge stated thus :-
“Order 6 Rule 17 has nothing whatsoever to do with jurisdiction. It proceeds on the assumption that the Court has the jurisdiction in a suit pending before it to order amendment of pleadings. All that Order 6 Rule 17 provides is the mode in which the Court should exercise that jurisdiction.”
25. This view has found favour with this court. So if the order appealed against in the present case would have been an order of amendment pure and simple this Court would have been inclined to take the view that no appeal lay from such an order. But in the present case the question is further complicated by the fact that fresh leave under Clause 12 of the Letters Patent was granted in respect of the amendment, as such leave was found necessary in view of the provisions of Clause 12 of the letters Patent. It was held in the case of DeSouza v.
Coles, 3 Mad HCR 384 that an appeal lies from the decision of a judge exercising Original Jurisdiction refusing to give leave to institute a suit on the Original Side of the High Court in a case in which the cause of acton has arisen in part within the Ordinary Original Jurisdiction of the High Court. In the case of Vythilinga Mudally v. M. Cundasamy Mudally, 3 Mad HCR 21 an appeal from an order granting leave under Clause 12 of the Letters Patent by a learned judge of the Madras High Court after another learned Judge of co-ordinate jurisdiction had refused leave in respect of substantially the same cause of action was entertained by the Appellate Court and the order was set aside as being irregular and an abuse of the process of the Court. It is to be noted that no objection was raised in that case as to the competency of the appeal.
26. In the case of Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub decided so far back as in 1874 and reported in 21 Suth WR 303 where a suit had been instituted in this Court after obtaining leave under Clause 11 of the Charter which corresponds to Clause 12 of the Letters Patent for setting aside a release and the defendants made an application for the plaint being taken off the file, Macpherson J. rejected the application. An appeal was taken against the order and the question of maintainability of the appeal was raised before the Appeal Court. The learned Chief Justice Sir Richard Couch in dealing with the question of competency of the appeal observed :-
“It was held by the High Court at Madras in 3 Mad HCR 384 that an order made under this clause of the Charter was subject to appeal. We may not agree in all the reasons which the learned Judges of that Court gave for their decision, but we do agree in the conclusion that this is an appealable order. It is of great importance to the parties. It is not a mere formal order or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have and it may fairly be said to determine some right between them, namely, the right to sue in a particular Court and to compel the defendants who are not within its jurisdiction to come in and defend the suit, or, if they do not, to make them liable to have a decree passed against them in their absence.”
These observations of the learned Chief Justice make ft abundantly clear that an order made under Clause 12 of the Letters Patent is subject to appeal inasmuch as it is not an order merely regulating the procedure of the suit but one which affects the jurisdiction of the Court. So when the question of amendment of the pleading and the question of leave under Clause 12 of the Letters Patent are inter-connected or in other words when the question of procedure and the question of jurisdiction are mixed up and one cannot be dissociated from the other, the order dealing with such question of procedure and jurisdiction is in my view an appealable order and it is a judgment within the meaning of Clause 15 of the Letters Patent.
27. in a more recent decision of this Court reported in Shorab Merwanji Modi v. Mansata Film Distributors it has been held relying on the decision of Sir Richard Couch to which I have already referred that an order refusing to rescind a leave granted under Clause 12 of the Letters Patent is a judgment and is appealable under Clause 15 of the Letters Patent. Chakravartti C.J. at pages 567-568 (of Cal WN): (at pp. 732-733 of AIR) relied on the observations of Sir Richard Couch in Hadjee Ismail’s case, 21 Suth WR 303 and also referred to the decision of the Supreme Court in Asrumati Debi v. Rupendra Deb and particularly to the observations of the Supreme Court made- in connection with the decision of Sir Lawrence Jenkins reported in Vaghoji Kuverji v. Camaji Bomanji, ILR 29 Bom 249 where the learned Chief Justice expressed the view that an order refusing to rescind a leave granted under Clause 12 of the Letters Patent was a judgment and was appealable as such and Chakravartti C.J. proceeded to point out that although the Supreme Court did not express any final opinion as to the propriety or otherwise of the view expressed by Sir Lawrence Jenkins the fact remains that the Supreme Court did not disapprove of the decision of Sir Richard Couch and as he himself did not see any reason to differ from the decision of Sir Richard Couch, he agreed with the reasoning expressed in that decision. Thus there is a Bench Decision of this Court in which an order refusing to rescind a leave under Clause 12 has been held to be a judgment and as such appealable under Clause 15 of the Letters Patent and as In my view there is no difference between an order refusing to rescind a leave under Clause 12 and an order granting leave under Clause 12, I am at a loss to understand why the order made in the present case granting fresh leave in respect of the amendment asked for cannot be said to be a judgment from which an appeal lies under Clause 15 of the Letters Patent. I hold that the order appealed from is a judgment within the meaning of Clause 15 of the Letters Patent and as such the objection as to the maintainability of the appeal must be overruled.
