The court should not reject an amendment solely on the ground of ousting jurisdiction, and the jurisdiction is ousted only when the plaint is amended.

1. The short question that poses for consideration in this Civil Revision Petition filed by the defendant is whether a court, before which a suit which it is competent to entertain, try and dispose of is pending, could order an amendment of the plaint involving ouster of its jurisdiction.

2. The suit is one for injunction filed by the proprietor of a cinema theatre to restrain the defendant a film distributor, from exhibiting his films in the locality other than the theatre of the plaintiff on the basis of an agreement. The application for temporary injunction filed by him was dismissed and the order has become final by dismissal of the appeal. The application then tiled by him for withdrawal of suit with permission to file a fresh one was also dismissed in the absence of grounds under 0.23 R.1. That order has also become final. Then he filed an application for amendment of the plaint incorporating the terms of the agreement and including a prayer for specific performance of the agreement. That was opposed by the revision petitioner on grounds of maintainability, lack of bona fides, change of character of suit, substitution of cause of action and ouster of jurisdiction of the court by amendment. Rejecting all these contentions the prayer for amendment was allowed and the revision is directed against that order.

3. Though several objections were taken by the revision petitioner before the trial court the only ground urged before me on his behalf by Shri. T.R. Kelu Nambiar was the one based on ouster of jurisdiction of the court by allowing the amendment. The decision of a Single Bench of this Court in Sreedharan v. P.S. Job (AIR 1969 Kerala 75)-(1968 KLT 479) followed by another Single Judge in Ponnumani and Others v. Narayanan Nair (1985 KLT 374) : (1985 KLJ 459) is against his contention and therefore his request was that the matter may be referred to a larger bench since he is of the view that these decisions require reconsideration. The learned Advocate pointed out 'that this is a legal question on which there is sharp divergence of opinion between various High Courts in India.

4. A Single Bench of the Madras High Court in Singara v. Govindaswami (AIR 1928 Madras 400) observed that no court will permit a plaint to be so amended as to oust its own jurisdiction to try the suit. That decision was followed by another Single Judge of the same Court in Nagutha Mohemmed Nainan v. Vedavalli Ammal (1959 (1) MLJ 307). The Andhra Pradesh High Court in ERRMHS Committee v. P. Atchayya (AIR 1957 AP 10) (SB) followed the decision in Singara's case (AIR 1928 Madras 400). A Division Bench of the Nagpur High Court in Lalji v. Narottam (AIR 1953 Nagpur 273) also took the same view and said when the court is faced with the question of allowing an amendment which taken together with the original claim exceeds its pecuniary jurisdiction, it should return the plaint together with the application for amendment for the consideration of the court having jurisdiction to consider the original claim and the claim sought by the amendment not taken separately but together. That decision also held the view that if the amendment ousting jurisdiction is allowed, it is in effect trying a suit beyond its pecuniary jurisdiction. The learned judge also said:

"By additing the new relief which the plaintiff claims, the court in effect amends the plaint as presented, because it is also well settled that all amendments relate back to the presentation of the plaint. This clears the difficulty because the court is thereby rendered incompetent to entertain the claim for amendment at all."

Rachhya Singh v. R.R.B.P. Singh (AIR 1973 Patna 179) also took the view that such an amendment cannot be allowed.

5. Another decision of the Madras High Court in Nandula Bhavani v. Saladi Mangamma (AIR 1949 Madras 208) took the view that where the claim was originally within the jurisdiction of the court but falls outside it as a result of the amendment, the court should, if th