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1958 DIGILAW 284 (KER)

Subramania Iyer v. Joseph George

1958-12-01

VARADARAJA IYENGAR

body1958
Judgment :- 1. This revision is by the plaintiff and is directed against an order of the court below rejecting his application for correction of certain mistakes which had crept in the description of the property as scheduled to the plaint and so later in the decree. 2. According to the plaintiff the plaint schedule was correct in so far as it related to survey number, the acreage, the pakuthy and muri. The boundaries alone had been wrongly described but this wrong description did not in any way affect the identity of the property. This property along with others were the subject of a hypothecation bond in favour of the plaintiff's father and a decree in O.S. 6 of 1106 had been obtained thereon and sale and delivery in execution had since then followed. The mistake in the boundaries, it was alleged by the plaintiff, arose by the adoption for purpose of the plaint in this suit, of the boundaries of the just previous item 19 covered by the decree on the hypothecation bond. The defendant-respondent had duly paid the pattern reserved under the lease deed in respect of the property. He had also submitted to the decree in the case for recovery on the basis of the lease and since then been paying the rents in due course until his default which led to his loss of the concession under Act 8 of 1950 Indeed it was only when the Amin filed his report about the mistake that plaintiff became aware of it. The court below did not post the plaintiff's application for evidence to ascertain how far his case as to identity of property was made out, but it assumed and it is conceded before me on behalf of the defendant, incorrectly, that in allowing the plaintiff's petition for correction there will arise without question, the substitution of an entirely different property. Learned counsel for the respondent however says that even on the allegations of the plaintiff the petition is not sustainable. 3. The only question therefore which arises for consideration is whether on the facts alleged by the plaintiff he is entitled to invoke the jurisdiction of the court to have the correction made. Now obviously the section of the Civil Procedure Code which is appealed to, is S.152. That section says: S. 152. 3. The only question therefore which arises for consideration is whether on the facts alleged by the plaintiff he is entitled to invoke the jurisdiction of the court to have the correction made. Now obviously the section of the Civil Procedure Code which is appealed to, is S.152. That section says: S. 152. 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." The question how far a court can under S.152 amend clerical errors in a decree although the error may have first occurred in the parties' pleadings and may have been merely copied from them in the decree has been the subject of some diversity of judicial opinion. The language of the section does not exclude such mistakes and there would appear to be no reason for restricting the scope of the section as some courts have held, to correction of errors made by the court itself. Indeed mistakes having their origin anterior to the suit and repeated in the decree have themselves been corrected by exercise of jurisdiction under this section. Thus when there is an error in the description of mortgaged property owing to the accidental use of the word 'west' for 'east' Rahulghani v. Uma Shenkar, A.I.R. 1944 Oudh 5 or the insertion of wrong survey number Satyanarayana v. Purnayya, A.I.R. 1931 Mad. 260 and the error is repeated in the plaint and the decree, the court has been held to have ample powers to rectify the error. As Pandalai, J. observed in the Madras case just cited: "There is nothing which limits the power of the court under S.152 to correcting errors, mistakes and omissions, which arise in the suit. Nothing prevents the court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the plaint. A suit for rectification of the instrument and decree is not the only remedy; an application for review may be appropriate, but that is no obstacle under S.152 to an application." 4. It is no doubt true that this case came in for dissent in the later case of Ramakrishnan v. Radhakrishnan, A.I.R. 1948 Mad. A suit for rectification of the instrument and decree is not the only remedy; an application for review may be appropriate, but that is no obstacle under S.152 to an application." 4. It is no doubt true that this case came in for dissent in the later case of Ramakrishnan v. Radhakrishnan, A.I.R. 1948 Mad. 13, but the application there was made to correct the mortgage deed along with the judgment, preliminary decree and final decree passed upon it. And Gentle, C. J. delivering the judgment of the Court said: "I am unable to see how S.152 gives to a court jurisdiction and authority to modify documents, particularly documents upon which a suit is instituted. There is a remedy by way of suit and I find nothing in the provision of S.152 which confers upon it similar powers as are conferred by S.31, Specific Relief Act. In my view, S.152 is for the purpose of correcting errors directly involved in the proceedings themselves and not for correcting errors which are anterior to the proceedings, particularly in documents upon which proceedings are brought." And the learned judges preferred to follow Mand Khan v. Govind Behari A.I.R. 1934 All. 100. 5. In the later case before the Madras High Court Krishna Poduval v. Lekshmi Nathiar, A.I.R. 1950 Mad. 751, the prayer was for amendment of the survey number of an item of property in the plaint schedule and the decree schedule when there was no dispute as regards the identity of the property or boundaries to it and the amendment was allowed under S.152. Discussing the matter the learned judge held: "I do not think therefore that the amendment asked for goes to the root of the claim or an amendment is sought for in respect of any matter which has been a subject of controversy between the parties to the suit. It is only an amendment for correction of certain errors that have crept into the decree and in the plaint schedule which errors happen to be also in Ext. B-1 (Original document). The fact that Ext. It is only an amendment for correction of certain errors that have crept into the decree and in the plaint schedule which errors happen to be also in Ext. B-1 (Original document). The fact that Ext. B-1 also has the same errors as in the plaint schedule and in the schedule to the decree cannot disentitle the plaintiff's to have the errors set right if they arc entitled to it under the provisions of the Code." (Paragraph 5, page 752) The learned judge distinguished A.I.R. 1948 Madras 13 above referred to on the ground that the application there sought to amend the schedule to the document and following Katamaraju v. Paripurnanadam, A.I.R. 1949 Mad. 282 which had favoured amendment in like circumstances. 6. I therefore hold that the court under S.152 has undoubted jurisdiction to entertain the application filed by the plaintiff assuming of course he can sustain it on the facts. But as the court below has not dealt with the merits, the petition will have to go back, 7. I therefore set aside the order of the court below and remit the petition back to it for disposal de novo in the light of the above observations. The costs of this Revision will abide and will be provided for in the final order to be passed by the court below. Allowed.