JUDGMENT - Chagla, C.J.

[1] This is an appeal from an order of Tendolkar J., granting leave to the plaintiffs to amend the plaint. A preliminary objection is taken by Mr. Manecksha that the order does not constitute a judgment within the meaning of clause (15), Letters Patent and no appeal lies.

[2] Now, the same question came up before a Bench of this Court constituting of Sir Harilal Kania, Ag. C. J., as he then was, and myself, in Sheshgiridas Shanbhag v. Sunderrao, 48 Bom. L. R. 252 : (A. I. R. (33) 1946 Bom. 361), and we held that allowing an amendment of the plaint was not a judgment within clause (15), Letters Patent. Mr. Seervai has tried to distinguish this judgment. According to him we were dealing there with a case where the contention was that the order made by my brother Coyajee J., granting leave to amend the plaint allowed matters to be pleaded which went beyond the scope of the suit and we held that assuming the learned Judge was wrong in allowing the amendment, the most that could be said was that he had improperly exercised the discretion vested in him to make the order under O. 6, R. 17. The contention was put forward in that case that Coyajee J., had no jurisdiction to make the order that he had made. That contention was rejected by us. Mr. Seervai says that in the present case the plaint discloses no cause of action and the learned Judge by allowing the amendment of the plaint has permitted the plaintiffs to plead facts which would give them a cause of action, and according to Mr. Seervai once the plaint does not disclose a cause of action, the plaint is liable to be dismissed and must be dismissed and the Court has no jurisdiction to allow an amendment of the plaint. Therefore Mr. Seervai says that whereas in Sheshgiridas Shanbhag v. Sunderrao, 48 Bom. L. R. 252 : (A. I. R. (33) 1946 Bom. 361), no question of jurisdiction of the Judge arose, in the case before us now the question of his jurisdiction does arise. For the purpose of this appeal, we are assuming that the plaint did not disclose a cause of action although the learned Judge has held that the cause of action was defective and by the amendment which he allowed the defect was cured.

[3] Now, apart from authority, turning to the scheme of the Civil Procedure Code, O. 6, R. 17, is very wide in its terms and it gives power to the Court to allow either party to alter or amend his pleadings in order that the real questions in controversy between them should be adjudicated upon. Mr. Seervai relies on O. 7, R. 11, which provides that the plaint shall be rejected in the cases mentioned in that rule and the one with which we are concerned is where it does not disclose a cause of action. Mr. Seervais argument is that when a plaint comes before the Court and that plaint does not disclose a cause of action, it is mandatory upon the Court to reject that plaint and dismiss the suit and the Court has no power to permit the plaint to be amended. In other words, Mr. Seervais contention is that O. 6, R. 17, is controlled by O. 7, R. 11, and in cases falling under O. 7, R. 11, the Court has no jurisdiction to order the amendment of the plaint. I am unable to accept that contention. I see no reason whatever why the power of the Court to allow amendment of pleadings should be in any way restricted or controlled by the provisions contained in O. 7, R. 11. It is perfectly true that it is incumbent upon the Court to reject a plaint that does not disclose a cause of action, but it does not follow that it is not open to the Court to allow a plaint to be amended so that it should disclose a cause of action. It is only when a plaint does not disclose a cause of action that the Court is called upon to exercise its power under O. 7, R. 11. But the Court may prevent the operation of O. 7, R. 11, and may save the plaint being rejected by exercising its power under O. 6, R. 17, and allowing the plaint to be amended. It would indeed be an extraordinary proposition to lay down that if

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