28. But in view of my finding that the order of G.K. Mitter J. is right this appeal must fall and it is accordingly dismissed with costs. Certified for two Counsel.
29. The operation of the order of G.K. Mitter J. dated the 28th March 1961 will remain stayed till the 16th January, 1962.
Debabrata Mookerjee, J.
30. I agree in the conclusion reached by my Lord the Chief Justice that the appeal should be dismissed but I do so on somewhat different grounds.
31. Two questions have in the main been debated in this appeal: First whether in a suit brought with the leave of the court under Clause 12 of the Letters Patent, amendment of pleadings Is at all allowable, and if so, whether fresh leave Is required; secondly, whether the order giving such leave is appealable.
32. The plaintiffs, a firm of Commission Agents Instituted the suit against the defendants for a decree for a certain sum of money; in the alternative, a claim for accounts without disturbing settled accounts was made end a decree for such sum as may be found due on taking accounts was prayed for. The plaintiff firm alleged that part of the cause of action had arisen within the original jurisdiction of this Court and consequently asked for leave under Clause 12 to Institute the suit. The leave having been granted the suit was taken on file and the defendants put in their written defence. Thereafter, fresh leave under Clause 12 to amend the cause title and certain pleadings In the plaint was asked for. The learned trial Judge heard the parties on the proposed amendments and gave leave again with liberty to the defendants to file an additional written statement. This order was made on March 28, 1961 against which the defendants have appealed.
33. The material provisions of Clause 12 of the Letters Patent are “….. the said High Court of
Judicature at Fort William in Bengal ….. shall be
empowered to receive, try and determine suits of every description if ….. the cause of action shall
have arisen either wholly or in case leave of the court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court….”
34. It is plain from the language employed that where only a part of the cause of action has arisen within jurisdiction, the High Court has first to give leave in order to receive, try and determine the suit. The leave has la be given at the time of admission of the plaint and cannot be granted afterwards. The courts have gone further and held that the decision to give leave or to withhold it, is a judicial act and the order giving leave or refusing it, is subject to appeal. That was the view taken as long ago as 1868 in the case of 3 Mad HCR 384 where it was held that a Judge exercising discretion vested in him by Clause 12 of the Charter upon an ex parte application lor leave to bring a suit, acts judicially and his decision is a judgment subject to appeal under Clause 15. This view was endorsed by Richard Couch, C. J. in the case of 21 Suth WR 303. It was ruled that where leave was necessary, such leave must be obtained as a condition precedent to the institution of the suit. The order made under Clause 12 was accordingly held appealable on the footing that it was not a formal order, or an order merely regulating procedure in the suit, but one which has the effect of giving jurisdiction to the court which it otherwise would not have. It was explained that a decision giving leave or withholding it amounts to a determination of some right between the parties, namely, the right to sue in a particular court and to compel the defendants who are not within its jurisdiction to come In and defend the suit, or if they do not, to make themselves liable to have a decree made against them in their absence. This position was reaffirmed in a Full Bench decision of this Court of Laliteswar Singh v. Rameshwar Singh, ILR 34 Cal 619 where Maclean, C.J. held, on a consideration of the relevant authorities, that the order granting leave to sue under Clause 12 of the Letters Patent Is a judicial and not merely a procedural or administrative act; the leave has to be granted by a Judge of the Court and it is not competent for the court to delegate this function to one of its officers. The leave given creates jurisdiction which determines a right between the parties, namely, the right to sue in a particular court.
35. The Supreme Court held in the case of that leave granted under Clause 12 constitutes the very foundation of the suit which is instituted on Its basis. Even a distinction was made between leave under Clause 12 and leave given under Clause 13 directing removal of a suit from one court to another.
