ORDER
Sinha, J.
1. This is an application for an amendment of the plaint. The plaintiff instituted this suit on 26-5-1952 against the defendant. It is alleged in the plaint, as filed, that on or about 30-3-1949, it was agreed by and between the plaintiff and the defendant by means of letters exchanged between the parties that the plaintiff would sell and the defendant would purchase 100 tons of imported continental paper upon certain terms specified in the plaint. It is then stated that the plaintiff had supplied the defendant and the defendant had accepted 40 tons 756 lbs. of the contracted goods, as a result of which a sum of Rs. 80,663/8/3 became due and payable, out of which the plaintiff had been paid a sum of Rs. 58,943/14/3 on or about 14-11-1949, but the defendant had failed and neglected to pay the balance. In the alternative the plaintiff stated that he had supplied the said goods to the defendant not intending to do so gratuitously and that the defendant was liable to compensate the plaintiff for the benefits enjoyed. By the amendment the plaintiff wishes to add a paragraph making an alternative case that if the agreement between the plaintiff and the defendant as mentioned in para 1 of the original plaint be discovered void, the defendant was bound to compensate the plaintiff for advantages enjoyed by the defendant under the contract.
2. I shall proceed on the footing that the plaintiff wishes to introduce an alternative cause of action and for that purpose requires fresh leave under Clause 12 of the Letters Patent. I might mention that in the original plaint leave under Clause 12 was asked for and obtained at the time of the filing of the plaint. Therefore, the short point that arises is as to whether it is possible at this stage to add by way of amendment an alternative cause of action during the pendency of the suit, a cause of action which requires fresh leave under Clause 12 to be granted.
3. In -- 'Laliteshwar Singh v. Rameswar Singh', 34 Cal 619 (A), a Special Bench of this High Court presided over by Maclean C. J. held that leave of the Court under Clause 12 of the Letters Patent had to be obtained before the institution of the suit. In that case the leave had been granted by the Registrar of this Court in its Original Side, but it was held that the Registrar had no jurisdiction to grant such leave and the defects could Rot be cured by grant of leave by a Judge at that stage of the litigation, namely, after the suit had already been instituted. The plaint was, there-lore, directed to be taken off the file.
4. In -- 'Rampurtab Samruthroy v. Premsukh Chandamal', 15 Bom 93 (B) it was held that the leave granted under Clause 12 of the Letters Patent was confined to the cause or causes of action set forward in the plaint at the time when leave was granted; hence the plaint could not be amended so as to alter the original cause of action or to introduce a different cause of action which would require leave under Clause 12 of the Letters Patent. The Courtcould not try such a different cause of action except in another suit duly instituted.
5. In --'Motilal Tribhovandas v. Shankarlal Chhaganlal', AIR 1939 Bom 345 (C), a suit was originally instituted in the name of a firm in which there were six partners. The defendant took the defence that he had not entered into any transaction with the firm but individually with one of the partners. Thereupon, the plaint was amended by substituting that partner in his individual capacity as the plaintiff. In the plaint as originally filed leave under Clause 12 had been obtained. But when the amendment was made no leave was asked for or granted. It was held that the Court had no jurisdiction to try the suit inasmuch as the leave originally granted related to a cause of action which had been completely changed. Kania, J., said as follows :
'The cause of action which is a right to sue vested in six persons alleged to be doing business together, is not the same as the right which exists in one individual. In the first case these persons are together appointed agents for the defendant and the act of one or the other of them will bind the rest. They will all be liable and can only give a joint discharge. When the claim is made by Motilal, he alone is alleged to be agent appointed by defendant, he alone is under the obligation to carry out instructions and he alone is liable to the defendant and can enforce the claim for damages or indemnity, if any, against the defendant. 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 and the suit should therefore tie dismissed with costs.'
It will be observed that the learned Judge does not decide whether leave could properly have been obtained when the amendment was made. Mr. Mukherjee argues that the case is an authority for the proposition that such leave' could have been obtained if asked for. Obviously, that is not so. The learned Judge finds that the leave originally obtained could not be made to serve the purpose of the suit as it was framed when it came up for hearing. The learned Judge did not deal with the question as to whether the plaintiff could have obtained such leave at the stage if he had asked for it.
6. The next case to be considered is --'Barasat Basirhat Light Railway Co., Ltd. v. District Board, 24 Parganas', AIR 1946 Cal 23 (D). In this case the plaintiff company sued the District Board upon six agreements by which it was alleged that the Board guaranteed to supplement the net earnings of the Company. Leave was obtained under Clause 12 of the Letters Patent at the time of the institution of the suit. When the suit came to a hearing before Gentle J., the point was taken on behalf of the defendant that the agreements were not executed according to law. Thereupon, both the plaint and the written statement were ordered to be amended. By the amendment the plaintiff took alternative pleas under Sections 65, 70 and 72, Contract Act, but no fresh leave was asked for or obtained. The learned Judge said 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. Further in the present case leave to sue was not sought with respect to the cause of action in the amendment either at the time 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. ............ 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.' In this case the amendment was allowed but leave although necessary was not asked for. Therefore, the Court had not been called upon to decide whether such leave could have been asked for. Mr. Mukherjee argues that the words 'Further, in the present case leave to sue was not sought with respect to the cause of action in the amendment ............... when leave was given for the amendment or when the plaint with the amendment was presented to the Court'show that the Court considered that such leave might have been granted if asked for. I do not think that is a correct reading of the judgment. The learned Judge was no doubt referring to the fact that leave had not been asked for although required in respect of the amendment, but he also distinctly held that an amendment to a plaint, raising a new cause of action upon which a claim was made, was not a fresh suit but was an additional claim made in an existing suit, so that leave under Clause 12 could not be granted at any stage subsequent to the institution of the suit.
