HARI LAL AGRAWAL, J.

1. The short question of law involved in this miscellaneous appeal is as to whether a Court not having jurisdiction over the suit itself, can allow amendment of plaint.

2. The suit in question was filed in the first Court of the Subordinate Judge at Arrah for partition of certain joint family properties. Undisputedly all the immoveable properties sought to be partitioned were situated in the district of Balia in Uttar Pradesh, barring a savings bank account in the State Bank of India at Arrah branch. It appears that a question of maintainability of the suit was raised by the office and thereupon the plaintiffs filed a petition on 15-5-1970 for amendment of the plaint which was allowed. The question of jurisdiction was then taken up by the Court below and by order dated 18-5-1970, the Court recorded the following order: (sic)

"... ... .. ... it appears that plaintiff has amended their plaint by including a building situated within the Arrah town which lie within the jurisdiction of the Court. In the circumstances let the plaint be admitted subject to the objection, if any, raised by the defendants."

When the defendants appeared, defendant No. 6 raised the question of jurisdiction and maintainability of the suit and the Court proposed to decide it as a preliminary issue. On 15-9-1971 when the matter was taken up, the plaintiffs did not participate in the hearing and the issue of jurisdiction was decided against them by the impugned order. The Court took the view that regard being had to the fact that the suit itself was beyond the jurisdiction of the Court, the amendment of the plaint was without jurisdiction and the only course left for it was to return the plaint for its presentation in the proper Court. It accordingly directed for return of the plaint to the plaintiffs pleader. The plaintiffs have accordingly filed this appeal.

3. Sec.16 of the Civil P.C. inter alia, prescribes that suits "for partition of immoveable property .. ... ... shall be instituted in the Court within the local limits of whose jurisdiction the property is situate".

Mr. Jagdish Pandey, appearing in support of the appeal, however, challenged the order on the ground that after the amendment of the plaint, as already stated above, the suit had become competent and maintainable in the Court below by virtue of Sec.17 of the Code as one of the properties was situated within the territorial jurisdiction of the Court below.

The question is, as to whether the amendment itself could have been allowed by the Court below because unless this question is answered in favour of the plaintiffs, the suit undisputedly is beyond the territorial jurisdiction of the Court below. In this connection the difference between the absence of jurisdiction and the error in exercise of it has to be kept in mind, since the existence of jurisdiction is very different from the exercise of jurisdiction. When there is jurisdiction over the person and the subject matter, a decision of all other questions in the cause is only an exercise of that jurisdiction. The question, however, is not res integra and has fallen for consideration in various High Courts. No decision, however, of our own High Court was brought to our notice.

Mr. Jagdish Pandey placed reliance on a decision of the Calcutta High Court in Subodh Kumar Chatterjee V/s. Union of India (AIR 1960 Cal 540), but that was a case of a plaint filed in the Court on its extraordinary original civil jurisdiction and the learned single Judge took the view that amendment of a plaint even in such a case can be allowed because the provisions of Order 7, Rr.10 and 11 were not applicable to a chartered High Court. In that view of the matter amendment of the plaint showing that Court had jurisdiction could be allowed. All the decisions taking a contrary view, of the various High Courts, were distinguished by the learned Judge on this ground alone. It is, therefore, obvious that the authority of the Calcutta High Cour