Vasudevan v. Lakshmi — 1999 DIGILAW 601 (KER)

Judgment :- M.R. Hariharan Nair, J. The plaintiff in O.S.779 of 1992 of the Munsiff s Court, Kannur challenges the orders passed by that Court disposing of LA. Nos. 2687/95,2688/95 and 3453/1995. 2. The suit was for a declaration that the plaint schedule house is the exclusive property of the plaintiffs, that the ownership and possession of the property rests with the plaintiff and that the defendant has no right or possession over it except as a maid servant and for a mandatory injunction directing the defendant to leave the house without making any claim over it and also for recovery of damages at the rate of Rs. 50/- per mensum for use and occupation of the plaint schedule building from the date of plaint till date of vacating the house and for costs of the suit. The defence contentions raised were found to be untenable and ultimately, the Court passed a decree declaring the plaintiffs as the title holders of the plaint schedule property and that the defendant has no substantive right over the plaint schedule property and also granting a mandatory injunction directing the defendant to vacate the plaint schedule building. The plaintiff was also allowed costs of the suit. 3. A.S.34 of 1994 before the District Court, Thalassery, filed by the defendant challenging the decree did not yield any relief and thereupon E.P. 387/1994 was filed by the revision petitioner for execution of the decree. It was at that stage that the plaintiff came to know that by an in advertant omission, there was actually no schedule incorporated in the plaint. I. A. 2687/1995 was therefore, filed invoking Ss.151 and 152 of the Code of Civil Procedure for amendment of the plaint including the schedule of property. The prayer in I. A. 2688/95 was for amendment of the decree to make it in conformity with the amended plaint. The prayer in I.A. 3453/95 was to call for the records from the execution court. All these petitions were dismissed. It is the legality, regularity and propriety of the aforesaid orders that are impugned herein. 4. I have heard both sides. 5. The reason given for not calling for records from the execution court was that the petition to amend the plaint and decree have been dismissed and the petition was hence unnecessary. All these petitions were dismissed. It is the legality, regularity and propriety of the aforesaid orders that are impugned herein. 4. I have heard both sides. 5. The reason given for not calling for records from the execution court was that the petition to amend the plaint and decree have been dismissed and the petition was hence unnecessary. The reason for dismissal of the applications for amending the plaint and decree was that the contention that the omission was inadvertant was unacceptable. The Court opined that after the final disposal of the suit through the appellate judgment such applications were untenable. It is also observed that in case the application for amendment of plaint was allowed that will require an opportunity to the defendant to file additional written statement and in case of dispute regarding identity further enquiry will be required. The Court was also of the view that since the suit is disposed of and the disposal is confirmed by the appellate court, there was no suit available before the trial court in which amendments could be effected. The Court was also of the view that if the petitions are allowed it will virtually reopen the case which was already disposed of on merits. 6. The above observations of the trial court are seriously challenged by the revision petitioner. It is pointed out that Ss.151 and 152 of the Code of Civil Procedure contemplates amendments and corrections as sought for herein and that the Court below erred in proceeding as though it had no jurisdiction after the disposal of the suit. Case Law was relied on to show that even after passing of the appellate judgment the trial court still has jurisdiction to invoke powers under Ss.151 and 152 of the Code so as to render justice to the parties. 7. This indeed is a unique, rather unusual case where the entire plaint schedule was missing when the case went to trial and the parties gave evidence and also when the rival contentions were elaborately argued before the appellate Court as well. No one noticed that there was no schedule at all in the plaint at any time until the matter reached the stage of execution. The lapse in the matter is not that of the plaintiff alone, but it rests on the defendant as well who failed to point out that there was no schedule in the plaint. No one noticed that there was no schedule at all in the plaint at any time until the matter reached the stage of execution. The lapse in the matter is not that of the plaintiff alone, but it rests on the defendant as well who failed to point out that there was no schedule in the plaint. The two Courts which dealt with the case have also strangely missed this fatal omission. However, all these are not reasons sufficient to reject the request for amendment of the plaint and decree. 8. S.151 of the C.P.C. relied on by the plaintiffs confers inherent jurisdiction on the Courts to take any step to advance the course of justice. Interests of justice is the primary consideration in granting or not granting prayers in a petition under S.151 of the C.P.C. No rule or procedure can curtail that power of the Court. If an order is essential to promote the cause of justice the Court will be entitled and indeed expected to pass the same irrespective of the stage of the suit. For this purpose, pendency of the suit will continue until the decree is executed and full satisfaction recorded. S.152 of the Code authorises the Court to carry out corrections in the plaint at any stage. The stage aforementioned will include the execution stage as well. There is hence no merit in the view taken by the Court below that the petition was not maintainable as it has been filed after the confirmation of the decree of the trial court by the appellate court. 9. The question will then arise whether after the disposal of the appeal and the merger of the trial court decree in the decree of the appellate court, the trial court is still left with the jurisdiction to amend the plaint? A survey of the relevant case law will be useful in this regard. 10. Tiko & Ors. v. Lachman (1995 Supp. (4) SCC 582) dealt with the powers of the executing Court in making amendments of plaint and decree. That was a suit for redemption of mortgage and the request was for amendment of the plaint schedule so that the description of the plaint property including the extent would be substantially changed. 