T.R. GOVINDARAJA MUDALIAR Vs. SARAVANA MUDALIAR AND ORS.

JUDGEMENT

(1.) THE plaintiff is the petitioner. He sued for a declaration that he is the owner of the superstructure bearing door No. 68, Saravanaperumai Mudaly Street, Purasawalkam, as well as of the ground on which the super building stands and prayed for possession of both the properties.

(2.) OBJECTION having been taken to the valuation adopted by the plaintiffs, a commissioner was appointed and on receipt of his report, the plaintiff was directed to pay deficit court -fee amounting to Rs. 202 -7 -0. Time till the 7th January, 1947, was given to comply with the order. The deficit court -fee was not paid by that date; instead the plaintiff applied for leave to amend the plaint by substituting a prayer for a declaration that he is entitled not to the absolute right in the land but only to a leasehold interest in it. The learned Judge in the Court below dismissed the application on the ground that an amendment of the plaint could not be granted after an order had been made for payment of deficit court -fee. In making this order, he purported to follow the decision of Kuppuswami Ayyar, J., in an unreported case in C. M.P. No. 6269 of 1945 and the decision in Midnapore Zamindari, Co. Ltd. v. Secretary of State for India, I.L.R. (1916) Cal. 352.

(3.) THE circumstance that the amendment of the plaint was sought only after the demand of deficit court -fee had been made cannot stand in the way of the amendment being allowed if it would be otherwise proper. On this aspect of the matter, viz., whether the amendment sought for is proper. I express no opinion as that will have to be decided in the lower Court.