7. The next case cited is --'Benoy Shankar v. Chhotelal', : AIR1952Cal343 (E). In this case the plaintiff sued the defendant for partition o joint family properties, a part of which was situated outside jurisdiction so that the suit required leave under Clause 12 which had been obtained. During the pendency of the suit, certain terms of settlement were arrived at, not only between the parties on record but other parties who were by the compromise decree itself joined as defendants. At the time the compromise was filed no fresh leave under Clause 12 of the Letters Patent was obtained. It was held that the effect of adding new parties by an amendment was to enlarge the scope of the suit and, therefore, fresh leave had to be obtained as condition precedent to a, Court obtaining jurisdiction against the added parties. Sinha, J., said as follows :
'It is not disputed that out of the four properties three were situated outside and one within the jurisdiction of the High Court. 'Leave was, therefore, necessary for filing a suit for partition, which is a suit for land against these minors. No such leave was obtained. It is now established that leave originally obtained at the time of the filing of a suit does not cover an amended plaint. Where the defendant is added fresh leave must be obtained when the suit was originally filed. It is contended that there was no change in the cause of action. Even so, if new parties are joined against whom it intended to proceed in the suit and to obtain a decree, the obtaining of the leave is imperative, because it is the foundation of the jurisdiction of the Court. The Court gets jurisdiction to decide the suit against the parties only if it grants leave which is condition precedent. No leave was obtained to proceed against the newly added defendants and it follows that the Court never get any jurisdiction to make any decree or order against them in the suit.'
8. There is no doubt that according to the learned Judge, when fresh parties are added it is permissible to the Court to grant fresh leave. Mr. Mukherjee argues that if fresh leave could be granted during the pendency of the suit in the case of additional parties, there does not seem to be any objection to the granting of such leave in the case of an additional cause of action. In my opinion, he is not right.
9. According to Section 22, Limitation Act, where, after institution of a suit, a new plaintiff or defendant was substituted or added, it not being a case of the assignment or devolution of interest during the pendency of the suit or transposition of a party, the suit is to be regarded, as against the added party to have been instituted when he is made a party. Therefore, the case of the addition of a party during the pendency of the suit stands on quite a different footing to the addition of a different cause of action against the same party.
10. The point was recently considered by Sarkar, J., in an unreported judgment dated 25-7-1951, --'Sugar Distributing Syndicate Ltd. v. The State of West Bengal (F). The application was in a sense remarkable. The suit had been filed without any leave under Clause 12 of the Letters Patent on 14-5-1950. Long after the suit had been filed, an application was made, not in the suit, but entitled 'In the matter of clause 12 of the Letters Patent etc.', for grant of leave under Clause 12. The learned Judge relying on --'Laliteshwar Singh v. Rameswar Singh', (A) (ibid) held that leave could only be granted in respect of, the suit at the time of the presentation of the plaint and not afterwards. The learned Judge also relied on a similar view in an unreported judgment delivered on 11-8-1950 by S.R. Das Gupta, J., in --'Sree Sree Iswar Jew v. Brojendra Nath', in Suit No. 3797 of 1949 (G).
The result of all these authorities may be summarised as follows :
1. Where leave under Clause 12 of the Letters Patent is necessary, the granting of such leave is the condition precedent to the Court having jurisdiction to entertain the suit.
2. Therefore, such leave is to be obtained at the time of the institution of the suit. In the Original Side of this High Court, the practice is to present the plaint before the Master who places it before a Judge of this Court for granting the requisite leave. It does not mean, however, that such leave is granted after the institution of the suit. For the purpose of limitation the date of the presentation of the plaint may be relevant but the leave when granted is nevertheless leave granted prior to the institution of the suit.
3. Where by amendment of a plaint, a cause of, action is altered or a new cause of action I 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.
4. It follows that leave under Clause 12 of the Letters Patent cannot be granted in such a case, at any stage after the institution of the original suit.
5. But where a new party is added, the suit as regards the added party must be deemed to have been commenced on the date when he was so added. Consequently, if the cause of action against the added party requires leave under Clause 12 of the Letters Patent it is open to the Court to grant such leave, if, asked for at the time of the amendment. In fact, if such leave has not been asked for or obtained in such a case, the Court has no jurisdiction to entertain the suit against such an added defendant.
11. I must admit that these rules are quiteartificial and there does not seem any logicalreason why the Court should not be able togrant fresh leave under Clause 12 of the LettersPatent at the time of amendment where anew or alternative cause of action is introduced. But that is a question of altering the lawand the present case must be dealt with according to the Jaw as it stands. For the reasons aforesaid, this application fails and mustbe dismissed with costs.