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MADRAS HIGH COURT
KRISHNASWAMI NAYUDU
S.R.Muthusami Gounder
Versus
T. Krishnaswamy Iyengar
C.S. No. 431 of 1950
Decided On : 9 November, 1951
AMENDMENT OF PLAINT - SUIT INSTITUTED AFTER OBTAINING LEAVE UNDER CLAUSE 12 OF LETTERS PATENT - AMENDMENT SUBSTANTIALLY ALTERING CAUSE OF ACTION - WHETHER AMENDMENT CAN BE ALLOWED - PREVIOUS LEAVE TO SUE - WHETHER NECESSARY FOR AMENDED PLAINT - JURISDICTION OF COURT.
Fact of the Case:
Plaintiff filed a suit for specific performance of a contract for the sale of land and an injunction restraining the second defendant from causing a breach of the contract. The plaintiff sought to amend the plaint to include a claim that the sale to the second defendant was sham and nominal and that he was not a bona fide purchaser for value without notice. The Master refused leave to amend the plaint on the ground that it would substantially alter the cause of action and that the suit having been filed after obtaining previous leave of Court under clause 12 of the Letters Patent, no amendment could be allowed.
Finding of the Court:
The court held that the amendment of the plaint could be allowed as it did not seek to set up an inconsistent cause of action. The court further held that the circumstance that previous leave to institute had been obtained in a suit did not disentitle the plaintiff from asking for an amendment of the plaint in the suit so instituted.
Issues: 1. Whether an amendment of the plaint can be allowed in a suit instituted after obtaining leave under clause 12 of the Letters Patent, where the amendment substantially alters the cause of action? 2. Whether previous leave to sue is necessary for an amended plaint?
Ratio Decidendi: 1. The grant of leave under clause 12 of the Letters Patent is a judicial act, which must relate only to the cause of action contained in the plaint, as presented to the Court at the time of the grant. 2. Such leave affords the very foundation of the jurisdiction and would not be available to confer jurisdiction in respect of a substantially different cause of action, which was not and could not have been judicially considered at the time it was granted. 3. However, it does not necessarily follow that in respect of such a different cause of action, leave under clause 12 cannot be granted after the institution of the suit, and that, therefore, the Court cannot try such a different cause of action, except in another suit duly instituted. 4. The language of Clause 12, nor the principle of providing for leave before a suit is tried would necessitate such a conclusion. 5. In cases, where leave is required, in order to enable the High Court to have jurisdiction, right is conferred on the High Court in its ordinary original civil jurisdiction, to receive, try, and determine such suits, provided the leave of the Court is previously obtained. 6. Therefore the grant of leave must be made before the High Court receives, tries and determines the suit and the grant ipso facto vests jurisdiction to receive, try and determine such suits. 7. The leave, therefore, must be prior to such receipt, trial and determination, and not after, and must necessarily relate to the cause of action on which the suit is based. 8. There is nothing to show that a plaint instituted under clause 12, would not include an amended plaint, and if an amended plaint after obtaining leave to amend is to be received and the cause of action arising therein is to be tried and determined, which cannot be done since previous leave is required which alone confers jurisdiction, there is no reason why such leave to present an amended plaint should not be granted under clause 12 on a fresh application stating the cause of action on which the amendment has been applied for and the reasons for grant of leave under clause 12.
Final Decision: The court allowed the appeal and set aside the order of the Master. Leave to amend the plaint was granted. The court also granted leave to sue on the basis of the plaint as sought to be amended.
ORDER :- These are two applications taken out by the plaintiff. One is an appeal against the order of the Master refusing leave to amend the plaint and the other is for leave to sue on the basis of the plaint sought to be amended.
2. The suit is for specific performance of a contract for the sale of certain lands in Salem District entered into at Madras, and for an injunction restraining the second defendant from bringing about a breach of the said contract. Application No. 260 of 1951 was filed by the plaintiff for amendment of the plaint consequent on the plaintiff having been made aware subsequent to the suit that the second defendant claimed to be purchaser of the same property under a sale deed executed in his favour on the 28th September 1950. The plaint is, therefore, sought to be amended by stating that the sale is sham and nominal, and, in any event, the second defendant is not a bona fide purchaser for value without notice, and for directing the execution of the sale deed not only by the first defendant, but also by the second defendant.
3. The application was opposed on the grounds that the amendment could not be allowed, as it substantially alters the cause of action, secondly, that the amendment would covert the suit into a suit for land, and this Court would not have jurisdiction to try the suit, and, thirdly, that in any event, the amendment petition was incompetent, as it was filed without previously obtaining leave of Court to sue in respect of the suit as proposed to be amended. The learned Master held in favour of the plaintiff on the first two contentions, but dismissed the application on the ground that as amendment substantially alters the cause of action, the suit having been filed after obtaining previous leave of Court under clause 12 of the Letters Patent, no amendment could be allowed. The learned Master, however, observed that he considered the question as to whether he should grant the plaintiff an adjournment to enable him to apply for leave to sue in regard to the amendment sought but as the obtaining of the leave was a condition precedent to the presentation of the application for amendment, he considered that no purpose would be served by an adjournment.
4. I am in agreement with the learned Master that but for this objection raised as regards the non-obtaining of leave to sue, the amendment ought to be granted, as it does not seek to set up an inconsistent cause of action, and the amendment has, therefore, to be allowed. I have only to consider whether the amendment should be rejected for the reason that this being a suit instituted after obtaining leave to sue under clause 12 of the Letters Patent, no further amendment can be ordered and any cause of action to which the plaintiff has become entitled could only be adjudicated in a separate suit.
5. Clause 12 of the Letters Patent provides that
"the High Court, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description............if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the High Court........................"
6. Leave was obtained initially before the institution of the suit. The plaintiff now seeks an amendment of the plaint which he would ordinarily be entitled to but for this objection raised. Does the circumstance that previous leave to institute has been obtained in a suit disentitle the plaintiff from asking for an amendment of the plaint in the suit so instituted? There are three decisions which were referred to by the learned Master and relied upon as establishing the proposition that no amendment could be allowed in a suit so instituted.
7. It is held in RAMPURTAB v. PREMSUKH, 15 Bom 93, that the grant of leave under clause 12 of the Letters Patent is a judicial act, which must be held to relate only to th
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