Writ Petition No.2952 of 1984

2nd April, 2004

Petitioner Counsel: Mr. M. V. LIMAYE,Mr. R. S. APTE
Respondent Counsel: Mr. C. R. DALVI

JUDGMENT

JUDGMENT :- By this petition under Article 227 of the Constitution of India, the Petitioners have challenged the Judgment and Order dated 4th July, 1984 passed by the learned 3rd Joint Civil Judge, Junior Division, Pune, below application Exh.1 in C-Application No.60 of 1984.

2. The Petitioners are the legal representatives of the original Plaintiff in Regular Civil Suit No.1389 of 1978 filed in the Court of the Civil Judge, Senior Division, Pune, against the Respondents. The said suit initially came to be decreed ex-parte on 29th July, 1980. Thereafter in Writ Petition No.3293 of 1981 an order of remand was passed by setting aside the decree passed on 29th July, 1980. After the remand, a decree for possession was passed in favour of the original Plaintiff on 5th July, 1984 which has admittedly attained finality. On 23rd March, 1984, the Petitioners made an application before the trial Court pointing out that in the Judgment, suit property has been wrongly described as Survey No.66/5-A instead of Survey No.66-A/5 and prayed for effecting necessary corrections. The said Application was rejected by the trial Court on the ground that in the plaint, the survey number was mentioned as Survey No.66/5-A. On 9th April, 1984, an application was made by the Petitioners by invoking section 152 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"), praying for correcting a typing mistake in the plaint as well as in the Judgment and Decree passed in the said suit. The case of the Petitioner in the said application was that the suit property is Survey No.66-A/5 of village Dobadwadi, Ghorpadi Village, Pune and by mistake in the first paragraph of the plaint and in the schedule to the plaint survey number of the property was typed as 66/5-A instead of 66-A/5. A contention was raised in the said application that correct survey number was mentioned in the deposition of the original Plaintiff and also at various other places and the Defendants in the suit were fully aware about the correct survey number which was the subject matter of the suit.

3. Initially the original Defendant No.1 was made a party to the Application under section 152 of the said Code and later on other Defendants were added as parties and were served with the notice of the application. However, reply was filed only by original Defendant No.1 i.e. Respondent No.1 herein. It was contended that the mistake in the plaint cannot be allowed to be rectified as the said mistake was not corrected when the proceedings were filed earlier in the District Court and in this Court.

4. While rejecting the application by passing the impugned order, the learned trial Judge came to the conclusion that it was not a clerical or arithmetical mistake and as such the original Plaintiff could have taken notice of the said mistake earlier and could have corrected it. The learned Judge further held that the original Plaintiff failed to do so as he was not knowing the correct number of the said property. The learned trial Judge, therefore, came to the conclusion that it cannot be said that the mistake was clerical or arithmetical mistake or accidental slip or omission.

5. The learned Counsel appearing for the Petitioners contended that the correct survey number of the said property was mentioned in the deposition of the original Plaintiff and on the map annexed to the plaint. He further submitted that the original Defendants were all along aware about the correct survey number of the property in respect of which the suit was filed. He submitted that incorrect survey number was mentioned in the plaint only due to typographical error and the said error can be corrected even after decree was passed.

6. The learned Counsel appearing for some of the Respondents contended that the accidental errors or mistakes can be corrected only if the said mistakes or errors were in the judgment or decree of the Court and the mistake which has crept in the plaint itself cannot be corrected after the decree is passed in the suit and the decree has attained finality. He submitted that the judgment has to be in conformity with the description of the property in the plaint and the decree has to be in conformity with the operative part of the judgment. He therefore submitted that as the description of the property in the plaint cannot be corrected, there is no question of correcting the description of the suit property in the Judgment and Decree. He submitted that after the decree was passed in the suit for the first time on 29th July, 1980, there was an appeal preferred in the District Court challenging the said decree. The said appeal however came to be dismissed. He submitted that against the judgment in the appeal, a Writ Petition was filed in this Court in the year 1981 in which the order of remand was passed. He submitted that at no stage of all these proceedings, the original Plaintiff made any efforts to get the description of the suit property in the plaint corrected though several opportunities were available. The learned Counsel therefore submitted that no interference was called for in this petition under Article 227 of the Constitution of India.

7. Before adverting to the submission made by the learned Counsel appearing for the parties, it is necessary to refer to the relevant provisions. Section 151 of the Code reads thus :

"151. Saving of inherent powers of Court. - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court."

Section 152 of the said Code reads thus :

"152. Amendment of judgments, decrees or orders. - Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties."

Section 152 gives power to the Civil Court to correct accidental errors and omission in the judgment, order or decree of the Court.

Section 153 of the Code reads thus :

"153. General power to amend.- The Court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."

Insofar as section 153 of the Code is concerned, it is a general power vesting in the Civil Court to allow amendments to the proceedings of a suit at any stage. The said power includes power to allow amendment of pleadings.

