Chagla, C.J:—
This is an appeal from an order of Mr. Justice Tendolkar granting leave to the plaintiffs to amend the plaint. A preliminary objection is taken by Mr. Manecksha that the order does not constitute a judgment within the meaning of cl. 15 of the Letters Patent and no appeal lies.
Now, the same question came up before a bench of this Court consisting of Sir Harilal Kania, Acting Chief Justice as he then was, and myself, in Sheshgiridas Shanbhag v. Sunderrao, and we held that allowing an amendment of the plaint was not a judgment within cl. 15 of the Letters Patent. Mr. Seervai has tried to distinguish this judgment. According to him we were dealing there with a case where the contention was that the order made by my brother Coyajee J. granting leave to amend the plaint allowed matters to be pleaded which went beyond the scope of the suit, and we held that assuming the learned Judge was wrong in allowing the amendment, the most that could be said was that he had improperly exercised the discretion vested in him to make the order under O. VI, r. 17. The contention was put forward in that case that Mr. Justice Coyajee had no jurisdiction to make the order that he had made. That contention was rejected by us. Mr. Seervai says that in the present case the plaint discloses no cause of action and the learned Judge by allowing the amendment of the plaint has permitted the plaintiffs to plead facts which would give them a cause of action, and according to Mr. Seervai once the plaint does not disclose a cause of action, the plaint is liable to be dismissed and must be dismissed and the Court has no jurisdiction to allow an amendment of the plaint. Therefore, Mr. Seervai says that whereas in Sheshgiridas Shanbhag v. Sunderrao no question of jurisdiction of the Judge arose, in the case before us now the question of his jurisdiction does arise. For the purpose of this appeal we are assuming that the plaint did not disclose a cause of action although the learned Judge has held that the cause of action was defective and by the amendment which he allowed the defect was cured.
Now; apart from authority, turning to the scheme of the Civil Procedure Code, O. VI, r. 17 is very wide in its terms and it gives power to the Court to allow either party to alter or amend his pleadings in order that the real questions in controversy between them should be adjudicated upon. Mr. Seervai relies on O. VII, r. 11, which provides that the plaint shall be rejected in the cases mentioned in that rule and the one with which we are concerned is where it does not disclose a cause of action. Mr. Seervai's argument is that when a plaint comes before the Court and that plaint does not disclose a cause of action, it is mandatory upon the Court to reject that plaint and dismiss the suit and the Court has no power to permit the plaint to be amended. In other words, Mr. Seervai's contention is that O. VI, r. 17, is controlled by O. VII, r. 11, and in cases falling under O. VII, r. 11, the Court has no jurisdiction to order the amendment of the plaint. I am unable to accept that contention. I see no reason whatever why the power of the Court to allow amendment of pleadings should be in any way restricted or controlled by the provisions contained in O. VII, r. 11. It is perfectly true that it is incumbent upon the Court to reject a plaint that does not disclose a cause of action, but it does not follow that it is not open to the Court to allow a plaint to be amended so that it should disclose a cause of action. It is only when a plaint does not disclose a cause of action that the Court is called upon to exercise its power under O. VII, r. 11. But the Court may prevent the operation of O. VII, r. 11, and may save the plaint being rejected by exercising its power under O. VI, r. 17, and allowing the plaint to be amended. It would indeed be an extraordinary proposition to lay down that if various averments had to be made in the plaint which would go to constitute a cause of action, and by some oversight or some mistake the plaintiff failed to make one of the averments, then in that case the plaint must be dismissed and the plaintiff could not apply for an amendment and make the necessary averment.
In support of his proposition Mr. Seervai has relied on the decision of a single Judge of the Calcutta High Court in Sailesh Nath Bisi v. J. Chaudhurji. In that case Mr. Justice Gentle held that where a plaint did not disclose on the face of it a cause of action, the Court had no option but to reject it and had no jurisdiction to allow an amendment. With great respect to the learned Judge, I am unable to accept the view taken by him as to the powers of the Court under O. VI, r. 17. Whether in a particular case an amendment should be allowed or not must always be a question of the proper or improper exercise of the discretion by the Court. It cannot be said that when a Court allows an amendment of the plaint the Court is acting without jurisdiction. In a particular case the order of the Court may be attacked and successfully attacked and it may be shown that the exercise of the discretion by the Court was not a proper discretion. But I am unable to agree with Mr. Justice Gentle that the Court has no jurisdiction to allow an amendment of the plaint which on the face of it did not disclose a cause of action. In coming to this decision Mr. Justice Gentle relied on an earlier decision of the Calcutta High Court which is a decision of a division bench and that is the case of Midnapore Zemindary Company Ltd. v. Secretary of State for India. There the Court was not dealing with O. VI, r. 17(a), but was dealing with O. VI, r. 17(b). In that case the relief claimed was undervalued and the plaintiff was required by the Court to correct the valuation within a time which was fixed by the Court and the plaintiff failed to do so. Then the plaintiff applied to amend the plaint so as to strike out a particular declaration which he wanted which resulted in his plaint being undervalued and that amendment was refused by the Court. It is unnecessary to consider, with very great respect, whether that decision of the Calcutta High Court is correct or not because it was dealing with a case which is not before us. As will be noticed, there an order was made by the Court to make good the deficiency in the valuation of the plaint. That order was not carried out by the plaintiff and it was under those circumstances that the Calcutta High Court came to the conclusion that it had no jurisdiction to allow the amendment of the plaint.
Mr. Seervai has also relied on the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, for the proposition that the Court has no jurisdiction to permit a plaintiff to substitute by an amendment one distinct cause of action for another. We had to consider this very case in Sheshgiridas Shanbhag v. Sunderrao, and that very case was attempted to be pressed into service by Mr. Desai who then argued the appeal for the proposition that the Privy Council had laid down that the Court had no jurisdiction to substitute one cause of action for another, and in my judgment I have pointed out that the Privy Council does not say that the Court had no jurisdiction to make an order for amendment. As a matter of fact, if one reads the judgment of Lord Buckmaster it is clear that all that the Privy Council was laying down was that in that particular case, viz. of substituting one cause of action for another, leave to amend could not be considered to be properly given in accordance with the rules by which leave to amend must necessarily be regulated. Therefore, the Privy Council also was considering the proper or improper exercise of the discretion vested in the Court to allow the amendment of pleadings.
Therefore, if what Mr. Justice Tendolkar has done is merely to exercise his discretion in allowing the plaint to be amended, the most that Mr. Seervai can say is that in this particular case his exercise of the discretion has not been proper. In that view of the case the decision in Sheshgiridas Shanbhag v. Sunderrao is indistinguishable, and following the decision of that division bench we must hold that the order made by Mr. Justice Tendolkar is not a judgment and no appeal lies from that order. The result is that the appeal fails and is dismissed with costs.
There are cross-objections against the order of Mr. Justice Tendolkar with regard to costs and Mr. Manecksha very fairly concedes that those cross-objections would not lie. The result is that the cross-objections also fail and must be dismissed with costs.
Coyajee, J.:—I agree.
Attorneys for appellants: Little & Co.
Attorneys for respondents: Crawford, Bailey & Co.
Appeal dismissed.
A.J.P