HON’BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.5531 of 2009 Dated: 30-03-2010 Between: Gangasani Remesh Reddy & others. … Petitioners And Gangasani Padma Reddy & others. … Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.5531 of 2009 ORDER: This revision, under Article 227 of the Constitution of India, is filed by the defendants in the suit in O.S.No.165 of 2001 on the file of the learned Principal Junior Civil Judge, Jangaon, aggrieved by the order, dated 9th November 2009, passed in I.A.No.297 of 2009. 2. By the aforesaid order, the trial Court allowed the application filed by the respondent/plaintiffs under Order VI Rule 17 of C.P.C., and permitted them to carry out the amendments in the plaint. 3. Necessary facts, in a nutshell, are as under : The suit in O.S.No.165 of 2001 is filed by the respondents herein, only against the 1st petitioner herein, seeking perpetual injunction orders in respect of agricultural land admeasuring about 126 acres. It is the case of the respondent/plaintiffs that the suit properties were acquired by their father Purushotham Reddy, and as much as their brother Ramesh Reddy was taken in adoption by one Gangasani Narayana Reddy on 10.11.1963, the said Ramesh Reddy has no right over the suit properties. Ramesh Reddy, the 1st petitioner herein, has filed written statement in the suit, disputing the allegation of respondent/plaintiffs with regard to adoption. It was his case that he was never given in adoption, and that, being the younger son of Late Purushotham Reddy, he has also got 1/4th share in the suit properties. In view of such a defence by Ramesh Reddy, an additional issue was framed to the effect that whether the 1st petitioner/defendant No.1 was taken in adoption by Gangasani Narayana Reddy. After filing of written statement, the 1st petitioner/sole defendant died during the pendency of the suit and petitioners 2 to 4 herein were brought on record as his legal representatives. The additional issue is framed while allowing the I.A. filed by the respondents in I.A.No.237 of 2008. The Court below, while allowing I.A.No.237 of 2008, left it open to the respondent/plaintiffs for seeking necessary amendments in the prayer of the suit and also for payment of necessary Court fee, in view of framing of the additional issue. When the respondents have not taken any steps for amendment of plaint and also for payment of necessary Court fee, the petitioners have filed I.A.No.160 of 2009 under Section 151 C.P.C., requesting the Court to give directions to the respondent/plaintiffs for amendment of plaint and also for payment of requisite Court fee. By an order dated 31st of August 2009, the trial Court has disposed of the said I.A., by intimating the counsel for respondent/plaintiffs for return of the plaint and also to file application under Order VII Rule 10(A)(2) of C.P.C. But, before filing of an application under Order VII Rule 10(A)(2) of C.P.C., the respondent/plaintiffs have filed an application in I.A.No.297 of 2009, for amendment of plaint to amend the relief portion from the caption of ‘suit for perpetual injunction’ to that of ‘declaration and consequential injunction’, and certain other amendments are also sought for with regard to valuation for the purpose of jurisdiction, etc. The Court below, by impugned order, allowed the said application. In the application filed in I.A.No.297 of 2009, counter affidavit is filed on behalf of petitioners herein, mainly, opposing the application on the ground that as much as already the Court below has ordered for return of plaint and directed the respondent/plaintiffs to file an application under Order VII Rule 10(A)(2) of C.P.C., the trial Court is not having pecuniary jurisdiction, to entertain the amendment application also. Inspite of such a defence taken by the petitioners/defendants, the Court below has allowed the application by impugned order. 4. In this revision petition, it is contended by the learned counsel appearing for petitioners that in view of framing of additional issue, and as per the valuation certificate with regard to subject lands, as the trial Court was not having jurisdiction to entertain the suit, it has ordered for return of the plaint. As such, the trial Court ought not to have entertained the application to order amendment as it lacked pecuniary jurisdiction to try the suit itself. In support of his arguments, the learned counsel has relied on the judgment of a learned Single Judge of this Court in C.R.P.Nos.1372 and 2460 of 2002, dated 13th November 2002, which was rendered basing on the earlier judgment of a learned Single Judge of this Court in the case of M/s.Padmanabha Talkies, Kakinada Vs. M/s.Gowthami Pictures, Vijayawada[1]. 5. On the other hand, it is contended by the learned counsel appearing for respondents that as much as no application was filed under Order VII Rule 10(A)(2) of C.P.C., as such, the trial Court is not seized of the suit, hence, it has got jurisdiction to consider the application for amendment of plaint. It is further submitted that unless the proposed amendments are permitted and the plaint is amended, it cannot be said that the Court below has lost jurisdiction on the ground of pecuniary limits. In support of his arguments, the learned counsel for respondents has relied on the judgment of a learned Single Judge of this Court in the case of B. Ranga Rao Vs. M/s.The American Refrigerator Company[2] and in the case of Tanubuddi Narasimha Reddy Vs. Vonteddu Venkatareddi[3], and also on a judgment of the learned Single Judge of Calcutta High Court in the case of Vivekananda Nidhi Vs. Smt. Ashima Goswami[4]. 