Report No. 27
Order VI, rule 16
Power to strike off matter which is "frivolous or vexatious" or "an abuse of the process of the Court" has been added, as in the Revised R.S.C.1.
1. See RSC Revision (1962), Order 18, rule 19.
Order VI, rule 17 and amendment beyond jurisdiction
1. The question whether a court can grant leave to amend a plaint if the effect of the amendment would be to take away the suit from the jurisdiction of the court does not seem to admit of a definite answer. One view is, that the court has such a power, and that if after the amendment the court has no jurisdiction to try the suit on the basis of the amended plaint, the plaint could be returned to the plaintiff for presentation to the proper court.1-2-3
2. A contrary view, however, has been taken in certain cases,4-5 holding that the court cannot allow the amendment.
3. A third possible view is that taken in a Nagpur case,6 where the position is discussed in great detail. It was observed there, that "something fundamental" was involved. If the court disallows the amendment simply on the ground that it had no jurisdiction to entertain it, it might be shutting out a claim which was otherwise good, and then the plaintiff would have no remedy in respect of the claim which he sought to add. He would not ask for the plaint to be returned merely because he wanted to make an amendment.
Again, the jurisdiction of a court was determined by the nature of the plaint and once jurisdiction is found, it inheres in the court until something supervenes which ousts it. As against this, the court observed, by allowing an amendment which, taken together with the original claim, exceeded the court's pecuniary jurisdiction, the court was in effect trying a suit beyond its jurisdiction. By adding the new relief, the court in effect amended the plaint as presented, because all amendments relate back to the presentation of the plaint. The court is thereby rendered incompetent to entertain the claim for amendment at all.
Thus, (i) the plaintiff cannot ask for return of the plaint, (ii) the court cannot allow the amendment, and therefore (iii) "the logical procedure to follow would be to return the plaint together with the application for amendment for consideration of that Court which has jurisdiction to consider the original claim and the claim sought by the amendment not taken separate but together".
4. A clarification on the subject appears to be desirable. Necessary amendment is proposed, whereunder the amendment will be dealt with by the court, but it will then return the plaint for presentation to proper court.
1. Nandula Bhavani v. Saladi Mangamma, AIR 1949 Mad 208 (earlier decision of Madras High Court not cited).
2. Kundanmal v. Thikana Siryari, AIR 1959 Raj 146.
3. Goverdhan v. Union of India, AIR 1953 Hyd 212 (215), para. 16.
4. Singapore v. Govindaswamy, AIR 1928 Mad 400.
5. E.R.R.M.H.S. Committee v. P. Atchayya, AIR 1957 AP 10.
6. Lalji v. Narottam, AIR 1953 Nag 273 (Hidayatullah and Kaushalendra Rao JJ.). (Case of pecuniary jurisdiction.)
Order VI, rule 77 and Bombay Amendment
The Bombay Amendment to Order VI, rule 17 provides that (i) where the amendment of a plaint applied for is a material one, the Court shall give notice to a defendant who has not appeared, and (ii) where in the absence of the defendant the Court grants any amendment in a form materially different from that applied for, a copy of the amended plaint shall be served on the defendant.
It is considered that no such provision need be adopted.
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