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2008 DIGILAW 354 (CAL)

Anil Kr. Ray v. Kshama Rani Dutta

2008-04-01

TAPAN KUMAR DUTT

body2008
JUDGMENT:- (1) HEARD learned Advocates for the respective parties. Very briefly, the facts of the case are as follows. (2) THE opposite parties obtained a decree for recovery of possession against the petitioner and challenging such decree the petitioner preferred an appeal but such appeal was dismissed after contested hearing. It appears from the submissions made by the learned advocates for the respective parties that during the proceedings, either before the learned Trial Court in the suit or before the learned Lower Appellate Court in the appeal, no dispute was ever raised with regard to the identity of the suit proper. In other words, the judgment debtor was fully aware of the suit property in respect of which litigation was proceeding. It further appears, as submitted by the learned senior Advocate for the opposite parties, and not disputed by the learned advocate for the petitioner, that during the pendency of the suit the plaint had to be amended and the amended plaint was filed in the suit itself. (3) THE learned senior advocate for the opposite parties submitted by producing a copy of the original plaint that in Schedule "c" of the original plaint the correct description was given but when the amended plaint was filed a typographical error crept in the said Scheduled "c" of the plaint. Instead of "south Eastern" side room there was a typographical error to the effect that it was mentioned as "south Western" side room. To be more precise the said learned senior advocate submitted that in the original plaint the word "eastern" was correctly written but in the amended plaint instead of the word "eastern", the word "western" was wrongly typed. (4) AFTER the suit was decreed by the learned Trial Court the opposite parties had put the decree into execution giving rise to ejectment Execution Case. (5) IT appears that the opposite parties/decree holders, subsequently, had filed two applications. In one application the opposite parties intended to amend the plaint and in the other application the opposite parties intended to amend the execution application. In the application for amendment of plaint the opposite parties intended to delete the name of the defendant No. 2 from the cause title of the plaint and also delete the word "defendants/opposite Parties" and in its place intended to have the word "defendant" be incorporated. In the application for amendment of plaint the opposite parties intended to delete the name of the defendant No. 2 from the cause title of the plaint and also delete the word "defendants/opposite Parties" and in its place intended to have the word "defendant" be incorporated. Another amendment which was sought for by the opposite parties was to the effect that in Schedule "c" of the plaint instead of the word "south Western", the word "south Eastern" should be incorporated. The learned Senior Advocate for the opposite parties submitted that the error was in respect of the amended plaint. The said applications were contested by the petitioner and by the impugned order the learned IVth Bench, Small Causes Court at Calcutta allowed both the applications. Being aggrieved by such order the petitioner has moved this Court under Article 227 of the Constitution of India. The learned advocate appearing on behalf of the petitioner/judgment debtor submitted that so far as the order passed on the application under section 152 read with section 151 of the Code of Civil Procedure is concerned, the petitioner is not aggrieved by the said order. According to the said learned Advocate the petitioner intends to challenge the order passed on the application under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure whereby the prayer for amendment of the plaint was allowed. The learned advocate for the judgment debtor/petitioner did not challenge the amendment in so far as the deletion of the name of the defendant No. 2 from the cause title of the plaint and replacing the words "defendants/opposite Parties" by the word "defendant" are concerned. The said learned Advocate submitted that the only challenge against the impugned order is with regard to that portion of the impugned order whereby the Scheduled "c" of the plaint was allowed to be amended. The learned senior advocate for the opposite parties has produced a copy of the original plaint and also a copy of the amended plaint which was filed in the suit concerned and it appears from a perusal of Scheduled "c" in the copies of the two plaints, as aforesaid, that in the original plaint the words "south Eastern" side room was mentioned, but in the copy of the amended plaint the words "south Western" side room have been mentioned. Let such copies of the plaints, as aforesaid, which have been filed in Court today by the learned senior advocate for the opposite parties be kept on record. (6) THE learned advocate for the petitioner submitted that the learned Trial Court and/or Executing Court could not have allowed the amendment of the plaint Schedule, in view of the fact that an appeal was preferred against the learned Trial Courts decree and since the appeal has been dismissed on