A court may allow an amendment to a plaint even if the plaint as it stands discloses no cause of action within the jurisdiction of the court, provided that the amendment does not cause injustice to the defendant.

( 1 ) THIS is an application for the amendment of a plaint tiled in the year 1951. The plaintiff Subodh Kumar Chatterjee filed this suit against the Union of India for recovery of Rs. 12500/- as damages for shortage of ground-nut oil booked by the plaintiff at Sealdah Station in December 1949 to Silchar in Assam. The plaintiff relies on a certificate of shortage issued by the Assam Railway on 18-6-1950. In paragraph 6 of the plaint the plaintiff states that "notice under Section 77 of the Indian Railways Act, has been duly served by the plaintiff on the Company" meaning (East India Railway Administration) "and the said Assam Railway at Calcutta within the jurisdiction". In paragraph 7 the plaintiff states "notice under Section 80 of the Code of Civil Procedure, has been duly given to the defendant" and in paragraph 8 "inasmuch as part of the cause of action herein arose in Calcutta within the jurisdiction aforesaid and pleaded in paragraph 6 hereof, the plaintiff craves for leave under Clause 12 of the Letters Patent". The application has been made nearly eight years after the institution of the suit by adding to paragraph 7 above the following sentence: "the said notice was served upon the defendant through the General Manager E. I. R. at 17, Netaji Subhash Road, Calcutta, within the ordinary civil jurisdiction of this Hon'ble Court". Further in paragraph 8 of the plaint the plaintiff desires to insert the figure 7 by deletion of the figure 6.

( 2 ) THERE can be little doubt that the plaintiff has made this application on the basis of the judgment in Bansi v. Governor-General-in-Council, wherein it was held that service of notice under Section 77 of the Indian Railways Act does not form a part of the cause of action for a suit. All that the plaintiff really wants is that he should be allowed to plead that notice under Section 80 of the Code of Civil Procedure was served within the jurisdiction of this Court. Service of such notice is an essential pre-requisite to a proper suit and without such averment a suit against the Union of India would be thrown out on demurrer,

( 3 ) THE point argued on behalf of the defendant is that as the plaint stands today, it discloses that no part of the cause of action for the suit has arisen within the jurisdiction of this Court, and as such this Court is not competent to try the suit. It was argued that the present application for amendment, although a very simple one, cannot be allowed to foe made if this Court finds that it has no jurisdiction to entertain the plaint as filed.

( 4 ) RELIANCE was chiefly placed on a decision of the Allahabad High Court in the case of Tirkha v. Ghashiram, AIR 1935 All 842. In this case the suit was filed on 2-7-1934 in the Small Causes Court of Muzaffarnagar for recovery of Rs. 553/8/- i. e. , in excess of the pecuniary jurisdiction of the Court. The defendant took the plea that the court could not entertain the suit. The plaintiff then made an application for amendment of the plaint reducing the claim to Rs. 500/ -. This application was allowed. The learned Judge of the Allahabad High Court in revision held that the order allowing the amendment of the plaint was made without jurisdiction following two decisions of the Madras High Court in Varuda Pillai v. Thillai Govinda Raja Pillai, AIR 1931 Mad 8 and Ramanna v. Amireddi, AIR 1931 Mad 67. In both these cases the question related to the pecuniary jurisdiction of the court. In the first case on the plaint being returned to the plaintiff for presentation to the proper court he amended the plaint by striking off one relief so as to bring the suit within the jurisdiction of the court. In the second case the court found that the plaintiff's valuation was wholly inadequate and directed him to pay enhanced court-fees. It was observed in the second case ( see at page 69)"when the court finds that on the correct valuation, the plaint is not cognizable by it, it seems to us that the proper thing to