10. Tiko & Ors. v. Lachman (1995 Supp. (4) SCC 582) dealt with the powers of the executing Court in making amendments of plaint and decree. That was a suit for redemption of mortgage and the request was for amendment of the plaint schedule so that the description of the plaint property including the extent would be substantially changed. The application for amendment was moved after disposal of the first and second appeals and after the plaintiff had even been put in possession of the land. The request was to make the plaint schedule in tune with the description in the mortgage deed. The execution court took the stand that it could not go beyond the decree and dismissed the petition. Ultimately, the matter reached the Supreme Court. The Court observed that though technically speaking, the executing court could not go beyond the decree and as such the order passed by it is not assailable, since that Court was also the Court which passed the decree, in that capacity, it could amend the plaint and decree. The contention that after the passing of the decree, no amendment of the plaint and decree was possible at the hands of the trial court was found unacceptable in the aforesaid case. It cannot, therefore, be said that the petition filed before the trial court in the instant case was not maintainable for the reasons stated in the impugned orders. 11. In Subramania Iyer v. Joseph George (1959 KLT 165) this Court dealt with a case where the boundaries of the schedule property alone had been wrongly described and the schedule was otherwise correct in so far as it related to survey number, extent, village etc. The question of correcting the plaint and the decree arose in the case for consideration. It was found that the language of S.152 of the Code which enables the Court to correct the 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. It was found that the language of S.152 of the Code which enables the Court to correct the 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. It does not exclude mistakes with regard to details of property also and there is no reason for restricting the scope of the Section to correction of errors made by the Court alone, mistakes having their origin anterior to the suit and repeated in the decree can also be corrected by exercise of jurisdiction under S.152. It was found that when there is defect in the description of the property owing to the accidental errors and the error is repeated in the plaint and the decree, the Courts have ample powers to rectify such errors. Nothing prevents the Court from doing justice in an appropriate case where such mistakes arise. A suit for rectification of the instrument and decree is not the only remedy. Even if an application for review may be appropriate, that also is not the only way and will not be an obstacle for exercise of jurisdiction under S.152 of the C.P.C. 12. Malayalam Plantations Ltd. v. Varkey Chacko (1969 KLT 710) dealt with the question whether the trial court will have jurisdiction to exercise powers under S.152 after the appellate court has confirmed its decision. It was held that in view of the principle of merger, the appellate court may amend a decree. But under Ss.151 and 152 of the Code of Civil Procedure, inherent jurisdiction is also vested in the original Court to correct clerical or arithmetical mistakes in its judgments, decrees or orders or errors arising therein from accidental slips or omissions, and that the inherent power can be exercised at any time. It was held that this inherent power is not lost by the mere fact that an appeal was filed or because the decree or judgment was confirmed, varied or reversed by the appellate court. The only limitation in the matter is that the trial court should be in seisin of the records of the case. If, however, the trial court is not in possession of the records, the forum will be the appellate court. The only limitation in the matter is that the trial court should be in seisin of the records of the case. If, however, the trial court is not in possession of the records, the forum will be the appellate court. The inherent jurisdiction of the original court will be confined to cases mentioned in S.152 of the Code, and so long as the records of the case are within its power. 13. In view of the legal principles aforementioned, there is no doubt at all that the Munsiff' s Court, Kannur which passed the impugned order had the jurisdiction to pass appropriate orders in exercise of powers under S.152 of the CPC. This is so, because there is no case for either side that the trial court is not in possession of the records concerned. Then what remains is whether this is a fit case for exercise of the power. No doubt, the omission in the case is of a serious nature; but a perusal of the records shows that it was also inadvertant. In para 1 of the plaint there was reference to plaint house as obtained under document No. 246/77 and under will No. 34/78. The obvious reference is to the description of the house in the intended plaint schedule. The matter had been taken to the Land Tribunal by the defendant through O.A. 85/ 75 wherein the structure concerned was dealt with elaborately. The order passed in the case on 30.7.1987 clarifies the position that the application related to purchase of kudikidappu of the building situated in T.S.316 of Ward No. II in Block 6 of Kannur Municipality. In para 4 reference is made to the deposition of the defendant with regard to the building in question. She stated that it was a terrace building with five rooms at the ground floor and one room in the first floor and that the building was obtained by her and her foster mother as kudikidappu from one K.M. Sahadevan in 1977. These details make it clear that the defendant was quite aware of the specifics of the building which was the subject matter of the case. In para 4 of the plaint schedule and in O.S.463/1985 which was also inter-parties, there is reference to the very same building. The written statement filed in the case also refers to the "Plaint schedule building". In para 4 of the plaint schedule and in O.S.463/1985 which was also inter-parties, there is reference to the very same building. The written statement filed in the case also refers to the "Plaint schedule building". Para 3 contains the assertion of the defendant that the defendant was residing in the plaint building along with her foster mother. Para 4 of the written statement further states that the plaintiff never visited the plaint schedule house. In para 5 of the written statement also there is reference to Will No. 34/ 78 wherein mention is made with regard to the plaint schedule house. 14. Thus, here is a case where both parties knew what exactly was the suitable out and also assumed that the 'plaint schedule' contained details of the building which was mentioned in Will No. 34/78 and also described in plaint schedule in O.S.463/1985. The parties were thus fully aware of what they were fighting about and that the subject matter is the building mentioned in Ext. Al document of 1977 about which also there was reference in the plaint. The details now sought to be introduced into the plaint in the schedule are exactly the same as given in the aforesaid document marked in the case as Ext. Al. The failure to include the schedule in the plaint was certainly the result of an inadvertant omission and there was every justification therefore, to allow the amendment of the plaint followed by the amendment of the decree also. The Court below has failed to approach the question from the right perspective and the impugned order is defective. In the result, the order under challenge is set aside and I. A. 2687/95 and 2688/1995 are allowed. The Court below will carry out corrections as prayed for in the petitions. Civil Revision Petition is allowed as above.