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2002 DIGILAW 123 (CAL)

Sindhu Nath Pahan @ Mondal v. Nishi Kanta Pahan

2002-02-22

ALOK KUMAR BASU

body2002
JUDGMENT The judgment of the Court was as follows :–– This application under Article 227 of the Constitution is directed against the order dated 31.8.1998 passed in Civil Revision No.2 of 1997 by the learned Additional District Judge, 1st Court, Balurghat, Dakshin Dinajpur. 2. Despite service of notice upon the opposite parties, nobody has appeared to represent the case of the opposite parties at the time of hearing. Let the affidavit of service filed on behalf of the petitioner be kept in the record. 3. There was a partition suit between the present petitioner and the opposite parties along with opposite party No.5 who joined with the petitioner in the class of defendants in the Partition Suit No. 40 of 1985. The preliminary decree was passed in that partition suit whereby the petitioner as defendant got declaration of share to the tune of 3 annas 6-2/3 pai while the plaintiff-opposite parties got declaration of share to the tune of 12 Annas 5-1/3 pai and subsequently the decree was upheld by Appellate Court. 4. After passing of the preliminary decree, opposite party No.4 sold 7/8 Decimal of land out of his allotted share through the preliminary decree to the petitioner by a registered deed dated 14.8.1995 and petitioner thereafter made an application before the trial Court for amendment of the preliminary decree to the effect that share of the plaintiff-opposite parties consequent upon the registration of the sale deed dated 14.8.1995 would be 11 Annas 1-1/3 pai and the share of the petitioner/defendant would be 4 Annas 10-2/3 pai. 5. The petitioner filed the application under Section 152 of the Code of Civil Procedure and said petition was strongly contested by opposite party No.4 and by an order dated 24th April, 1997 the trial Court allowed the application for amendment of the preliminary decree. The opposite party No.4 thereafter filed Civil Revision Case No.2 of 1997 challenging thereby the order of the trial Court by which the prayer for amendment of the preliminary decree was allowed and the learned Additional District Judge, First Court, Balurghat by his order dated 31st August, 1998 allowed the revision case and set aside the order of the trial Judge holding inter alia that the order was bad and illegal. 6. 6. The petitioner has approached this Court under Article 227 of the Constitution to challenge the order of the learned Additional District Judge dated 31st August, 1998 mainly on the ground that the learned Judge did not apply his mind while setting aside the order of the trial Court and in fact the learned Judge failed to exercise his jurisdiction in allowing the Revision Case No.2 of 1997. 7. Appearing in support of the petition, Dr. Indrajit Mondal submits that admittedly Section 152 of the Civil Procedure Code cannot have any application in the given facts and circumstances for correction of the preliminary decree, but, it is well established principle of law that Justice cannot be denied merely for quoting of wrong section and the Court must look into the real intention of the party and Civil Court is always competent, if otherwise satisfied, to grant relief to a deserving party exercising its inherent power under Section 151 of the Code of Civil Procedure. 8. Dr. Mondal submits with reference to a decision reported in (1) AIR 1989 Calcutta page 159 (Division Bench) that in a Partition Suit, even after preliminary decree, if on the basis of subsequent events, there are changes in the situation including changes in the grouping of shares amongst the parties or acquisition of shares of other co-sharers by some of the co-sharers for which the decree for partition can be suitably moulded, the Court can and should do so and in such circumstances, the variation of the preliminary decree can always be made. Dr. Mondal concludes that from the impugned order it will appear that the learned Judge was of the view that as Section 152 Civil Procedure Code had no application, the order of the trial Court cannot be accepted as legal or just and on that ground alone he set aside the order of the trial Court. 9. Dr. Mondal submits that the validity of the deed under which petitioner acquired further share in the joint property was not subject of challenge in the revision application and thus, considering the point of law on this issue already settled by this Hon'ble Court, the impugned order cannot be sustained and the same is liable to be set aside. 10. Having regard to the submissions made by Dr. Mondal and having regard to the decision cited in the case of Kalyan Kr. 10. Having regard to the submissions made by Dr. Mondal and having regard to the decision cited in the case of Kalyan Kr. Basak v. Slilf Kr. Basak and Others (supra), I find that in that cited case the Division Bench of this Court following the principle of law enunciated by the Apex Court and reported in (2) AIR 1967 Supreme Court page 1470 already settled the issue whereby it is found that there is nothing in the Code of Civil Procedure which prohibits passing of more than one preliminary decree if in the facts and circumstances of a case and in consideration of equity and Justice, such variation of preliminary decree is warranted. 11. From the copy of the order annexed to the petition and passed by the trial Court, it appears that on a contested hearing the validity of the sale deed executed in favour of the present petitioner by opposite party No.4 was accepted and on that basis the trial Court allowed the prayer for amendment of the preliminary decree. 12. The learned Additional District Judge in the impugned order misdirected himself on two points, first he was of the view that without making any amendment in the judgment, no amendment can be made in the decree itself and secondly Section 152 cannot have any application in the matter of correction of decree already passed when admittedly there was no clerical or arithmetical error in the body of the decree. 13. As regards the first point, it can be stated that observation of the learned Additional District Judge was not correct, particularly, in view of the decision already cited and which was also considered by the trial Court and as regards the second point, the learned Judge ought to have considered that in Civil Court there was ample scope for granting relief in appropriate cases by applying the correct section of the Code by the Court itself and on the ground of mentioning of wrong section relief to a deserving party cannot be denied. 14. Thus, after hearing the submission of the learned Advocate for the petitioner and having regard to the point of law already settled in the cited case, I am of the view that the order of the learned Additional District Judge impugned in the present application cannot be sustained in the eye of law and the same is liable to be set aside. 15. The application accordingly succeeds, but, there will be no order as to costs. 16. The order of the learned Additional District Judge, First Court, Balurghat dated 31st August, 1998 is hereby set aside and the order of the trial Judge dated 24th April, 1997 allowing amendment of the preliminary decree is allowed. 17. The order of stay of all further proceedings of Partition Suit No. 40 of 1985 is hereby vacated and the learned trial Court is directed to resume the hearing from the stage when the stay was granted. 18. Send a copy of this order to the Court below as expeditiously as possible. Xerox certified copy of this judgment, if applied for, may be supplied within seven days after complying with all necessary formalities.