Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 1090 (AP)

Pedda Sunkamma v. C. Balasunkanna

2008-12-22

G.ROHINI

body2008
JUDGMENT : The petitioners herein are the plaintiffs in O.S.No.60 of 2001 on the file of the Court of the Additional Senior Civil Judge, Anantapur, in which a preliminary decree for partition of the suit schedule properties was passed 10.10.2001. Thereafter, the petitioners herein filed I.A.No.183 of 2002 for final decree by division of the suit schedule property by metes and bounds. Pursuant thereto, a Commissioner was appointed and he submitted a report stating that the items 1 and 3 of the B-Schedule cannot be divided into three shares and therefore suggesting to sell the same by public auction. Accordingly, by order dated 6.10.2005 the Court below appointed another Commissioner to conduct the auction for sale of items 1 and 3 of Plaint B-schedule Property after making necessary inspection. Having conducted such inspection, the Commissioner submitted a report stating that the boundaries of Item No.1 of B-Schedule property did not tally with the boundaries of the property existing on ground. Thereafter, the plaintiffs/Revision petitioners filed I.A.No.305 of 2007 under Sections 152 & 153 of C.P.C. with a prayer to amend the preliminary decree dated 10.10.2001 by substituting the boundaries of Item No.1 of B-Schedule Property with that of the boundaries shown in the Commissioner's Report. The said application was opposed by the defendant/respondent herein and after hearing both the parties the court below by order dated 20.6.2008 dismissed the application. Aggrieved by the same, the present Civil Revision Petition is filed by the plaintiffs. I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the petitioner while submitting that the discrepancy in the boundaries mentioned in the plaint schedule was only on account of a bona fide mistake, vehemently contended that the Court below ought to have ordered the amendment as prayed for in exercise of the powers conferred under Sections 152 and 153 of C.P.C. However, the learned counsel for the respondents contended that since Item No.1 of the B-Schedule Property was not in existence at all, the proposed amendment was rightly rejected. Section 152 of C.P.C. empowers the Court to amend the judgments and decrees by correcting the clerical or arithmetical mistakes and errors arising from accidental slip or omission. Section 152 of C.P.C. empowers the Court to amend the judgments and decrees by correcting the clerical or arithmetical mistakes and errors arising from accidental slip or omission. Similarly, Section 153 of C.P.C. provides for amendment of any defect or error in any proceeding in a suit for the purpose of determining the real question or issue raised by or depending on such proceeding. It has been interpreted by the Courts that the clerical or arithmetical mistakes and errors arising from accidental slip or omission which can be corrected in exercise of the powers under Section 152 of C.P.C. are inadvertent mistakes which can be discovered without any further enquiry on question of law or fact and which are apparent on the face of the record. In the present case, it is not as if the boundaries of Item No.1 of B-Schedule Property in the Preliminary Decree are in variance with the boundaries mentioned in the plaint schedule. Admittedly, the mistake is in the plaint itself. It is pleaded by the petitioners that being illiterates they could not furnish the correct boundaries which was only a bona fide mistake and that they came to know about the variance in the boundaries only from the report of the Commissioner who opined that the property as described in Item No.1 of B-Schedule was not existing at all on the ground. Whether the property so identified by the Commissioner on the ground, the boundaries of which are completely in variance with the boundaries mentioned in the plaint schedule as well as the preliminary decree, is the very same property claimed by the plaintiffs as joint family property or not is a question which requires a detailed enquiry on appreciation of the evidence that may be produced by the parties. Such a variance in the boundaries of the property which gave rise to a doubt as to the very existence of the property claimed by the plaintiffs cannot be treated as a clerical or arithmetical mistake or error arising from accidental slip or omission which can be corrected in exercise of powers under Section 152 of C.P.C. The general power conferred under Section 153 of C.P.C. to amend any defect or error in any proceeding in a suit is also not available since the proposed amendment cannot be held to be either a defect or an error in a proceeding. For the aforesaid reasons, the Court below cannot be held to have committed any error in dismissing the application for amendment of the preliminary decree. Accordingly, the Civil Revision Petition is dismissed. No costs.