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Tuesday, May 12, 2015

Whether the amendment petition ousting jurisdiction can be considered ? - yes - 2015 A.P.(1993) MSKLAWREPORTS

Order 6, Rule 17 C.P.C. runs as follows:-
17. "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 all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties."
It is necessary to notice the provisions of Order 7, Rule 10 C.P.C. at this juncture. 
The same is extracted hereunder:-
10. (1) (Subject to the provisions of the Rule 10A, the plaint shall) at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted."
A combined reading of both the provisions make it abundantly clear to one's mind that Order 6, Rule 17 C.P.C. makes it obligatory on the Court to consider an application for amendment in any pending suit. On a consideration of the said application, if it exceeds the jurisdiction of the said Court, it has to invoke the provisions of Rule 10 to Order 7 C.P.C. which gain makes it obligatory on the Court to return the plaint for being presented to a proper Court.

 A controversy, whether in such circumstances, the Court should return the plaint along with the application for amendment, or consider the application for amendment and then only return the plaint if it exceeds the jurisdiction of that Court in view of allowing the amendment, was set at naught by a Division Bench of this Court in C. Janardhan Rao v. C. Ratnamala, 1986 (2) APLJ 203 which overruled the decisions reported in Padmanabha Talkies v. Gowthami Pictures, 1971 (1) APLJ 375 and Kaka v. Kanhayya Lala, 1980 (1) An.W.R. 341 and by authoritatively laying down the dicta that the jurisdiction of the Court in which the plaint was originally filed, is not taken away or ousted to consider an amendment to the plaint which eventually ousts the jurisdiction of that Court.
 If on a consideration of the application for amendment, the jurisdiction of the Court is lost, the proper course is to invoke the provisions of Order 7, Rule 10 C.P.C. and return the plaint for presentation before a proper Court. For this view, the words "at any stage of the suit", occurring in Rule 10 to Order 7 C.P.C. lend ample support. 
The Court is not denuded of is jurisdiction to entertain an application for amendment in a duly constituted suit, merely because the consequences of the decision of the application in a particular way oust the jurisdiction of the Court subsequently. 
Therefore, the fact that jurisdiction of the Court would be ousted is no ground to refuse an amendment of the plaint. In view of the binding authority of the Division Bench in C. Janardhan Rao v. C. Ratnamala, 1986 (2) APLJ 203, I have no hesitation in holding that the Court would not lose jurisdiction to consider the application for amendment. If on a consideration of the application for amendment, if the Court loses its jurisdiction, the proper course is to return the plaint under Order 7, Rule 10 C.P.C.- 2015 A.P.(1993) MSKLAWREPORT

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