36. It seems clear that the leave contemplated In Clause 12 of the Letters Patent must be given before a suit, in which the cause of action has arisen partly within jurisdiction, can be received, tried and determined by the High Court on its Original Side. The leave is a condition precedent which has to be fulfilled before the court can in a case of this kind assume powers over parties to the dispute and the subject matter of the dispute. Such leave has to be expressly given and cannot be inferred from the mere fact that the suit has been allowed to go on where only a part of the cause of action has arisen within jurisdiction.
37. If such Is the position the question then arises whether amendment of pleadings can be allowed in a suit brought with leave under Clause 12. There is no provision in the Letters Patent providing for leave to be given again to amend the pleadings. It is therefore for consideration whether any amendment of pleadings can at all be
allowed in such suit, and if allowed, whether fresh leave is required for such amendment.
38. The Letters Patent by its Clause 37 provides for regulation of proceedings in civil cases. It authorises the High Court to make rules and orders for the purpose of regulating all proceedings in civil actions which may be brought before it and says that the High Court shall be guided in making such rules and orders as far as possible by the provisions of the Code of Civil Procedure or of any law by which the Code may be altered or amended by competent legislative authority. In the absence of any direct provision in the Letters Patent, it would not perhaps be wrong to look to the Civil Procedure Code for guidance in the matter. Order 6 of the Code deals with pleadings generally and R. 17 provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and ail such amendments shall be made as may be necessary for the purpose of determining the real questions In controversy between the parties. The Letters Patent Itself enjoins reference to the Civil Procedure Code for guidance in the matter of rules to be framed by the Court for regulating its own procedure. Order 49 of the Code expressly exempts the High Court from the operation of certain rules contained in Its first schedule. The exemption relates to service of processes, the manner of taking evidence or recording of judgment and orders. Rule 3 enumerates the rules and orders which will not apply to the High Court in its ordinary or extra ordinary original civil Jurisdiction. It is to be observed that Order 6 which deals with pleadings generally is not one of the orders mentioned in Rule 3 of Order 49. The result is that there is nothing either in the Letters Patent or In the Code which prevents application of the rules relating to pleadings contained in Orders 6. Prima facie it seems right to hold that amendment of pleadings can be allowed in suits brought with leave under Clause 12. The opposite conclusion can only result in deprivation of the right of the suitor to amend his pleadings in such suit.
39. The contention on behalf of the appellants has been that no amendment of pleadings can be allowed In such suits for the reason that amendments have the effect of altering or adding to the original cause of action upon which leave under Clause 12 was asked for and obtained. The argument is that the very notion of amendment is repelled by the condition prescribed in Clause 12 which requires the Judge to give leave first and then to receive, try and determine the suit. I agree; leave which confers jurisdiction cannot be given piecemeal; leave once given is given for trial to a close, and cannot be repeated. The Judge when giving leave exercises his judicial mind on the facts making up the cause of action originally stated in the plaint. Broadly speaking the notion of fresh leave, appears to be abhorrent to the concept of leave in Clause 12 since such leave constitutes the very foundation of jurisdiction, and jurisdiction cannot be created or conferred in instalment. A concession has, however, been made on behalf of the appellants that if any amendment does not entail substantial alteration of the cause of action, the amendment may be allowed even in such suits.
40. The argument has been sought to be reinforced by a decision of the Bombay High Court in the case of ILR 15 Bom 93, where Telang, J. held on reference to the authorities that since leave tinder Clause 12 is a judicial act which must be held to relate only to the cause of action disclosed in the plaint as presented to the Court at the time of the grant of such leave, no amendment of pleadings can be allowed. The learned Judge felt pressed by the
weight of judicial opinion to hold that since the leave affords the very foundation of the Court’s power to deal with the dispute, it is not available to confer jurisdiction in respect of a substantially different cause of action which was not judicially considered at the time the leave was granted. This view has found favour with Gentle, J. in the case of AIR 1946 Cal 23, who also held that leave under Clause 12 being a condition precedent to jurisdiction to receive, try and determine the claims contained in the plaint, the Court has no jurisdiction to determine other claims founded upon causes of action in the amendment on the ground that leave had not previously been obtained in respect of the amended pleadings.
