Law, J.:— The plaintiff, who is a shareholder of defendant company (Def. 8) has brought two applications in the present suit which were filed by him with leave under clause 12 of the Letters Patent for a declaration that certain alleged meetings of the defendant company held at different dates mentioned in the plaint and certain resolutions passed at the said meetings are illegal, ultra vires and not according to law and not binding on the plaintiff and/or the defendant company. For the purposes of these two applications it is not necessary for me to state here in detail the facts of this case because it will suffice if I only indicate that the plaintiff's main grievance in the suit as originally filed was that the alleged meetings were held without any notice to him. Of the two applications now brought by the plaintiff, one is for fresh leave under clause 12 of the Letters Patent in respect of the amendments sought for in the plaint and the other application is for leave to amend the plaint in the manner indicated in red ink in the Annexure ‘A’. The proposed amendment sought to be made is to the effect that the defendant No. 4 and defendant No. 5 were at all material times minors being under the age of 18 years and as such they were never shareholders or directors of the defendant company and further that the board meetings or proceedings wherein defendant No. 4 and defendant No. 5 took part and voted are null and void and of no effect and also the resolutions passed at the said meetings were and are null and void and of no effect. In the proposed amendment the particulars of the proceedings wherein the defendants 4 and 5 took part are given, and I find that two new proceedings dated June 20, 1956 and July 26, 1956, have been added which were not included in the plaint as originally filed.

2. There cannot be any question that the proposed amendment introduces a substantially different cause of action.

3. The applications are opposed on the ground that no leave under clause 12 of the Letters Patent can be given at the time of this proposed amendment nor can leave be given to amend the plaint because the amendment proposed is a new cause of action and further it is inconsistent with the cause of action originally pleaded in the plaint. The question for determination is a question of considerable importance because I have to consider whether the proposed amendment introducing a new cause of action should be disallowed for the reason that this being a suit instituted with leave to sue under clause 12 of the Letters Patent no further amendment can be ordered.

4. Clause 12 of the Letters Patent provides—”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 said High Court…………”

5. It has been well established in (1) 15 Bombay 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 disclosed in the plaint as presented to the court at the time of the grant. It has further been held 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 and 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; and further that in suit for which leave to sue under clause 12 of the Letters Patent is necessary the Court cannot allow an amendment which substantially alters the original cause of action.

6. In Motilal v. Shankerlal (2) A.I.R (1939) Bombay 345, Kania, J. observed— “the question goes to the root of the jurisdiction of the court……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”. The learned Judge followed 15 Bombay 93 and in the course of his judgment observed that “if an amendment which would alter the cause of action was made, it necessarily followed that fresh leave should be obtained in respect of the altered cause of action”. He further reasoned to the effect that the two causes of action being thus entirely different and no leave having been obtained when the amendment was applied for, the suit must fail.

7. In Barasat Basirhat Light Railway Co. Ltd. v. District Board, 24 Parganas, (3) 1946 A.I.R Calcutta 23, Gentle, J., had to consider the same question. The learned Judge referred both to 15 Bombay 93 and A.I.R (1939) Bombay 345 and other decisions on the point and observed as follows:—

“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 claim upon the cause 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.”

8. In the course of his judgment the learned Judge considered the observation of Kania, J., in (2) A.I.R (1939) Bombay 345 and proceeded to observe that “leave (cl. 12) was not sought in the case with which he (Gentle, J.,) 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 stated that “this admission and grant of leave to amend the Plaint could not confer upon the court jurisdiction which it did not possess”. Eventually, however, he said that the court had 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. In (4) 91 C.L.J 279, Sinha, J., after having considered all the above authorities came to the conclusion that “where by amendment of a plaint the cause of action is altered or a new cause of action added, it is not a new suit but the old suit in a new form. In such a case no amendment can be ordered if it requires leave to be granted under clause 12 of the Letters Patent at the time of the amendment”. The learned Judge has followed and explained the earlier authorities but there are no new reasonings on the point in issue.

10. In 94 C.L.J 160 at p 166 Mr. Justice G.K Mitter following Kania, J. in (2) (1939) A.I.R Bom, 345, Gentle, J. in (3) (1946) A.I.R Cal. 23 and Sinha, J. in (4) 91 C.L.J 279, came to the simple conclusion at p. 168 as follows: “Once the cause of action is altered or added to it cannot, in my opinion be said that the reception of the suit continues to be proper without grant of fresh leave.”

