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2012 DIGILAW 437 (ORI)

Santosh Kumar Sahoo v. Radhanath Sahoo

2012-10-04

M.M.DAS

body2012
ORDER 4.10.2012 - Heard Mr. Pattnaik, learned counsel for the petitioner and Mr. Samal, learned counsel appearing for the opposite parties. 2. This writ petition arises out of an order passed by the learned Civil Judge (Senior Division), First Court, Cuttack in C.S.No. 234 of 2003, which was filed for partition. The defendants are opposite parties, who have entered appearance through their learned counsel. The suit was finally decreed on compromise before the Permanent and Continuous Lok Adalat. Basing on the said decree, when the parties wanted to mutate their respective lands allotted to them in the final decree, they found that there was a mistake in the description of the suit property mentioned in the final decree drawn up in the stamp paper in respect of the Khata number. An application was filed for correction of the final decree. The learned Civil Judge rejected the said prayer by the impugned order on the ground that the final decree has been drawn up in stamp paper and the said mistake is not a mistake of the Court while drawing up the final decree, which is drawn up in accordance with the compromise petition, which forms a part of the decree and in that event, any correction made would be beyond the parameters of law. 3. The petitioner and the opposite parties contend before this Court that since the correction is not prejudicial to any of the parties and is an outcome of a bona fide mistake which occurred in the pleadings and thereafter in the compromise petition, this is a fit case where the Court should have allowed the petition to correct the Khata numbers of the suit property and to insert he khata number where it was left blank. 4. Mr. Patnaik, learned counsel for the petitioner relied upon the decision in the case of Peethani Suryanarayana and another v. Repaka Venkata Ramana Kishore and others, (2009) II SCC 308. The Supreme Court in the said case was dealing with a similar situation where in a final decree, a Town Survey number was required to be corrected, which was also mentioned in the plaint. The Supreme Court in such situation held that the power of Court to allow such an application for amendment of the plaint is neither in doubt nor in dispute. Such a wide power on the part of the Court circumscribed by the factors viz. The Supreme Court in such situation held that the power of Court to allow such an application for amendment of the plaint is neither in doubt nor in dispute. Such a wide power on the part of the Court circumscribed by the factors viz. (i) the application must be bona fide; (ii) the same should not cause injustice to the other side; (iii) it should not affect the right already accrued to the defendants. 5. Applying the above ratio to the facts of the present case, it is seen that all the factors as mentioned above are satisfied in the present case as the mistake is a bona fide one and since both the parties agree for such correction, it cannot cause injustice' to any of them' inasmuch as by correcting the plaint and the compromise petition by way of amendment as well as the final decree, the same would not affect the' right accrued in favour of any of the parties. Rather incorrect description of the property would lead to a complex situation which may give rise to further proceedings inasmuch as the incorrect final decree neither can be worked out nor will beneficial to any of the parties. 6. I, therefore, find that the trial Court is not correct in rejecting the applications under Section 151 and 152 C.P.C. for correction. In that view of the matter, the Trial Court is directed to allow the amendment of the plaint and the compromise petition as well as the correction in the final decree. A consolidated copy of the plaint shall be filed by the petitioner after correction along with a fresh compromise petition giving correct description of the property after being signed and sworn to by the parties except Radhanath Sahu, who was the original defendant No.1 and has expired in the meantime and no substitution is necessary as all his legal heirs are already on record. Upon filing of the consolidated copy of the plaint and fresh compromise petition, the trial Court shall correct the final decree which shall be resubmitted for carrying out such correction. Parties may thereafter approach the revenue authorities for mutating their names in respect of their lands which have fallen to their respective shares as per the corrected final decree. This writ petition is accordingly disposed of. Urgent certified copy of this order be granted on proper application. Petition disposed of.