HANAMANTHAPPA AND ANR. versus CHANDRASHEKHARAPPA AND ORS. on 3 February 1997

A

HANAMANTHAPPA AND ANR. v. CHANDRASHEKHARAPPA AND ORS.

FEBRUARY 3, 1997

B [K. RAMASWAMY AND G.T .. NANAVATI, JJ.]

Code of Civil Procedure, 1908.:

Order VII Rllle 10-A, Order VI Rule 17-Plaintfiled-Lack oftenitorial c [jurisdiction_.,_P/aint ][retumed ][for ][presentation ][to ][the ][proper ][Cowt-Filed ][in ][the ]proper cowt with amendment~Plea that the plaint was mate1ially altered withollt pennission for amendment-Petition dismissed by High Cozin-On appeal held, suit filed afresh subject to the limitation, pecuniary jurisdiction and payment of coult fee-Hence it cannot be dismissed on the ground that . the plaintiff made avennents which did not find place in the original plaint-It D is not always 11ecess(11y for the plaii1tiff to seek amendmellt of the plaint-At best it collld be treated to be a fresh plaint and the matter could be proceeded with according to law.

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)

E [No. ][1535 ][of ][1997. ]

From the Judgment and Order dated 5.9.96 of the Karnataka High Court in C.R.P. No. 1650 of 1996.

S.K. Kulkarni for Ms. Sangeeta Kumar for the Appellants.

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The following Order of the Court was delivered :

This Special Leave Petition arises from the judgment of the Kar-nataka High Court, made in C.R.P. No 1650/96 on July 9, 1996.

Admittedly, the respondents filed O.S. No. 158/94 in the Court of G District Munsiff, Navalagund. On grounds of lack of territorial jurisdiction the plaint was returned for presentation to the proper court. Accordingly, after making necessary amendment to the plaint the respondents repre-sented the suit, which came to be numbered as O.S. No. 10/91, in Civil Court at Dharwad. The petitioners filed an application under Order VII, H [Rule ][10, ][CPCfor ][dismissal of the petition on the ground that the plaint ]846

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was materially altered, without seeking permission for amendment of the A plaint as required under Order VI Rule 17, CPC. The High Court dis-missed the petition.

It is contended by Shri Kulkarni, learned counsel for the petitioners, that since the petition had been filed with amended averments in the plaint, B necessarily it must· be treated to be a fresh plaint and not one after representation to the proper court. We find no force in the contention. The object of Order VII, Rule 10-A is that the plaintiff, on return of the plaint, can either challenge in an appellate forum or represent to the court having territorial jurisdiction to entertain the suit. In substance, it is a suit filed afresh subject to the limitation, pecuniary jurisdiction and payment of the c court fee as had rightly been pointed out by the High Court. Therefore, it cannot be dismissed on the ground that the plaintiff made averments which did not find place in the original plaint presented before the court of District Munsiff, Navalagund. It is not always necessary for the plaintiff to seek amendment of the plaint under Order VI, Rule 17, CPC. At best it can be treated to be a fresh plaint and '.he matter can be proceeded with D according to law. Under those circumstances, we do not think that there is any error of law committed by the High Court in giving the above direction.

The -special leave petition is accordingly dismissed.

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Petition dismissed.

G.N.