Prahlad Prasad Nag vs Raghunath Prasad and Others

Inder Sen Israni, J.—This is a revision petition u/s 115 CPC against the order dated 3rd September, 1986, passed by learned additional Civil Judge No. 1, Jaipur City in Civil Suit No. 104/74, rejecting the plaintiffs application for amendment of the plaint.

I have heard the learned Counsel for the petitioner. None appears on behalf of the respondents inspite of service of notice for admission and disposal of this petition.

Late Shri Kalu Ram, plaintiff filed a regular civil suit for possession and mesne profits against the non-petitioners for certain apartments in a house bearing Municipal No. 1171-74 situated in Jaipur. The suit was filed on 17-8-1974 and the plaintiff Kalu Ram died on 19-7-1974. The petitioner applied for substitution on the basis of Will dated 30-4-1972. This matter regarding substitution came to the level of this court and it was decided that he is entitled to be substituted in place of late Kaluram. The written statement was therefore, filed by the non-petitioner as late as 14-2-1983. An application for amendment of plaint was filed by the petitioner on 24-5-1986 in which a prayer was made that the defendants have subsequently taken possession of memo more apartments in the same property and therefore this amendment may be permitted to be made in the suit since the suit was filed for possession of certain other apartments in the same property of which the possession had already been taken by the non-petitioner defendants.

This application was opposed by the non-petitioner and after hearing both the parties and learned trial court rejected the application on the ground that amendment application has beyond limitation and further if the amendment is permitted to be allowed suit will be beyond the pecuniary jurisdiction of the trial court.

The contention of Shri R.C. Kasliwal, learned Counsel for the petitioner in that the learned trial court has misconceived both the findings. He contends that the amendment is well within limitation and Article 68 of of the Limitation Act, 1963 will be applicable in such a case and accordingly the petitioner has 12 years limitation for recovery of possession of immovable property from the date when the possession of the defendants become adverse to the plaintiff. It is pointed out that evidently the petitioner stepped into the shoes of the plaintiff on account of the Will which become effective only after death Late Kalu Ram on 19-7-1974. It is pointed out that the application for amendment was filed on 8-5-1986 and is thus well within 12 years. It is also pointed out that even if for the take of argument the limitation is counted from the date of filing of suit on 27-5-1974, still the application is well within limitation. It is therefore, clear that the application is not beyond limitation as held by the trial court. My attention has been drawn to the authority of Kundan Mal and Ors. v. Thikana Siryari and Ors. AIR 1950 Raj. 146 in which it was held by this court as under:

It is true that if the suit as framed was beyond the jurisdiction of the lower courts, they should have no jurisdiction to make any amendment. However, where from the plaint as it stands, it cannot be said that the lower court had no jurisdiction in the suit when it was filed the lower court would be perfectly justified in exercising their powers of amendment, even though the occurrence of the amendment would be that the suit might become beyond the jurisdiction of the courts. If as a result of amendment, the suit becomes one not cognizable by civil courts, they would have to return the plaint for prosecution to proper court.

The contention of the learned Counsel therefore, is that in this case also the proper course for the learned trial court was to have allowed the amendment and thereafter returned the plaint for presentation to the proper court.

Keeping in view the above discussion, I am of the opinion that the application filed by the petitioner is within limitation as Article 65 of the Indian Limitation Act shall be applicable to the same. In view of the law quoted above for the proper course for the trial court will be to allow the amendment as applied by the petitioner and thereafter return the plaint to the plaintiff for presentation to proper court.

In the result, the order of the trial court dated 3-9-1986 is set-aside, the application for the amendment of the plaint filed by the petitioner is allowed. The petitioner will file amended plaint in the trial court and also pay proper court fees on the same. Thereafter, the trial court shall return the plaint for presentation to the proper court.

In the result the petition is allowed.