contest the decree of the learned Trial Court has merged with the learned Lower Appellate Courts decree and, therefore, the learned Trial Court and/ or Executing Court did not have the jurisdiction to allow the amendment of the plaint. The learned Advocate for the petitioner cited a judgment reported at AIR 1974 SC 1380 (M/s. Gojer Brothers (P) Ltd. v. Shri Ratan Lal Singh) and referred to paragraphs 15 and 18 of the said reports in support of his aforesaid submission. In the said reports the Honble Supreme Court was pleased to observe that where the decree of the learned Trial Court is carried in appeal and the appeal is disposed of after a contested hearing the decree to be executed is the decree of the Appellate Court. In Paragraph 1/8 of the said reports the Honble Supreme Court has been pleased to observe that the fundamental reason of the above rule is that the decree of the Trial Court merges in the decree of the learned Lower Appellate Court. The said learned Advocate also referred to a decision reported at AIR 2002 Calcutta 108 (Mehta Suraya and etc. v. United Investment Corporation). The said learned advocate referred to paragraph 29.4 of the said reports wherein it appears that the Honble Judge took into consideration M/s Gojer Brothers (P) Ltd, case (supra). Reference was also made by the said learned advocate to paragraph 27 of the said reports wherein the Honble Judge was pleased to observe that once a judgment is delivered it is only correction which can be brought about and which is permitted under section 152 of the Code of Civil Procedure and the provision for amendment does not apply in such a case. It has been further observed by the Honble Judge in the said reports that when the Court makes it, it is a correction of its own mistake, error or omission and that too, within the meaning of section 152 namely, a clerical or arithmetical mistake or accidental slip or omission. (7) THE learned senior advocate for the opposite parties submitted that the Executing Court has the power to make necessary amendments in the plaint and/or in the decree if the situation so warrants in the interest of justice. According to the said learned senior advocate a decree holder cannot be deprived of the fruits of the decree which has been passed in his favour only on the ground of some technical defects, if any. The said learned Advocate submitted that by passing the impugned order the learned Court below has not committed any "mistake and the learned Court below was fully justified in passing the impugned order by allowing the plaintiff/decree holder to amend his plaint. Reliance was placed by the said learned senior advocate on 1995 Supp (4) Supreme Court Cases 582 [tiko (Smt) and Others v. Lachmon]. In the said reports the Honble Supreme Court was pleased to hold in paragraphs 3 and 4 of the said reports as follows: "3. Technically speaking the executing Court could not go beyond the decree and hence the order passed by it is not assailable. But the executing Court was also the Court which could have amended the plaint and the decree. Counsel for the appellants states that although the decree was passed by Sub-Judge Class III. Sonepat, the very same Court later exercised powers as Sub-Judge Class I and was executing the decree. It was, therefore, open to that Court to treat the application as an application made before the decretal Court and proceed to dispose of the same in accordance with law. 4. In the circumstances we direct that the application made by the appellants for amendment of the plaint and consequential amendment of the decree may be treated as an application made in the original suit proceedings and be disposed of in accordance with law. The appeal will stand disposed of accordingly with no order as to costs". 4. In the circumstances we direct that the application made by the appellants for amendment of the plaint and consequential amendment of the decree may be treated as an application made in the original suit proceedings and be disposed of in accordance with law. The appeal will stand disposed of accordingly with no order as to costs". (8) IN the facts and circumstances of the said reports it will appear that after the suit was decreed a First Appeal and also Second Appeal was filed but such appeal failed and thereafter the application was made for amendment of the plaint and the decree to correct the area and the description of the property in question. Such application was moved before the learned Executing Court which dismissed it holding that it could not go beyond the decree and the Honble High Court concerned dismissed the revision petition. But the Honble Supreme Court was pleased to pass the order as indicated above. (9) THE next decision cited by the learned senior advocate for the opposite parties is the one reported at 2007 (7) Supreme 687 (Navamat Ali Molla v. Sonargon Housing Cooperative Society Ltd. and Ors.). In paragraph 21 of the said reports the Honble Supreme Court considered a Calcutta High Court decision and quoted with approval the following passage from such decision. "i shall now state, what in my opinion, is the true meaning of section 152, Civil P.C.I am not in favour of giving a narrow construction to section 152. I do not agree that section 152 