Excelsior Correspondent
JAMMU, May 16: In a significant judgment, High Court of Jammu and Kashmir and Ladakh has ruled that when the court lacks territorial jurisdiction, it cannot entertain an application for amendment of a plaint, which amendment would vest territorial jurisdiction in the court.
The important issue pertaining to Code of Civil Procedure was settled by Justice Wasim Sadiq Nargal, who observed, “the courts have to examine the plaint as existing and come to the conclusion whether it discloses the court to be having territorial jurisdiction or not; if the averments contained in the plaint as existing does not disclose the court to be having territorial jurisdiction and amendment is sought to vest territorial jurisdiction in the court, then the only option for the court is to return the plaint and the court will have no jurisdiction to even consider the application for amendment of the plaint”.
Justice Nargal was adjudicating upon a petition under Article 227 wherein the moot question was that when issue of territorial jurisdiction arises in the civil suit and simultaneously an application for amendment of suit is filed, then whether trial court has to decide “issue of territorial jurisdiction” in the first instance or whether trial court has to decide “application for amendment” in the first instance.
Settling the issue, Justice Nargal observed that the issue of territorial jurisdiction has to be decided first and if the court has no jurisdiction to try the suit, plaint along with application seeking amendment has to be returned.
“While the courts have been forthcoming and generous in allowing application seeking amendment of pleadings in the face of an application pending under Order 7 Rule 11 of CPC, however, same is not case in allowing application seeking amendment of pleadings before deciding an application under Order 7 Rule 10 of CPC,” High Court said.
Commenting on the distinction between two types of applications—application under Order 7 Rule 11 and an application filed under Order 7 Rule 10 of the Code of Civil Procedure, High Court explained that an application under Order 7 Rule 11 of the CPC is adjudicated based on technical defects in the plaint, such as the lack of a cause of action or other deficiencies like valuation, court fees, or the claim being barred by law.
“If such an application is pending, and simultaneously an application for amendment of the plaint is filed, the court may hear the application for amendment first. This is because the amendment, if allowed, would not affect the court’s territorial jurisdiction but rather address technical deficiencies in the existing plaint”, Justice Nargal said.
On the other hand, an application under Order 7 Rule 10 of the CPC is considered when the court lacks territorial jurisdiction, the court must determine whether the existing plaint discloses territorial jurisdiction. If the existing averments do not establish territorial jurisdiction, and the amendment sought aims to incorporate new averments to establish jurisdiction, the court must first decide the issue of territorial jurisdiction and if the court lacks jurisdiction, it cannot entertain the application for amendment, as allowing it would create jurisdiction where none existed before, Justice Nargal explained.
In view of this legal position Justice Nargal held that the application for amendment of plaint, even if filed to defeat the pending application under Order 7 Rule 11 of the CPC, has to be heard first, as it will not extend to a case where averments contained in the plaint as existing does not disclose the court to be having territorial jurisdiction and the amendment is sought to incorporate averments to disclose the court to be having territorial jurisdiction.
“However, if the application for amendment of plaint is filed to defeat the preliminary issue framed by the court to decide the territorial jurisdiction or to defeat the application filed under Order 7 Rule 10 of the CPC, then the preliminary issue with regard to the territorial jurisdiction or the application under Order 7 Rule 10 has to be decided first”, the bench clarified.
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