11. Mr. Mukherjee, counsel for the applicant argues that all the above decisions were mere obiter dicta because the question came up at the time of hearing of the suit and in none of those cases any application was brought before the court for obtaining leave to sue under clause 12 and also for leave to amend the Plaint as has been done in this case. Shortly stated, Mr. Mu-kherjee's argument is that if the proposed amendment is otherwise permissible in law, even it be a new cause of action, fresh leave under clause 12 of the Letters Patent can be granted at the time when the application for amendment is brought. He further argues that the Rules of the Original Side do not provide anywhere that no amendment can be made in suit filed with leave under clause 12 of the Letters Patent nor is there any provision anywhere in law that no leave under clause 12 can be granted at the time of the amendment which could have been provided in the Original Side Rules if it was thought necessary. He further submits that the Letters Patent is also silent about the matter and comments that the present day practice is to allow amendment freely. As an authority for his contention he strongly relies on a judgment of Krishnaswami Nayudu, J. reported in (6) A.I.R (1952) Madras 533. He submits that in this Madras case the present question came up before the court in an application for leave to sue under clause 12 of the Letters Patent along with an appeal from the Master on an application for amendment of the plaint end the learned Judge in this case held “that 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 an 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 the clause 12 of the Letters Patent.”

12. With great respect to the learned Judge I am unable to agree with him as I shall soon explain.

13. Reading the learned Judge's judgment, I find that he agrees with the view expressed in (1) 15 Bom. 93 by Telang, J. He agrees that grant of leave under cl. 12, L.P being a judicial act must relate 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 and 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 but he observes “that it does not necessarily follow that in respect of such a different cause of action leave under cl. 12. L.P 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”. The learned Judge was fully alive to the provisions of clause 12 of the Letters Patent because he observes in the last sentence to paragraph (10b) of his judgment at p. 534 thus—

“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.”

14. But he then proceeded to reason thus—

“In regard to plaint 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 was not based on a substantially different cause of action.”

15. I fully agree that formal amendment, as normally understood, is permissible in law. But with great respect, I fail to understand what the learned Judge meant by the words “not based on substantially different cause of action”. Either it is based on a different cause of action or it is not. If it is not based on a different cause of action there cannot be any doubt that the formal or reasonable amendment is permissible in law. The question for determination is, as to whether amendment seeking to introduce a different cause of action is permissible in law.

16. As I have understood the judgment of Krishnaswami Nayudu, J. it seems to me that the ratio of his judgment is to be found in the following passages:—

(1) If the Court finds that a cause of action is not inconsistent and 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 for the decisions of Kania, J. and Gentle, J.

(2) 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. But the learned Judge says, there is nothing to show that a plaint after obtaining leave to amend would not include an amended plaint.

(8) 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 (under cl. 12) 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 fresh application stating the cause of action on which the amendment has been applied for and the reasons for such grant.

(4) The learned Judge overcomes the difficulty created by the judgments of Kania, J. and Gentle, J. by holding that both of them by implication were of the opinion that such leave under clause 12, Letters Patent could be granted in the case of an amended plaint based on a different cause of action.

17. I shall assume that it is possible to read or spell out by implication from the judgments of Kania, J. and Gentle, J. or other learned Judges, that they did by implication hold a view” that such leave under clause 12 could be applied for at the time of the amendment but it must be remembered that the question was only raised at the hearing of those suits before the learned Judges. It never came before them directly for their consideration as to whether leave under clause 12, Letters Patent could be granted if applied for st the time of amendment seeking to introduce a new cause of action. Further it may be noted that both Kania, J. and Gentle, J. came to the conclusion that such leave under clause 12 could not be granted at the time of the amendment. I am not sure as to whether Kania, J. and Gentle, J. really meant what Krishnaswami Nayudu, J. is implying. I am not prepared to proceed on that footing in my judgment but rather decide on principle.

18. I must confess that I was much impressed by the attractive reasonings of the learned Judge at the beginning of the argument by the counsel for the applicant. But with due respect to the learned Judge upon careful consideration I have come to a different conclusion.

19. In my opinion, even if, from the point of view of avoiding multiplicity of suits or for the purpose of determining the real question in controversy raised in the suit between the parties or for reasons of expediency or any other reasons an amendment is found or becomes necessary in such suit, it cannot be allowed by the Court if the amendment sought, is based on a different cause of action.

