BASHIR AHMAD Versus MUHAMMAD MANSHA
ORDER
1. Civil Revision by the defendant, in the suit for recovery of Rs.3,69,103 with interest, is against an interlocutory order of the trial Court, dated 12‑2‑1992, by which it permitted amendment to the plaint for trial of the suit, under ordinary procedure laid down in Code of Civil Procedure. It arises out of the facts and circumstances narrated below.
2. M/s. H.F.F. Engineering (Pvt.) Ltd., Taxila supplied M.S. Ingots to the defendant in the years 1984 and 1985. Defendant repaid part of their value.
3. A sum of Rs.3,69,103 was, however, left outstanding against the defendant. A further sum of Rs.2,12,548 as interest per annum was claimed on principal amount by the plaintiff. On 25‑10‑1986, defendant agreed to pay half of the outstanding amount on 25‑i1‑1986, and the balance by 31‑12‑1986. On 11‑12‑1986, defendant gave a cheque to the plaintiff for rupees one Lac, but it was returned by the Bank to the plaintiff with the endorsement "refer to drawer". On 22‑6‑1989, plaintiff filed an ordinary money suit for recovery of the afore‑mentioned amount from the defendant, in the Court of Senior Civil Judge, Islamabad. Trial of the suit was marked to a Civil Judge of Islamabad. In para. 11 of the plaint, plaintiff averred that;
4. "The cause of action for recovery of Rs.1,00,000 including interest on account of dishonour of defendant Company's cheque qualifies to be tried and proceeded with in a summary manner in accordance with Order XXXVU, C.P.C. while the cause of action for recovery of Rs.2,69,103 should be proceeded with in the ordinary manner."
5. Upon receipt and registration of the suit, the trial Court issued summons to the defendant in the prescribed form‑appendix B‑4. Since defendant had failed to apply for leave to appear and defend the suit as required under Order XXXVII, Rule‑3, Civil P.C., the plaintiff applied for a decree in their favour for rupees one lac with interest on the basis of claim supported by a cheque issued by the defendant and dishonoured by the Bank. Defendant resisted the move and submitted that the Court had no jurisdiction to try the suit, under Order XXXVII, Civil Procedure Code. Thereupon, the plaintiff applied for amendment of the plaint for trial of the civil suit under usual procedure. Defendant contested the application for amendment. By the impugned order, the trial Court gave permission for trial of the suit in the ordinary manner. Conclusion of the trial Court is contained in para. 4 of its order. It reads:‑
6. "The plaintiff has contended in para. No.1l that the present suit joins and comprises two causes of action; one being based on a negotiable instrument i.e. the dishonour of cheque issued by the defendant Company and the other being for recovery of the remaining amount due and not based on dishonour of cheques. The cause of action of dishonour of the defendant Company's cheques qualifies to be tried ' and proceeded with in a summary manner in accordance with Order XXXVII of Civil Procedure Code, while the cause of action for recovery of Rs.2,69,103 should be proceeded with in the ordinary manner. Now through this application the plaintiff wants that he may be allowed to incorporate the amendments that both the above mentioned causes of action may be dealt with under the ordinary procedure of Civil Procedure Code, and, not under Order XXXVII of Civil Procedure Code. The proposed amendments will not change the nature of the suit and the plaintiff is at liberty to choose the remedy' and procedure whichever he likes. So, there is nothing barred for to allow such amendments in the plaint. So, in the interest of justice, the petition is hereby accepted subject to payment of cost Rs.50:
7. Aggrieved of the amendment order, defendant has applied for its revision by this Court.
8. It is submitted that since the trial Court lacked jurisdiction to try suit, under Order XXXVII Civil Procedure Code, it could not permit amendment to the plaint to give jurisdiction unto it. Only course available to the trial Court was to direct return of the plaint for its representation to the Court of competent jurisdiction. In support of the statement, learned counsel referred to rulings in AIR 1927 Pat. 254, AIR 1953 Assam 102, AIR 1953 Nag. 273 and PLD 1956 (W.P.) Kar.161.