8. In para 1 of the plaint, the survey number of the suit property is mentioned as 66/5-A. The same survey number appears in the schedule of the property in the plaint. The original record of the suit is available. A perusal of the original records shows that the correct survey number of the said property i.e. Survey No.66-A/5 appears at several places as under :

(i) In the map annexed to the plaint, which is also annexed to the decree passed in the suit.

(ii) In paragraph 1 of the judgment dated 29th July, 1980 which was originally passed in the suit, there is a specific reference to survey No.66-A/5 and it is stated that by filing a suit the original Plaintiff has sought vacant possession of 19 Gunthas out of the said survey number.

(iii) The Affidavit dated 22nd December, 1983 of the power of attorney holder of the legal representatives of the deceased Plaintiff.

(iv) The deposition of Shankar Narhari Kavade, power of attorney holder of the legal representative of the original Plaintiff.

(v) The Application at Exh.37 dated 25th October, 1982. In the said application it is specifically stated that the original Plaintiff was seeking possession of an area of 19 gunthas out of survey No.66-A/5.

(vi) The Judgment and order dated 30th June, 1986 in Misc. Application No.3 of 1984. The said Misc. Application was filed for determination of mesne profit as per the decree passed in the said suit. It is specifically stated in para 1 of the judgment that the subject matter of the suit was land bearing survey No.66-A/5.

9. It is pertinent to note that even the Defendants in the suit were all along aware that the suit was filed in respect of the land bearing Survey No.66-A/5. In the written statement at Exh.131 filed by some of the Defendants, a specific contention is raised stating therein that the said Defendants were in possession of huts which were given numbers and the said house numbers have nothing to do with the land bearing Survey No.66-A/5. Similar contention is found in written statement at Exh.145. It is pertinent to note that an application was made at Exh.62 by the original Defendants for amendment of written statement. In the said application, there is a clear indication that even the Defendants were aware that it was the specific case of the original Plaintiff that the Defendants had construed houses by encroaching upon survey No.66-A/5. A reference to the said survey number is found at two places in the said application for amendment and a specific contention is raised that the huts constructed by the Defendants have nothing to do with survey No.66-A/5 of the original Plaintiff. The Defendants filed reply at Exhibit 88 to the application for amendment filed by the original Plaintiff. A perusal of the said reply shows that the Defendants were aware that the original Plaintiff was claiming possession of part of survey No.66-A/5.

10. It is very clear from the record of the suit that the original Plaintiff all along claimed to be the owner of survey No.66-A/5 and claimed possession of part of the said survey number. Even in the deposition of the constituted attorney of the legal representatives of the original Plaintiff the said survey number is mentioned. Even from the pleadings of the Defendants which are on record of the suit, it is very clear that the Defendants were also aware that the original Plaintiff was claiming possession of survey No.66-A/5. As stated earlier, even in the map annexed to the plaint which forms part of the decree passed in the suit, survey No.66-A/5 is mentioned. It is therefore very clear that both original Plaintiff as well as the Defendants were fully aware that the decree for possession was sought in respect of land bearing survey No.66-A/5. It is therefore clear that reference to Survey No.66/5-A in the plaint was obviously due to an accidental or typographical mistake.

11. The contention of the learned Counsel for the Defendants is that section 152 of the said Code cannot be invoked to amend the plaint. This contention appears to be correct. The power of the Court to make corrections for correcting errors arising due to accidental slip which are necessary for the ends of justice is not confined only to the power exercisable under section 152 of the said Code. Extensive powers can be exercised even under section 151 and section 153 of the said Code. It is eminently a case in which the accidental slip should be corrected as the correction is necessary for the ends of justice. It would be a blot upon the judicial administration if the Courts were powerless to do justice in a case of this sort where corrections are necessary in order to give effect to the intentions of the parties themselves. The correction is required to be made with a view to give true meaning to the decree for possession.

12. In the present case even the Defendants were aware all along about the correct survey number of the property in respect of which decree was prayed for by the original Plaintiff. Even the Defendants were aware about the description of the property in respect of which decree was being prayed for and passed. It appears that there is accidental error and/or slip in describing the survey number in the suit. The said error ought to have been permitted to be corrected by the learned trial Judge by exercising powers under section 152 read with sec.151 and sec.153 of the said Code. Merely because the Petitioners have purported to apply only under section 152 of the Code, relief cannot be denied to the Petitioners. Hence, the impugned order deserves to be quashed and set aside and the application made by the Petitioner deserves to be allowed.

13. Due to accidental error on the part of the Petitioners in describing the suit property, the Respondents have been dragged to one more litigation. Therefore, this is a fit case where costs should be awarded to the Respondents. The costs are quantified at Rs.2,500/-.

14. Hence I pass the following order:

(i) Rule is made absolute.

(ii) The application made by the Petitioner i.e. C-Application No.60 of 1984 is allowed. Necessary amendment be carried out within a period of two weeks from the date on which this order is received by the trial Court.

(iii) The Petitioners are directed to pay costs of Rs.2,500/- to the Respondents.

Order accordingly.