41. In my opinion, these decisions proceed on the assumption that every amendment necessarily implies a complete change of cause of action. As is well known a cause of action means every fact which if traversed, it would be necessary for the plaintiff to prove In order to support his right to entitle him to a decree; it includes everything which if not proved would entitle the defendants to an immediate judgment; it is a bundle of essential facts set forth in the plaint and those facts are the media upon which the plaintiff asks the Court to pronounce in his favour. It is equally well known that there may be parts of a cause of action same of which may only be an elaboration of the main facts upon which the plaintiff founds his claim to relief. The Letters Patent itself refers to cause of action arising wholly or in part within jurisdiction. As Holloway, J. aptly observed in the case of 3 Mad HCR 384, that
“the words cause of action may have either the restricted sense of immediate occasion of the action or the wider sense of necessary conditions of its maintenance. In the one sense it is the mere matter of fact the failure of the defendant to do or forbear from doing, to give, or make good that which the plaintiff’s right entitles him to insist upon. In the other, it is this matter of fact plus the right resident in the plaintiff. Failing the former an injury is inconceivable; failing the latter, the right cannot assume the special shape of an action.”
42. It seems plain that several facts pleaded upon which the claim to relief is founded may well have ancillary facts which are more or less of a subsidiary or explanatory in character. Where therefore an amendment of the pleadings does not introduce an altogether new set of facts which changes beyond recognition the original cause of’ action, there cannot possibly be any objection to such amendment being allowed in a suit brought with leave under Clause 12 of the Letters Patent. Within the limits permitted by the law, there may be several causes of action joined together and trial of such action is a familiar feature of the law of procedure. There are circumstances where such joinder is forbidden; but where, within the limits prescribed, several causes of action are Joined which do not bring about multifariousness, joinder is permissible and the suit may well proceed to judgment.
43. The question whether amendment can be allowed In a given case Is always a matter for the exercise of the Court’s Judicial discretion. Amendments are, as a matter of fact, liberally allowed and R. 17 of Or. 6 expressly provides that a Court may at any stage of the proceedings-allow either party to alter or amend his pleadings. Such amendments have of course to be necessary for the purpose of determining the real question in controversy between the parties. The only inhibition against allowing amendments appears to have been indicated by the Judicial Committee in the case of Ma Shwe Mya v. Mg. Mo Hnaung, 48 Ind App 214 : (AIR 1922 PC 249), where it was said that
the Court has no power to enable one distinct cause of action to be substituted for another in order to change by mesne of the amendment the subject matter of the suit; at the same time it was held that all rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that the full power of amendment must be enjoined and always be liberally exercised. This observation implies that it is not open to the Court to permit altogether a new case to be made. Substantially the same view had been expressed by the Judicial Committee in the earlier case of Charan Das v. Amir Khan, 47 Ind App 255 : (AIR 1921 PC 50), that the discretion exercised in allowing an amendment should not be interfered with. It was held that although the power of the Court to amend the plaint in a suit should not be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, still there are cases in which that consideration is outweighed by the special circumstances of the case. These observations were endorsed by the Supreme Court in the case of Leach and Co. Ltd. v. Jardin Skinner and Co. in which that Court gave leave to amend the plaint even at that stage by allowing an alternative claim for damages for breach of contract for non-delivery of goads despite the respondent’s opposition. It was held that interests of justice required that the amendment should be allowed even though a suit on the amended cause of action was barred by limitation.
44. It is, in my view, not right to contendi that amendment will, when allowed, affect jurisdiction. Clause 12 speaks of leave being given to receive, try and determine a suit. Amendment can only mean additions or alterations to the suit. There can be no question of leave being given to amendments which are by the very nature of things mere additions or alterations to the pleadings in the suit. The leave spoken of in Clause 12 gives jurisdiction to receive and determine the suit. There can be no question of leave to amendments under that Clause. Under the general law regulating amendments of pleadings, the Court may give leave to amendments being made to pleadings, but such leave controlled and guided by Orders 6, Rule 17 has nothing to do with the leave under Clause 12 which when obtained enables the party to commence the suit. Leave under
Clause 12 affects jurisdiction but leave or allowance under Orders 6, Rule 17 is entirely procedural; such allowance has
nothing to do with jurisdiction. As was observed by Chagla, J. in the case of AIR 1946 Bom 361, an order for amendment of pleadings does not in any way affect the jurisdiction of the Court. When the Court allows an amendment it proceeds on the basis that the Court has jurisdiction to
try the suit and regulate its. own procedure by allowing amendment of pleadings. Rule 17 only provides the mode in which the Court should exercise jurisdiction which it possesses. It must therefore be held that jurisdiction and procedure are entirely different categories and the two cannot be confused. Procedure becomes relevant only when there is jurisdiction to regulate it; the former is merely
the machinery to reach a decision which the latter conditions and authorises.
