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


Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.