20. The underlying principle or the reason as to why such amendment cannot be allowed, in my opinion is, that the question involved is not a question of procedure but a question of power. It goes to the very root of the jurisdiction of the court. Jurisdiction can only be assumed by the Court by grant of leave to sue under clause 12, Letters Patent prior to the filing of this suit. It has been held that such leave is only confined or referable to the cause of action stated in the plaint when filed and to no other. It has been well established and our Court have also repeatedly held that such leave to sue, granted prior to the filing of the suit, cannot be enlarged to include other causes of action which were not included originally in the plaint and were not judicially considered at the time of the first grant of leave under clause 12, prior to the filing of the suit. Jurisdiction of the Court in such cases is strictly limited to the cause of action originally pleaded and cannot be enlarged to include new causes of action.

21. I am further of the opinion that if in a suit which was originally filed with leave under clause 12, Letters Patent, the Court were to grant a fresh leave to sue, in respect of a different cause of action sought to be brought in by way of amendment at the time of the application made on that behalf, such a grant would not be in accordance with law as it must necessarily be after the filing of the suit in direct violation of the clear and unambiguous ianguage of clause 12 of the Letters Patent.

22. The language of clause 12 is mandatory and in my view such a grant of leave to sue subsequent to the suit would not confer any jurisdiction to the Court to receive, try and determine the new cause of action. It therefore necessarily follows that in such a case no leave to amend can be granted if the amendment seeks to bring in a different cause of action.

23. An amendment to plaint introducing a new cause of action upon which the claim is made cannot be said to be a new suit. It is merely a new claim added in the same suit. But that again does not necessarily mean that the original plaint in a suit properly filed with leave under clause 12 would include the amended plaint. The original plaint in such suits cannot include the amended plaint is clear from the fact that firstly, the cause of action originally pleaded in the plaint was judicially considered by the Court at the time of the grant of leave to sue before the suit was filed, thus assuming jurisdiction to receive, try and determine the suit as it then stood; secondly the Court's jurisdiction being strictly confined to the original cause of action judicially considered by the Court at the time of the grant prior to the filing of the suit and to no other, the plaint originally filed cannot possibly include the amended plaint because the cause of action in the amended plaint was not judicially considered by the Court before the filing of the suit; thirdly the Court having no power to grant leave under clause 12, Letters Patent after filing of the suit the original plaint cannot include the cause of action included in the amended plaint as it would enlarge the jurisdiction of the Court. As I have stated before in such a case leave to amend the plaint cannot be given by the Court to include a different cause of action.

24. In the light of what is stated before I hold that in a suit which is filed with leave under clause 12 of the Letters Patent, only formal amendments or other reasonable amendments can be allowed, provided the amendment sought, does not affect the jurisdiction assumed by the Court originally, by grant of leave to sue under clause 12 prior to the filing of the suit, in any way, either by adding to or altering the original cause of action as pleaded in the plaint.

25. However expedient it may be for the purpose of determining the question in controversy in the suit or for avoiding multiplicity of suits or for other good reasons, no amendment seeking to alter the original cause of action or seeking to add a new cause of action can be allowed by court in a suit filed with leave under clause 12, for the simple reason that the question involved is not one of procedure but of jurisdiction.

26. The language of clause 12, Letters Patent, is clear and unambiguous and the provision therein contained are mandatory. The correct position of law has been clearly stated in (1) 15 Bom. 93. In these cases the Court is powerless and leave if granted in such cases would be in excess of the powers of the Court and would not confer any jurisdiction upon it to receive, try and determine any causes of action which were not originally pleaded in the plaint.

27. As regards the application for leave to amend the plaint is concerned, in my opinion the proposed amendment is clearly of a substantially different character from the one originally pleaded. The cause of action sought to be included in the amended plaint challenges the statuts of the defendants Nos. 4 and 5 who are now alleged to have been minors at the relevant time; whereas the cause of action originally pleaded was non-service of the notices of different meetings alleged to have been held by the defendants and other alleged illegal acts of the defendants. In my view this amendment is not permissible in law. Even if my finding be not correct the same result will follow, for the amendment proposed is, in any event, a new cause of action and not of a formal nature and as such in view of my opinion as expressed before leave for such amendment cannot be given, nor can fresh leave under clause 12, Letter Patent be granted for amendment of the plaint in this suit.

28. In the result both the applications fail and are dismissed with costs.

S.N.G