45. If such is the result, there can be no question of leave being granted to an amendment of pleadings under Clause 12 of the Letters Patent. If the proposed amendment is not allowable by reason of its being wholly inept or unnecessary for the purpose of determining the real question in controversy between the parties, it is bound to be disallowed. That disallowance takes place in the exercise
of the Court’s discretion given to it by Orders 6, Rule 17. It can have nothing to do with jurisdiction contemplated in Clause 12 of the Letters Patent. I agree there can be no such thing under Clause 12 as leave by instalment. Once such leave has been given, the Court acquires jurisdiction over the subject matter and the parties to the dispute. In the course of the trial the dispute may take on new aspects in consequence of the amendment allowed; but being an amendment it must be assumed to have gassed the initial iest that it is related to the main cause of action and necessary to enable the Court to determine the real question in controversy over which the Court has already assumed jurisdiction by reason of the leave given under Clause 12. An amendment must, by the very nature of things, be subsidiary to the main facts constituting the cause of action; and once the Court has by its leave given under Clause 12, become seized of the dispute, it cannot consider itself disseized or robbed of jurisdiction by reason of the amendment allowed. I cannot conceive that the right of amendment which is a valued right is denied to a suitor who has asked for and obtained leave in terms of Clause 12. If it is right to hold that amendments cannot be allowed in a suit brought with leave, that would obviously imply denial of the right of amendment of pleadings and make the rules contained in Orders 6 a dead letter. Amendments are made in the course of the trial; but the trial cannot commence until there is already jurisdiction in the court; and once jurisdiction is there to try the action, the amendments are assimilated to the main pleading upon which leave to receive, try and determine the suit was had, and obtained. To hold therefore that amendment requires fresh leave is to say that jurisdiction has again to be created to receive the amendment in order to relate it to the original cause of action upon which the leave was granted. I for one do not see how on principle it could be said that an amendment requires fresh leave under Clause 12 except perhaps in one case to which I shall presently refer.
46. Where for the purpose of addition of parties an amendment is introduced, it has necessarily the effect of enlarging the scope of the suit. The Court acquires jurisdiction upon the added party for the first time when he is brought into the proceeding. The Court’s jurisdiction has to be related to the cause of action as much as to the parties to be affected by its decision. Indeed, the Court has no jurisdiction over such added party until the amendment was allowed. An order made or decree passed in the suit would not have affected him if he was not a party to it. In such a case it must be held that when the Court acquires jurisdiction upon such added party, there has to be leave given under Clause 12 so as to make him amenable to the Court’s jurisdiction. For the party thus added, the suit commences when he is brought on the record. But before the Court can exercise jurisdiction over him, there has to be leave given in so far as he is concerned. That seems to be the position in view of Section 22 of the Limitation Act which says that where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he is made a party. In a case of this kind the suit, in fact instituted earlier, must by a legal fiction be held to have been Instituted at the lime when he is put into the proceedings and made a party. This view was accepted in the case of 84 Cal LJ 200, where S.B. Sinha, J. who spoke for the Court, held that leave has to be obtained for the addition of parties although the suit has been commenced with leave already obtained under Clause 12. This view accords with the principle that leave once given under Clause 12 enures,
and no farther leave is required or can be given when amendments to pleadings have been allowed by the Court. Leave repeated under Clause 12 in the course of the suit seems to be repelled by the clause itself, except upon addition of party, when leave becomes imperative, since the Court then acquires for the first time jurisdiction over him. In all other cases amendments when allowed merely adhere to the original cause of action upon which the Judge’s mind was exercised when he decided judicially to receive, try end determine the suit.
