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Judgment
Sankaran Nair, J.—The plaint in the suit for a declaratory decree was admitted on the 1st March. On the 9th August the District Judge
passed an order returning the plaint for amendment within 10 days, as he was of opinion that when the suit was instituted the plaintiffs were able to
seek further relief than a mere declaration.
I am asked to set aside that order in revision. It is urged before me that the plaintiffs were not entitled to possession and the dispossession was
subsequent to the 18th March. If this is so, the District Judge is wrong in holding that the suit for declaration will not lie. But I have not heard the
Respondents'' pleader on this question, as I propose to set aside the order on another point. The plaintiffs'' pleader represented to the District
Judge that he was unwilling to amend the plaint and therefore did not want the plaint to be returned for that purpose. In these circumstances the
District Judge has no jurisdiction under the Code to direct the plaint to be returned for amendment. A plaint may be returned for amendment if a
party applies for it. (Order VI Rule 17.). Under that provision of law it is not open to the District Judge to insist upon the party amending the plaint
for the obvious reason that if he refuses to do so the District Judge has no means of carrying out his order. He can only reject the plaint or dismiss
the suit. This he should have done when the pleader declined to amend the plaint.
The case does not fall within Order VI Rule 16. Nor does Section 153 apply, under that section the court itself may make any amendment.
Here it is obvious it is not open to the court of its own accord to convert the suit for declaration into one for possession. Then it is urged that this is
only an interlocutory order and the plaintiffs should have waited for the period allowed for amendment when their plaint would have been rejected.
Then it would have been open to them to appeal, when this Court might have dealt with the question on its merits, and decided whether the District
Judge was right in holding that the suit for declaration will not lie. This in my opinion would undoubtedly have been the proper course as it is
possible that, when this order is set aside, the District Judge will reject the plaint and the petitioner will have to come to this court for a decision on
the question whether a suit for declaration will lie. But as it appears that the order was passed without jurisdiction, I must interfere. I therefore set
aside the order direction the plaint to be returned for amendment and direct the District Judge to restore the suit to its file and dispose of it
according to law. No order is made as to costs.