9. It is common ground that the trial Court had no jurisdiction conferred on it under Order XXXVII, Civil Procedure Code for trial of suit in summary jurisdiction. Civil suit was initially instituted in the Court of Senior Civil Judge, Islamabad. It was distributed by him to a Civil Judge of Ist Class, Islamabad. From the heading of the plaint, it did not appear that the suit for the recovery of unpaid money was filed for trial in summary jurisdiction. In para. 11 of the plaint, it was only averred that the claim to the extent of rupees one lac was qualified to be tried and proceeded with in summary manner in accordance with Order XXXVII, Civil P.C. It is true that the trial Judge issued summons for defendant's appearance in the prescribed form. It is also true that upon failing of the defendant for applying for leave to appear and defend, the plaintiff had applied for decreeing a part of their claim based upon dishonoured cheque, but no sooner the defendant pointed out that the trial Court had no jurisdiction to try the suit ‑in summary jurisdiction, plaintiff hastened to correct the error by applying for amendment of the plaint for its trial under the ordinary procedure. It is not disputed that the trial Judge has pecuniary jurisdiction to try the suit in the ordinary manner. No doubt, the trial Court was bereft of jurisdiction under Order XXXVII, Civil P.C. Nonetheless, there is no impediment for the trial of the suit in accordance with the ordinary procedure laid down in the Code. Provisions in Rule 2 of Order XXXVII, Civil Procedure Code were merely enabling and not compulsive. A litigant has a clear choice, either to proceed under summary procedure or avail of ordinary mode of trial laid down in Civil Procedure Code. Upon discovery that a part of the claim covered by a dishonoured cheque was not triable in summary jurisdiction by the trial Court, plaintiff could legitimately ask for amendment to the plaint for claiming trial of the whole of its monetary, claim in ordinary manner. In terms of Order VI, Rule 17, C.P.C., the Court possessed vast and wide ranging discretionary powers to grant amendment which should be liberally exercised for promoting ends of determining real controversy between the parties. Partial return of the plaint under Order VII, Rule 10 Civil P.C. would not have met the requirement of law and ends of justice. Therefore, exercise of discretionary jurisdiction by the trial Court for allowing amendment to the plaint for the trial of the whole suit in the ordinary manner was neither an act without jurisdiction nor an excess exercise of it. Further, it was not violative of any procedural law also. Revisional jurisdiction which is essentially a discretionary supervisory jurisdiction of this Court is intended to be exercised in aid of justice and not to defeat its ends. Facts in the precedent cases were not parallel. Therefore, these cases were not helpful. In the cases relied upon subject‑matter was beyond jurisdiction of the Court and by amendment, defect of jurisdiction was sought to be cured. It was in that context that observations in those cases were made. In the case under consideration, the trial Court possessed territorial and pecuniary jurisdiction as well as the jurisdiction on the subject‑matter of the suit. However, it had no jurisdiction conferred on it for trial under order 37, Civil Procedure Code. That defect did not exclude jurisdiction of the trial Court to entertain, hear and try the suit in the ordinary manner in accordance with the mode of trial of the suits laid down in the Civil Procedure Code. In taking this view, I am supported by‑observations in Deokinandan Pandey v. Ram Chandra Tewari and others 1 AIR 1938 All.
17. Relevant observations are at page 18 of the Report. For facility of reference an extract is being reproduced.
10. "Before considering the main question involved in the case, we think it necessary to dispose of a subsidiary point in the case. An application was made by the plaintiff to the Court of first instance asking for permission to amend his plaint by deleting certain words from the claim of relief which referred try the half share alleged to belong to the plaintiff. The plaint, if amended, will claim the relief that the sale deed, dated 18th August, 1934 be‑‑declared to be absolutely inoperative, that is to say, it is invalid no only as against the plaintiffs interest in the property in dispute, but against the interests of the entire joint family of which the plaintiff claims to be a member. The Munsif held that as he had no jurisdiction to entertain the suit, he was not competent to allow the amendment prayed for by the plaintiff. This view may be technically right but is of no practical importance if the amended plaint would bring the suit within the jurisdiction of the Civil Court. Assuming that the plaint, as originally filed, disclosed a suit not cognizable by the Civil Court, and assuming also that the amendment would have made it cognizable by such a Court, it was open to the plaintiff to amend it as soon as it was returned to him for presentation to the proper Court and to represent it in the same Court which was bound to entertain it, as ex hypothesis the suit would have become one which the Civil Court was competent to decide. For all practical purposes, therefore, we should consider in the present revision whether the plaint, if the same had been allowed to be amended, would have disclosed a suit which the Civil Court had jurisdiction to decide."
11. These observations of the Court were approvingly referred to in "Debi Sahai v. Ganga Shahi and another AIR 1954 All. 479 (at p.750). Having regard to the nature of the impugned order and it being also subservient to the cause of justice, it need not be interfered with in discretionary jurisdiction. Revision petition, therefore, is dismissed in limine.
12. Records be returned for trial to proceed.
13. A.A./1‑23/L Revision dismissed.