47. I am inclined to agree with the view taken by D.N. Sinha, J. in the case of , that where by amendment of plaint a cause of action is added, it is not a new suit but the old suit in a new form. If by “new form” the learned Judge meant that it is the old suit with certain facts added to the original cause of action, I should have no difficulty in accepting his conclusion. As I understand it, no amendment can be allowed under the rules of pleading if it is of such a character as to alter completely the nature of the original cause of action and make leave under Clause 12 imperative. An amendment such as this cannot be allowed under R, 17 of Orders 6; and if such amendment is allowed it would import an altogether new cause of action entirely foreign to the original one, and it would only be fit to be tried separately. In my, view, no leave need be asked for when an amendment, properly so called, is made since the court once seized of the original cause of action is quite entitled to entertain amendments in terms of Orders 6, Rule 17 of the Code of Civil Procedure. I agree that where a new party is added, the suit as regards the added party must be deemed to have been commenced on the date he is brought into the proceedings, in such case it is necessary to grant leave under Clause 12 in order that the Court may assume jurisdiction ever such added party.
48. The Bombay decision in Shaw Wallace and Co., ILR 30 Bom 364, is of little assistance. This was a suit brought with leave but it was held on appeal that the leave was unnecessary. A party had been wrongly added and Chief Justice Jenkins commenting upon it observed that leave could not have been given by the Court’s Officer; as to whether leave subsequent to the admission of a plaint could be given the learned Chief Justice observed that he
wished to say nothing.
49. But another Bombay decision in AIR 1939 Bom, 345, is instructive. Kania, J. (as he then was) observed that the obtaining of leave Wider Clause 12 being the foundation of the Court’s jurisdiction, such leave cannot be given afterwards. The cause of action which was a right to sue vested in six persons in that case was held as being not the same as the right which existed in an individual; when, therefore that individual desired to carry on the suit without the leave first had and obtained, the learned Judge thought that the suit deserved to be dismissed.
50. In the case of 94 Cal LJ 160, G.K. Mitter, J. accepted the view expressed by Gentle, J. in the case of Baraset Basirhat Light Railway Co. Ltd., but added that once the cause of action was altered it could not be said that the reception of the suit “continued to be proper” without the grant of fresh leave. The learned Judge repelled the contention that amendments ought to be allowed in suits brought with leave to prevent hardship and held that a suitor who sought to take advantage of Clause 12 cannot be heard to complain if through his own default he omitted to include a ground of relief which was available to him at the time of the institution of the suit. I am unable to agree that there is such a thing as “fresh leave”. The leave is the initial thing and when a party is added and leave given, it is also the initial leave so far as he is concerned.
51. I am unable to agree with Krishnaswami Nayudu, J. who seems to have held in that fresh leave can be granted upon the plaintiff’s application to amend his plaint. As I have said amendments, properly so called, of the original cause of action do not require fresh leave since they are mere amendments. When the Court is once seized of the suit, it is seized for all purposes and it can allow an amendment provided it is necessary for determining the controversy between the parties. That I think is the true view since an amendment of pleading is merely procedural, whereas leave under Clause 12 is fundamental and jurisdictional.
52. Law, J. held in Suganda Mohan Bhattacharjee’s case that only formal amendments or reasonable ones can be allowed if they do not affect the jurisdiction assumed by the court originally under Clause 12. While it is not easy to see what is meant by formal amendment, the learned Judge seems to be inclined to the View that leave once granted cannot be repeated. Mallick J. had occasion to deal with the question in a slightly different form in the case of in which the learned Judge referred to an earlier decision of his and expressed the view that in a suit for land partly situate within jurisdiction which required leave to be obtained under Clause 12 of the Letters Patent, fresh leave for amendment was not necessary if the plaint was subsequently amended. But this statement has to be taken with a qualification since the new cause of action related to land situate wholly within jurisdiction; the facts of the case did not quite clinch the issue as to whether fresh leave was necessary consequent upon an amendment.
53. In a recent unreported decision of this Court in the case of Suit No. 1457 of 1955 (Cal) Ray J. held that it is open to the Court to grant fresh leave under Clause 12 to amendments of pleadings. At the same time the learned Judge held that amendment is a matter of procedure and procedure is different from jurisdiction, the two being entirely separate concepts. For the reasons given I am unable to accept the view that fresh leave can be given to amended pleadings even though they do not involve addition of parties.
