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2012 DIGILAW 1097 (GAU)

Kaloram Patar v. Ghana Hira

2012-09-13

A.K.GOSWAMI

body2012
JUDGMENT Hon'ble Dr. Justice A.K. Goswami 1. Heard Mr. A. Sarma, Learned Counsel for the petitioners. Mr. Sharma, Learned Counsel has submitted that respondents have not appeared before this Court despite service of notice. This is an application under Section 115 read with Section 151 of the Code of Civil Procedure. Under challenge are the orders dated 22.02.2006 and 28.02.2006 passed by the learned Civil Judge (Junior Division) No. 2, Morigaon in Title Execution No. 4/2005 arising out of Title Suit No. 9 of 2002. 2. The petitioners, as plaintiffs, instituted a title suit against the present opposite parties and one Sri Panchal Bordoloi which was registered as Title Suit No. 9/2002 in the Court of Civil Judge (Junior Division) No. 2, Morigaon for declaration of right, title and interest in respect of the suit land described in Schedule A of the plaint, and for khas possession of the suit land by evicting the principal defendants along with other members of their families etc. 3. The defendants contested the suit by filing written statement and it is pleaded in the written statement that brother of the plaintiff No. 1, namely, Kaloram Patar had sold his share on verbal agreement to the defendant No. 1 and since then they have been possessing the suit land. 4. At the trial, plaintiff examined three witnesses and the defendant adduced the evidence of two witnesses. 5. On conclusion of the trial, the learned Civil Judge (Junior Division) No. 2, Morigaon, vide its judgment and decree dated 31.10.2003, decreed the suit of the plaintiffs. 6. The appeal preferred being Title Appeal No. 8/2004, was also dismissed by judgment and decree dated 24.03.2005 passed by the learned Civil Judge (Senior Division), Morigaon. 7. The petitioners filed Title Execution Case No. 4/2005 and at the time of execution of the decree, it was noticed by the petitioners that due to inadvertent mistake of the engaged advocate, in the schedule A of the plaint, Rupahibori was inserted in place of Garmari Kissan and in paragraph 1, instead of Garmari Kissam, it was written as Farmari Kissam. 8. In view of the aforesaid, the petitioners filed a petition under order VI Rule 17 read with Section 151 CPC praying for the aforesaid corrections by way of necessary amendment. 8. In view of the aforesaid, the petitioners filed a petition under order VI Rule 17 read with Section 151 CPC praying for the aforesaid corrections by way of necessary amendment. An objection was filed to the said petition contending that after adjudication, there is no scope for any amendment due to any mistake on the part of the parties. It is also pleaded in the said objection that under Section 152 of the CPC, amendment of pleading is barred and the Court has no jurisdiction to entertain the said application for amendment. 9. By the order dated 20.02.2006, the learned executing Court, agreeing with the contentions advanced on behalf of the judgment debtors, dismissed the petition holding that at the execution stage, amendment of the plaint cannot be allowed and Section 152 CPC allows only amendment of judgments, decrees etc. to correct errors arising from any accidental slip or omission. 10. By the order dated 28.02.2006, the execution case was dismissed on contest. As has been noted earlier, the aforesaid two orders have given rise to the filing of the present revision application. 11. Mr. A. Sarma, Learned Counsel for the petitioners submits that there is no dispute with regard to the identity of the suit land and the learned Court below committed material irregularity in holding that amendment cannot be allowed at the execution stage. The Learned Counsel submits that the learned Court below adopted a technical approach, which is not sustainable in law and he submits that it is permissible under Section 152 CPC for the Court to correct accidental slip or omission on the part of the parties also. The Learned Counsel in support of his submission, relies on the following cases, namely, (i) Niyamat Ali Molla versus Sonargon Housing Cooperative Societies Ltd. and others, reported in (2007) 13 SCC 421 (ii) CRP No. 323 of 1999, Kulanath Saikia and another versus Smt. Madhabilata Saikia and others) decided by this Court on 24.21.2000 and (iii) Sukhendu Bikash Laskhar versus Narayan Chandra Bhowmik, reported in 2012 (3) GLT 899. 12. 12. Schedule A of the plaint reads as follows: SCHEDULE 'A' (Description of the suit land) (1) One plot of land measuring 1(one) Bigha 4(four) kathas 12(twelve) lessas in total area jointly covered by two adjacent and continuous Dags No. 189 and 200 containing 0B-3K-12L and 1B-1K-0L of land respectively of P.P. No. 188 of Rupahibori Kissam under mauza Dandua in the Dist. Of Morigaon (Assam) and bounded by :- North: Land of Dulal Deka; South: Govt. Road, East: Land of Thuleswar Deka, Tankeswar Bania and Rati Sarkar, West: Land Palam Biswas & Lakhi Sarkar. 13. DW-1 deposed that he knew the suit land, which is measuring 1B-4K-12L in Garmari Kissam under Dandua Mouza. DW-2 also made the same statement. Therefore, it is not a case where defendants could be said to have been mislead due to wrong description of the "Kissam". As a logical corollary, it is not a case that by reason of amendment, one property is being substituted by the other. 14. But the question is whether at this stage, an application for amendment could be allowed or the decree could be corrected at all. 15. In Kulanath Saikia (supra), the Dag number was wrongly mentioned in the plaint. Instead of Dag No. 1267 of P.P. No. 103 and Annual Dag No. 1268, it was mentioned as Dag No. 941 of P.P. No. 103. Because of long pendency of the suit, there were also a change in the northern boundary and in such circumstances, an application was filed for correction of the same. The prayer of the plaintiffs was rejected by the Court below. This Court held that if no prejudice is caused to the defendant, under Section 152 of CPC, accidental slip or omission of the parties in pleading can also be corrected. 16. In Niyamat Ali Molla (supra), in the schedule of the plaint, RS plot number and Khatian number were not inserted and accordingly, an application for amendment was filed for amendment of the plaint and decree to insert relevant figures. The Apex Court affirmed the view taken by Calcutta High Court in Bela Devi versus Bon Behary Roy, reported in AIR 1952 Cal 86 that Section 152 CPC gives power to rectify any accidental slip or omission in a judgment and decree or order and might include an accidental slip or omission traceable to the conduct of the parties themselves. The Apex Court affirmed the view taken by Calcutta High Court in Bela Devi versus Bon Behary Roy, reported in AIR 1952 Cal 86 that Section 152 CPC gives power to rectify any accidental slip or omission in a judgment and decree or order and might include an accidental slip or omission traceable to the conduct of the parties themselves. It was also held in the said case that the Court need not correct the pleadings, as what is going to be rectified, is the judgment and decree. 17. Similar view has been taken in Sukhendu Bikash Laskhar (supra), wherein it was held that giving a wrong description of the plot number is accidental slip or typographical error. This court held that application for amendment of the plant can be entertained only up to the appellate stage and not beyond. This Court also held that without amendment, decree can be corrected under Section 152 CPC. 18. In view of the aforesaid discussion, the order dated 20.02.2006 is clearly not sustainable in law and as such, the same is set aside and quashed. 19. The order dated 28.02.2006 was passed dismissing the execution case consequent upon the order passed on 22.02.2006 and therefore, with the setting aside of the order dated 22.02.2006, necessarily, the order dated 28.02.2006 is required to set aside and quashed. Accordingly, the same is set aside and quashed. The execution case is revived and the learned executing Court will now correct the decree by correcting the name of the Kissam as "Garmari" instead of "Rupahibori". 20. With the aforesaid directions and observations, the Civil Revision Petition is allowed. No Cost. Registry will send back the Lower Court Records. Petition allowed