1. These are two applications taken out by the plaintiff. One is an appeal against the order of the Master refusing leave to amend the plaint and the other is for leave to sue on the basis of the plaint sought to be amended. The suit is for specific performance of a contract for the sale of certain lands in Salem District entered into at Madras, and for an injunction restraining the second defendant from bringing about a breach of the said contract. Application No. 260 of 1951 was filed by the plaintiff for amendment of the plaint consequent on the plaintiff having been made aware subsequent to the suit that the second defendant claimed to be purchaser of the same property under a sale deed executed in his favour on the 28th September 1950. The plaint is, therefore, sought to be amended by stating that the sale is sham and nominal, and, in any event, the second defendant is not a ‘bona fide’ purchaser for value without notice, and for directing the execution of the sale deed-not only by the first defendant, but also by the second defendant.

2. The application was opposed on the grounds that the amendment could not be allowed, as it substantially alters the cause of action, secondly, that the amendment would covert the suit into a suit for land, and this Court would not have jurisdiction to try the suit, and, thirdly, that in any event, the amendment petition was incompetent, as it was filed without previously obtaining leave of Court to sue in respect of the suit as proposed to be amended. The learned Master held in favour of the plaintiff on the first two contentions, but dismissed the application on the ground that as amendment substantially alters the cause of action, the suit having been filed after obtaining previous leave of Court under clause 12 of the Letters Patent, no amendment could be allowed. The learned Master, however, observed that he considered the question as to whether he should grant the plaintiff an adjournment to enable him to apply for leave to sue in regard to the amendment sought but as the obtaining of the leave was a condition precedent to the presentation of the application for amendment, he considered that no purpose would be served by an adjournment.

3. I am in agreement with the learned Master that but for this objection raised as regards the non-obtaining of leave to sue, the amendment ought to be granted, as it does not seek to set up an inconsistent cause of action, and the amendment has, therefore, to be allowed. I have only to consider whether the amendment should be rejected for the reason that this being a suit instituted after obtaining leave to sue under clause 12 of the Letters Patent, no further amendment can be ordered and any cause of action to which the plaintiff has become entitled could only be adjudicated in a separate suit.

4. Clause 12 of the Letters Patent provides that

“the High Court, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description….’………if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the High Court…………………….”

5. Leave was obtained initially before the institution of the suit. The plaintiff now seeks an amendment of the plaint which he would ordinarily be entitled to but for this objection raised. Does the circumstance that previous leave to institute has been obtained in a suit disentitle the plaintiff from asking for an amendment of the plaint in the suit so instituted? There are three decisions which were referred to by the learned Master and relied upon as establishing the proposition that no amendment could be allowed in a suit so instituted.

6. It is held in ‘Rampurtab v. Premsukh’, 15 Bom 93, that the grant of leave under clause 12 of the Letters Patent is a judicial act, which must be held to relate only to the cause of action contained in the plaint, as presented to the Court at the time of the grant that such leave, which affords the very foundation of the jurisdiction, is not available to confer jurisdiction in respect of a different cause of action, which was not judicially considered at the time it was granted, that in respect of such a different cause of action, leave under clause 12 cannot be granted after the institution of the suit, and, therefore, the Court cannot try such different cause of action, except in another suit duly instituted, and further that in suits for which leave to sue under Clause 12 of the Letters Patent is necessary, the plaint cannot be afterwards amended.

7. This decision was referred to by Kania, J. (as he then was) in ‘Motilal v. Shankar-Lal’, AIR 26 (1939) Bom 345. In that case, the suit was originally instituted” by six persons as representing a firm, and as the defendant was a resident outside the jurisdiction of the Bombay High Court, leave to sue under clause 12 was obtained before the filing of the plaint. On an objection raised by the defendant that his dealings were not with the firm but with an individual, amendment of the plaint was asked for and granted, and the plaint was amended. The defendant then raised the contention that the Court had no jurisdiction to try the suit and it was pointed out that the individual, who by reason of the amendment proceeded with the suit, had not obtained leave under clause 12 of the Letters Patent, and the Court had no jurisdiction to try the suit. The learned Judge observed as follows:

“The question goes to the root of the jurisdiction of the Court, and when the facts are pointed out, it is the duty of the Court to consider the question, whether the same has been raised by the defendant or not. In the present case, the facts are not disputed. The obtaining of the leave under clause 12, Letters Patent, is the foundation of the Jurisdiction, and it has been held that such leave must be obtained before the institution of the suit and cannot be granted afterwards. In ‘Rampurtab v. Premsukh’ 15 Bom 93, it was held that the leave granted was confined to the cause or causes of action set forward in the plaint at the time the leave was granted; hence the plaint cannot be amended so as to alter the cause of action. If an amendment, which would alter the cause of action, was made, it necessarily follows that fresh leave should be obtained in respect of the altered cause of action…………The two causes of action being thus entirely different and no leave having been obtained when Motilal, the individual, desired to carry on the suit, this issue must be found against the plaintiff………………”

8. Gentle, J. in ‘Barasat Basirhat Light Rly. Co. Ltd. v. District Board, 24-Parganas’, ILR (1944) 2 Cal 101, had occasion to consider a similar question. After referring to the cases, ‘Rampurtab v. Premsukh’, 15 Bom 93; ‘Mctilal v. Shankar-Lal’, AIR 26 (1939) Bom 345 and other decisions, the learned Judge observes as follows:

“The wording and meaning of clause 12 of the Letters Patent, 1865, is clear, namely, that the Court's leave shall previously be obtained before it has jurisdiction to receive a suit for which leave is required. The grant of leave is a condition precedent to the Court having jurisdiction to receive such a suit. An amendment to a plaint raising a new cause of action upon which a claim is made is not a fresh suit but is an additional claim made in an existing suit. The Court's leave is previously required in respect of a cause of action before the Court can have jurisdiction to receive the suit in which it is alleged……In my opinion, the Court has no jurisdiction to receive, try and determine the claims upon the causes of action in the amendment to the plaint since leave was not previously obtained in respect of those causes of action before the suit in which those claims are made was instituted in this Court.”