54. It is plain that judicial opinion has been divided on the question whether an amendment of pleadings requires fresh leave under Clause 12. But I think it has to be held that amendment is entirely procedural and has nothing to do with jurisdiction. There is nothing in the Letters Patent which will encourage the view that in a suit brought with leave under Clause 12, the suitor is to be deprived of the right to amend his pleading where such amendment can be properly allowed. In my view, he has that right within the limits of Order 6 Rule 17. This is essentially a procedural right which has nothing to do with jurisdiction which leave under Clause 12 confers. For amendments, he docs not require leave again under Clause 12. Indeed, jurisdiction cannot he acquired in instalments and the question of leave under the clause during the pendency of a suit can only arise when a new party is brought into the proceeding by way of an amendment. But in such case it will not he leave repealed, but only leave given, since by such leave the Court acquires jurisdiction for the first time. In the present case Counsel for the appellants conceded that in substance there has been no amendment by addition of parties. The question need not therefore be pursued and the effect of such inconsequential amendment need not be considered.
55. The other main question debated relates to the appealability of an order giving leave to amend the pleading. An order giving leave or refusing leave under Clause 12 or even refusing to rescind the leave given has been held to be appealable under Clause 15 of the Letters Patent. In 3 Mad HCR 384 the decision proceeds on the footing that an appeal lies from the decision of a Judge exercising original jurisdiction refusing to give leave to institute a suit in which the cause of action has arisen In part within the ordinary original jurisdiction of the High Court. The decision in Hadjee Ismail Habib’s case, 21 Suth WR 303 also proceeds on the same looting. The decisions have turned on the construction put upon the word “Judgment” under Clause 15 and it has generally been held that the word “judgment” must be taken to mean a decision which determines some liability affecting the merits of the controversy between the parties. It is unnecessary in the present case to elaborate this aspect of the matter since the immediate question before us is one of appeal from an order allowing an amendment. The Civil Procedure Code does not allow an appeal from an order under Rule 17 of Orders 6. But the question may arise in another form. If an amendment requires fresh leave under Clause 12, the order granting such leave or refusing it, may attract a right of appeal. In the view I have taken amendments properly allowed under Rule 17 of Orders 6 being entirely a matter of procedure does not relate to jurisdiction and consequently no question arises of an order permitting or refusing such amendments being held appealable. But even then it may perhaps be argued that such order amounts to a decision affecting the rights of a suitor. This aspect of the matter was considered at some length in the case of Narendra Nath Dutt v. Jitendra Nath Dutt by Chakravortti, C. J. who held that the word “judgment” in Clause 15 of the Letters Patent must be taken to mean a decision on a question touching the merits of the controversy between the parties. A distinction was made between controversy regarding rights to the subject matter of the suit and controversy about the ground upon which such rights are asserted or denied. Where a plaint is properly allowed to be amended, it merely means that the plaintiff has been permitted to include a new ground of relief; an order permitting such amendment decides nothing, affects no rights and curtails no claim of the defendant to challenge the new ground. The effect of such an order is merely that the plaintiff is allowed to make a claim and it does not mean that the claim has been rightly made. It has accordingly been held that the order permitting amendment is merely an order regulating procedure of the court regarding the manner in which the parties will state their cases with the consequence that no substantive rights are thereby affected. The learned Chief Justice pointed out that if substantive rights which are the rights in controversy between the parties to the suit are not affected by an order permitting an amendment, such order cannot amount to a ‘judgment’ and therefore cannot be held to be appealable. It was therefore held that ai order allowing an amendment of the written statement to raise the plea that the suit was barred by limitation and that the plaintiff was not entitled to succeed on the ground of adverse possession was not ‘Judgment’ within the meaning of Clause 15 of the Letters Patent and was therefore not appealable. I respectfully agree with this view.
56. An order of amendment of pleadings is not by Itself appealable and in my opinion no question of leave under Clause 12 of the Letters Patent arises in suth case, since leave under that clause being a matter of jurisdiction Involves decision of some kind affecting the merits of the controversy. But amendment of pleadings being entirely
procedural, an order allowing or refusing it decides nothing, does not affect the merits of the controversy and is consequently not appealable except where jurisdiction is assumed over added parties by leave being given under Clause 12 of the Letters Patent.
57. I would therefore dismiss the appeal.