must necessarily refer to an accidental slip or omission of the Court itself, or its ministerial officers. It does not say so in the section itself, and should not be interpreted as such. Where it is the Courts own accidental slip or omission, or that of its ministerial officers, there can be no doubt that the section applies. But it gives power to rectify any accidental slip or omission in a judgment, decree or order, and might include an accidental slip or omission traceable to the conduct of the parties themselves. But it must be an accidental slip or omission. A mistake made by the parties in a, deed upon which the suit is founded, and repeated in the judgment, decree or order, may or may not be an accidental slip or omission. But it must be an accidental slip or omission. A mistake made by the parties in a, deed upon which the suit is founded, and repeated in the judgment, decree or order, may or may not be an accidental slip or omission. Where it is clear, that such is the case, then I do not see why the Court cannot set it right". (10) IN paragraph 24 of the said reports the Honble Supreme Court was pleased to" quote with approval another judgment rendered by the Honble Supreme Court Paragraph, 24 of the said reports is also quoted below: "24. The same Bench again in Pratibha Singh and Ors. v. Shanti Devi Prosad and Anr. ( AIR 2003 SC 643 ) held: "when the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the Court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree, Resort can be had to section 152 or section 47 of the CPC depending on the facts and circumstances of each case-which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under section 152 of the CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke section 47 of the CPC". (11) PARAGRAPH 26 of the said reports is also quoted below:-"26. It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. (11) PARAGRAPH 26 of the said reports is also quoted below:-"26. It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. It is also not a case where by reason of an amendment, one property is being substituted by the other. If the Court has the requisite power to make an amendment of the decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. If the appellant herein did not file any written statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate-Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule was missing, the same by itself would not be a ground to interfere with the impugned order. " (12) THE learned senior advocate for the opposite parties referred to another decision reported at 2002 (2) CHN 133 (Sailendranath Tapaswi and Ors. v. Netai Sundar Acharya). In the said reports an Honble Judge of this Court was also pleased to hold in paragraph 11 of the said reports that the "learned Executing Court rightly held that there was an apparent mis-description of the property in the plaint and the real width of the passage would be reflected from the judgment of the learned trial Judge. The learned Executing Court below, therefore, rightly allowed such amendment". In the said reported case, the Honble Judge was pleased to reject the technical plea as has been raised by the learned advocate for the petitioner in the instant case. The learned Executing Court below, therefore, rightly allowed such amendment". In the said reported case, the Honble Judge was pleased to reject the technical plea as has been raised by the learned advocate for the petitioner in the instant case. (13) HAVING considered the aforesaid reported cases and the facts and circumstances of the instant case, this Court is of the view that even though the technical plea, as has been raised by the learned Advocate for the petitioner, can be raised in such cases but in the interest of justice such technical plea and/or argument cannot be accepted. In the instant case there was never any dispute with regard to the identity of the Schedule "c" of the plaint, no party had ever raised any such dispute even by way of argument either before the learned Trial Court or before the learned Lower Appellate Court. It appears that it was only at the time of putting the decree into execution, the decree-holder found that a typographical mistake had crept in the amended plaint. The learned Court below has only allowed such mistake to be rectified. Unless the judgment and decree which have been passed in favour of the opposite parties are upset by an appropriate Court, the plaintiffs/ decree holders cannot be deprived of the fruits of such decree. That apart, the impugned order has not occasioned any prejudice to the petitioner and has not in any way caused any failure of justice. This Court, therefore, overrules the technical plea raised by the petitioner, as indicated above, and following the judgments laid down by the Honble Supreme Court and also by this Honble Court, finds that there is no merit in the present application under Article 227 of the Constitution of India. (14) THE application under Article 227 of the Constitution of India is dismissed. There shall, however, be no order as to costs. Urgent Xerox certified copy of this order, if applied for, shall be given to the learned Advocates for the parties on compliance of usual formalities. Application dismissed.