A court should allow an amendment to a plaint even if it results in the loss of jurisdiction, and then decide whether it has jurisdiction to try the suit.

ORDER :- This petition is directed against an order of the First Additional District Munsif, Madurai Town, refusing to allow an amendment of the plaint. The suit as laid was for a permanent injunction on the footing that the plaintiff was in possession and that the defendant should be restrained from interfering with it. There was an application for an interim injunction pending disposal of the suit and in the counter affidavit, it seems to have been alleged by the defendant that he was in possession. Thereafter the plaintiff filed the application to add a prayer for recovery of possession. The dismissal of the application was grounded on the supposition of the Munsif that the suit site appeared to have potential value as house site and if the amendment were allowed, the value for the purpose of jurisdiction would probably exceed the Court's powers. On that view the Munsif directed the plaint to be returned for presentation before the Court of the Subordinate Judge of Madurai, which alone, according to him, had jurisdiction to try this suit. There was a further direction that the plaint should be made ready by 16-1-1968 and when the Munsif found that it was not so ready, he dismissed the application.

2. In my view, the order of the Court below cannot be sustained. A Commissioner appointed for the purpose reported the value of the property to be only Rs. 1988. This value was not objected to by the plaintiff. The Court below examined a certain document and with reference to it, and the situation of the suit property, speculated that it had potential value as house site and its value might possibly exceed its jurisdiction. It gave no definite finding as to the value of the property. That being the case, I fail to see how the Court below could return the plaint. For ought we know the plaintiff may choose to continue the suit without pressing for the amendment. Apart from that, it is only as and when the plaint is amended and the Court below finds that the plaint as amended is in excess of its pecuniary jurisdiction that the question of returning the plaint could arise. In that case, the plaint could be treated, as I think as one presented to a Court having no jurisdiction, with the concomitant result that the Court will have to return it for representation to the proper Court. But the Court below in this case has acted too soon before it considered the amendment and ordered it. The point is that so long as the amendment is not allowed, it would be nobody's case that the unamended plaint would be without the jurisdiction of the Court, and it would follow from it that it has no jurisdiction at all to return the plaint unless the plaintiff himself wanted a return of it for presentation to a different Court. That being the case, the further consequential order dismissing the application is also bad.

3. Sri Hariharan for the respondent contends that where allowing an amendment of a plaint sought for will result in deprivation of the jurisdiction of the Court allowing it, the amendment should not be allowed. I do not think that this proposition is supported by Singara Mudaliar v. Govindaswami Chetty, 54 Mad LJ 145 : (AIR 1928 Mad 400) and Nagutha Md. Nainar v. Vedavalliammal, 1959-1 Mad LJ 307, which he relies on. The first of them related to the Original Side of this Court acting as a transferee Court from the City Civil Court in respect of a plaint. Venkatasubba Rao, J. referred to Annie Besant v. Narayaniah, ILR 38 Mad 807 : (AIR 1914 PC 41), which held that the powers of the High Court, in dealing with suits transferred under Cl. 13 Letters Patent, would be the powers which, but for the transfer, might have been exercised by the Court, from which the transfer was made, and posed the test, in view of that decision, if the amendment sought for was allowed by the Original Side of the High Court, it would take it ipso facto outside the jurisdiction of the City Civil Court. The learned Judge considered that if the answer was affir