9. While in agreement with the views of Telang, J. that the grant of leave under clause 12 of the Letters Patent being a judicial act must relate only to the cause of action contained in the plaint, as presented to the Court at the time of the grant, and that such leave affords the very foundation of the jurisdiction & would not be available to confer jurisdiction in respect of a substantially different cause of action, which was not and could not have been judicially considered at the time it was granted, it does not necessarily follow, that in respect of such a different cause of action, leave under clause 12, cannot be granted after the institution of the suit, and that, therefore, the Court cannot try such a different cause of action, except in another suit duly instituted. Neither the language of clause 12, nor the principle of providing for leave before a suit is tried would necessitate such a conclusion.

10. In cases, where leave is required, in order to enable the High Court to have jurisdiction, right is conferred on the High Court in its ordinary original civil jurisdiction, to receive, try, and determine such suits, provided the leave of the Court is previously obtained. Therefore the grant of leave must. Be made before the High Court receives, tries and determines the suit and the grant ‘ipso facto’ vests jurisdiction to receive, try and determine such suits. The leave, therefore, must be prior to such receipt, trial and determination, and not after, and must necessarily relate to the cause of action on which the suit is based.

11. In regard to plaints in such suits so instituted, could it be said that the plaint cannot be amended at all? There does not appear to be any controversy for the position that an amendment to such a plaint can be granted, if it is only a formal amendment, which is not based on a substantially different cause of action. But if a Court finds that a cause of action is not inconsistent, and that to avoid multiplicity of suits or for the purpose of determining the real question in controversy raised in the suit between the parties, or for other reasons an amendment is necessary, though based on a different cause of action, the Court has ample power to order an amendment of the plaint, but in view of the decision in ‘Rampurtab v. Premsukh’. 15 Bom 93, followed in ‘Barasat Basirhat Light Rly. Co. Ltd. v. District Board, 24 Parganas’, ILR (1944) 2 Cal 101, such an amendment could not be granted, since the suit happens to be a suit instituted after obtaining leave under clause 12. What all that is required to be complied with to satisfy the provisions of clause 12 is that in cases where leave is required, the High Court has no power to receive a plaint before such leave is granted. There is nothing to show that a plaint instituted under clause 12, would not include an amended plaint, and if an amended plaint after obtaining leave to amend is to be received and the cause of action arising therein is to be tried and determined which cannot be done since previous leave is required which alone confers jurisdiction, there, is no reason why such leave to present an amended plaint should not be granted under clause 12 on a fresh application stating the cause of action on which the amendment has been applied for and the reasons for grant of leave under clause 12.

12. That appears to be the reasoning of Kania, J. (as he then was) in ‘Motilal v. Shankarlal’, AIR 26 (1939) Bom 345, where the learned Judge after referring to the decision in ‘Rampurtab v. Premsukh’, 15 Bom 93 observes that

“if an amendment, which would alter the cause of action, was made, it necessarily follows that fresh leave should be obtained in respect of the altered cause of action.”

13. In that case, however, the point as to want of jurisdiction was raised at the time of the trial of the suit and the learned Judge was of opinion that fresh leave, which ought to have been obtained for the amended plaint, was not obtained, obviously being of the view that such leave could be granted in the case of an amended plaint. Though Gentle, J., in ‘Barasat Basirhat Light Rly. Co. Ltd. v. District Board, 24-Parganas’, ILR (1944) 2 Cal 101, considers this observation of Kania, J. and similar argument based thereon, and proceeds to observe that leave was not sought in the case with which he was dealing with respect to the cause of action in the amendment either at the time the application was made to amend or when leave was given for the amendment or when the plaint with the amendment was presented to the Court and states

“that this omission and the grant of leave to amend the plaint cannot confer upon the Court jurisdiction which it does not possess.”

14. Eventually, however, he says that the

“Court has no jurisdiction to receive, try and determine the claims upon the causes of action in the amendment to the plaint since leave was not previously obtained in respect of those causes of action before the suit in which those claims are made was instituted in this Court.”

15. I am of opinion that in cases where the Court, on an application of the plaintiff, considers that the plaint has to be amended so as to include a cause of action, which was not originally in the plaint, on the ground that such an amendment is necessary, it does not prevent the Court from granting such an amendment merely for the reason that it was a suit instituted after obtaining previous leave to sue under clause 12 of the Letters Patent. It does not also preclude the plaintiff from giving effect to such in order by carrying out the amendment or presenting an amended plaint, before which, however, he should apply for and obtain leave to sue on the cause of action described in the amendment under clause 12 of the Letters Patent. Such an application for leave can be filed and leave can be granted, if it comes within the scope of clause 12 of the Letters Patent. In the present case, Application No. 3257 of 1951 is for grant of leave to sue on the basis of the plaint as sought to be amended. Leave is granted. The appeal is allowed and the order of the Master is set aside and leave to amend the plaint is granted. Time for amendment one week. Additional written statement if any, two weeks thereafter. Costs in cause.

C.R.K/R.G.D

16. Leave granted and appeal allowed.