6. I have perused the detailed order passed by the Court below and also the provisions under Order VII Rule 1, and Order VII Rule 10(A)(2) of C.P.C. Order VII Rule 1 enumerates the particulars to be contained in the plaint. Under Order VII Rule 1 (i), there is a specific reference with regard to particulars on the value of the subject matter of the suit, for the purpose of jurisdiction and Court fee. In the case on hand, it is to be noticed that at first instance, suit is filed only for perpetual injunction on the ground that suit schedule properties are the exclusive properties of respondent/ plaintiffs, as they have succeeded to the same from their father Sri Purushotham Reddy. It was their case that the 1st petitioner/defendant was adopted by Sri Gangasani Narayana Reddy, as such, he is not having any right over the properties. When such adoption is denied in the written statement filed by the 1st defendant during his life time, respondents have filed an application in I.A.No.237 of 2008, to frame an additional issue. While allowing the said I.A., the trial Court itself has asked the plaintiffs to take steps for amendment of plaint and also to pay necessary Court fee. On the ground that no steps were taken for carrying out the amendment, petitioners themselves have filed I.A.No.160 of 2009, which was disposed of by the Court below, intimating the parties, the decision of the Court for return of plaint with an observation to file an application under Order VII Rule 10(A)(2) of C.P.C. Though such an observation is made, the application was not filed for return of plaint and the plaint was not yet returned. At that point of time, the application is filed by the respondent/plaintiffs in I.A.No.297 of 2009 for amendment of plaint. 7. Unless and until the amendment, which was proposed to be carried out in the plaint, is allowed to come on record, the averments in the plaint, as filed at first instance, remain un- altered. In that view of the matter, it cannot be said that the Court below did not have jurisdiction to consider the application for amendment. The cause for return of plaint will arise only after the amendments are ordered. So long as the averments as averred at first instance continue, there is no cause for the Court to order for return of plaint. More particularly, in the light of requirement for mentioning the statement of value of the subject matter of the suit for the purpose of jurisdiction, as contained in Order VII Rule 1(i) of C.P.C., it cannot be said that before amendment, the parties cannot be driven to move application for amendment only after presentation in proper Court. In the absence of permitting the amendments to come on record, there will not be any cause for the trial Court even to order for return of plaint. In that view of the matter, the trial Court has correctly considered the application and allowed the same. 8. Though a learned Single Judge of this Court in C.R.P.Nos.1372 and 2460 of 2002 has taken the view that application for amendment is to be presented after return of the plaint, basing on the earlier judgment in the case of M/s.Padmanabha Talkies (1 supra), but in the aforesaid judgment, the requirement of Order VII Rule 1(i) is not taken note of. Further, in the case of B. Ranga Rao (2 supra), a learned Single Judge of this Court has taken the view that after allowing the amendment, if the Court comes to the conclusion that it has no jurisdiction, it can return the plaint for presentation in proper Court. Similarly, in the case of Tanubuddi Narasimha Reddy (3 supra), a learned Single Judge of this Court has considered the scope of Order VII Rule 17 of C.P.C. with reference to power of Court to order for return of plaint under Order VII Rule 11, and held that the power to amendment as contained under Order VI Rule 17, is not controlled or restricted by order VII Rule 11. In the said judgment, a learned Single Judge of this Court has categorically held that the Court has got power to order for amendment of pleadings so that it should disclose a cause of action. 9. Similarly, in the judgment of Calcutta High Court in the case of Vivekananda Nidhi (4 supra), a learned Single Judge has answered in affirmative, while considering the question namely, whether the Court was empowered to allow amendment which resulted in ousting its own jurisdiction in the matter. 10. In view of the judgments referred above, the contention advanced by the learned counsel for petitioners that the Court below has allowed the application without jurisdiction, cannot be accepted. Though there was an order in I.A.No.160 of 2009, intimating the counsel for respondents to file an application for return of plaint under Order VII Rule 10 (A)(2) of CPC, but, so long as such an application is not filed and the plaint is not returned, the Court can still consider an application for amendment. Even to order return of plaint under pecuniary jurisdiction, the Court can do so only after the amendments are carried out in the plaint, but not otherwise. Undisputedly, as per the averments made in the plaint, without proposed amendments, the trial Court has got the jurisdiction, as such, the Court below has rightly entertained the application filed by the respondent/ plaintiffs for amendment of plaint, and allowed the same. 11. For the aforesaid reasons, I do not find any illegality in the order passed by the Court below, which warrants interference by this Court in this revision filed under Article 227 of the Constitution of India. The revision is devoid of merit and it is accordingly dismissed. No order as to costs. ______________________ R. SUBHASH REDDY, J 30th March 2010 ajr [1] 1971 APLJ 375 [2] 1970 (1) APLJ 408 [3] 1970 (2) APLJ 313 [4] 1998 (1) CCC 80 (Cal.)