Mohammed Yawar Yunus vs Md. Yasum Yunus and Others

S.N. Pathak, J.—This revision is directed against the order dated 15.9.99 passed by Execution Munsif, Patna in Misc. Case No. 47/96.

The aforesaid Misc. Case was filed u/s 47 CPC in which there was a petition by the applicant of that Misc. Case under Order 6 Rule 17 of the CPC for amendment in the original application. The amendment sought was to the effect that the decree passed in the suit was beyond the jurisdiction of the Munsif, the valuation of the suit land having stood at not less than Rs. 3/- lacs. The learned Execution Munsif held that this amendment in the original application did not amount to any new pleading and the applicant opposite party of this revision can introduce such an amendment at any stage.

Now the point is whether the learned Ex. Munsif is justified in his finding that any amendment of a pleading can be allowed even though there was no pleading to the new fact to be introduced by the proposed amendment. The settled principle of law is that no amendment can be allowed which changes the nature of the original pleading. In the instant case paragraph No. 23A was sought to be added in the original application u/s 47 of the CPC to the effect that the Court of Munsif which passed the original decree had no jurisdiction to try the same, the valuation of the suit land being not less than 3/- lacs. It is to be noted in this connection that the point of jurisdiction territorial or pecuniary has to be decided at the initial stage of the suit itself and this point ought to have been raised by the Defendant of the concerned suit at the very initial stage of the hearing of the suit. Question of valuation is a matter of fact and that can be decided on the basis of the evidence oral or documentary. Admittedly this was not done in the concerned suit and the learned Munsif who tried the suit and, passed a judgment and decreed the suit. The opposite party of this revision who were the applicants in the concerned Misc. Case did not also raise the plea of jurisdiction of the Court which passed the decree in the original application. So when they were introducing this fact, that was certainly a new ground of attacking the decree which would certainly change the nature of the original application. Moreover, the Execution Court cannot go behind the decree, nor can it set aside the decree on the ground of jurisdiction.

So, I think the amendment sought by the opposite party of this revision was legally fit to be disallowed.

In the result, I think this revision has merit. It is, accordingly allowed and the impugned order is set aside.