Srimati Sushila Devi v. Srimati Madhuri Prasad — 1980 DIGILAW 61 (PAT)

JUDGMENT M. P. Singh J. Defendants are the appellants. The decree drawn up on 19th December, 1977 in Mise Appeal no. 6 of 1977 arising out of Title suit no. 106 of 1972 was amended under section 152 of the Code of Civil Procedure by the Ist Additional District Judge exparte and without notice to the appellants on 16th September 1978. The order for amendment runs thus : “16.9.78. Record received from R. R. Monghyr. Seristedar to report by the date fixed. Sd/- B. B. Saran A.D.J. Later - Read report of the Seristedar. That the amendment sought for are proper. Let the decree as also the certified copy be amended accordingly.” The original decree declared the title of the plaintiffs only over the disputed verandah indicated by letters ABCD in the map of the pleader commissioner and the denfendant appellants were directed to remove the encroachment there from. By the amendment” the western wall of the verandah” was inserted in the decree as being the property of the plaintiffs so as to form part of the letters ABCD. Further amendment was the addition of costs amounting to Rs. 534.60. The defendants made an application under section 151 of the Code of Civil Procedure for recalling the order of amendment on the ground that fraud was committed upon the Court, that the amendment was not permissible under section 152 and that no amendment should have been allowed without notice to them behind their back. The first Addl. District Judge rejected the petition under section 151 on 23rd December, 1978, on the ground that the amendment was inconformity with the judgment and further that the course open to the defendants was either appeal or review, the defendants then preferred Civil Revision no 284 of 1979 in this court challenging the validity of the amendment. At the request of the counsel for the petitioners the revision was converted into the present Second Appeal no. 223 of 1979 under order no.7 dated 24th April 1978, and the following substantial questions of law were formulated by this Court : (i) whether in the facts and circumstances of the case the second appeal is maintainable or a Civil Revision application should be maintainable? (ii) whether the impugned order has been passed lawfully? So far as the first question is concerned the answer, in my opinion, is that both are maintainable. The Civil Revision application no. (ii) whether the impugned order has been passed lawfully? So far as the first question is concerned the answer, in my opinion, is that both are maintainable. The Civil Revision application no. 284 of 1979 filed in this Court was maintainable against the order of amendment dated 16th September, 1978. When the decree was amended the amendment became a part of the decree and appeal is maintainable as against the amended decree. It appears that this matter was also the subject matter of the stamp report, according to which the second appeal can also be filed against the amended decree. The main question to be determined in this case is the second question, namely, as to the whether the amended portion of the decree should be held to be illegal. 2. Counsel for the defendant - appellants contended that the decree should not have been amended without giving opportunity to them to be heard. He has further contended that the order of amendment dated 16th September 1978 does not mention any reason for amendment and it is wholly vague. On the other hand, counsel for the plaintiff decree holders vehemently argued that no notice is required to be given to the other side under the provisions of section 152 of the Code of Civil Procedure. He submitted that if notice is required to be given, tile statute should have said so expressly and in support of this contention he drew my attention to the provisions of section 24 of the Code of Civil Procedure. He further contended that the decree must agree with he judgment as provided by Order XX rule 6 of the Code of Civil Procedure and in this case the amendment was inconformity with the judgment of the lower appellate court. Both parties cited several decisions but it is not necessary to refer to all of them, they being not relevant on the point in issue. The real point in issue is as to whether the decree should have been amended without notice to the defendant appellants. In my opinion, the answer is in the negative. Undoubtedly there is inherent power in the Court which passes the judgment to correct clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. In my opinion, the answer is in the negative. Undoubtedly there is inherent power in the Court which passes the judgment to correct clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. However, I am of definite opinion that amendment of the decree under section 151 or 152 of the Code should not be allowed by the Court without notice to the other side. In Satyabati Pradhan V. Kanhai Pradan, it was held that when the Court amends a decree in exercise of its jurisdiction under section 151 or 152, it can do so only after notice to the parties affected by the amendment. In an Andhra Pradesh case P. Abkinnedu V. Sri Bavaji Mutr the amendment of the decree had been made behind the back of the appellant of that case. It was observed as follow :- “The neat question I desire to consider is whether the amendment itself should be allowed to stand. Both the courts below had held that the remedy for rectifying the amended decree lies else where an d not in execution. That proposition can not be demurred to. But the Constitution of India invests this power in the High Court under Article 227. It is to set right such blatant miscarriage of justice, that such power is conferred and I propose to exercise it and, accordingly, Order that the amendment of 8.1.1951 is expunged and removed from the decree.” Having regard to the principles laid down in the aforesaid cases and after having considered the submissions raised on behalf of the parties I am of the opinion that the Additional District Judge acted illegally and without jurisdiction in ordering amendment so hastily on 16th September 1978, without any notice to the defendants and behind their back. The records were received on that day. The Seristedar was asked to report that day, which report was given and then the amendment was ordered on that very day. It is not understandable as to why the Additional District Judge was so much in haste in passing the order of amendment. He did not even mention the ground on which he allowed the amendment. The Seristedar was asked to report that day, which report was given and then the amendment was ordered on that very day. It is not understandable as to why the Additional District Judge was so much in haste in passing the order of amendment. He did not even mention the ground on which he allowed the amendment. He should have said in his order as to whether he is doing so under his inherent power under section 151 or under section 152 because there was an error arising from an accidental slip or omission. He has said nothing. He has simply allowed the amendment. I think that such order is arbitrary and whimsical. It is also against the principles of natural justice and cannot be allowed to stand. 6. The result is that the appeal succeeds and it is hereby allowed. The amended portion of the decree as well as the order of amendment dated 16th September, 1978, are set aside and the amendment of 16th September. 1978. is expunged and removed from the decree. The case regarding amendment is sent back and the lower appellate court is directed to proceed to dispose of the application for amendment dated 13th September, 1978, after bearing both the parties and in accordance with law. In the circumstances of the case there shall be no order as to costs. Appeal allowed.