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Madhya Pradesh High Court · body

2013 DIGILAW 1287 (MP)

Muniya Bai v. Golman

2013-10-25

K.K.TRIVEDI

body2013
ORDER 1. This revision is directed against the order dated 20.7.2011 passed in MJC No.07/2008 by First Additional District Judge, Betul by which applications under sections 151 and 152 CPC made by the applicant have been rejected. 2. It is contended that a suit was filed by the applicant/plaintiff against the defendants for declaration and permanent injunction with respect to certain suit land. It was described in the plaint that the land bearing Kh.No.319/1 area 0.891 hectare was the land obtained by the applicant in a partition. However, the defendants were trying to dispose of this land and dispossess the applicant. Therefore, the suit was required to be filed. The suit was contested by the respondents No.1,2 and 5 and they filed a joint written statement. Defendant No. 9 filed a separate written statement. After trial, the trial Court reached to the conclusion that the sale deed dated 3.7.1997 was not binding on the applicant and that he was having a share in the land of Kh.Nos. 319, 400 and 406. It was further declared that the defendants No.1 and 2 have no title on the suit land on the strength of sale deed dated 3.7.1997. Golman, the respondent No.1 herein, preferred an appeal against the judgment and decree of the trial Court. The said appeal was dismissed on 30.6.2008 by the First Additional District Judge, Betul. During pendency of the appeal, an application under Order 6 Rule 17 read with section 151 CPC was made by the applicant for seeking amendment in the plaint for correction of the figure of Khasra number of the land in dispute. However, the appellate Court proceeded to hear the appeal and decided the same. After passing of the decree by the appellate Court, the applicant again made an application under sections 151 and 152, CPC for correction in the decree passed by the appellate Court, but the said application was also rejected by order dated 20.7.2011. Therefore, this revision is required to be filed. It is contended that earlier a writ petition was filed before this Court, but, since such a writ petition was not maintainable, it was withdrawn with liberty to file a civil revision. 3. Upon issuance of the notice of this revision, the respondents have appeared. The parties are heard and the record is perused. 4. It is contended that earlier a writ petition was filed before this Court, but, since such a writ petition was not maintainable, it was withdrawn with liberty to file a civil revision. 3. Upon issuance of the notice of this revision, the respondents have appeared. The parties are heard and the record is perused. 4. On a perusal of the plaint contained in Annexure A1 with the revision, it is clear that the specific stand taken by the applicant before the civil Court was that the original holder of the land by name Ronya was having agriculture land in village Malajpur bearing Kh.No.319, 400 and 406. It is the specific contention raised that after the death of said Ronya, the property devolved in between the applicant and other legal heirs of Ronya. It was alleged by the applicant that a partition had taken place in between the family members on 19.6.1994 and the land of Kh.No. 319 area 0.891 hectare and land of Kh. No. 400 area 0.235 hectare fall in share of the applicant/plaintiff. It was her stand that this land was eversince in her possession. It was alleged that a part of the land was tried to be sold after getting the mutation of the said land done by a registered sale deed dated 3.7.1997. It was her stand that the land in this particular Khasra number was never devolved in between the legal heirs of Ronya except applicant. Specific relief was claimed in this manner in the plaint. If there was an error in making the description of the Khasra number, it was open for the applicant to move appropriate application before the trial Court for correction in the pleadings in plaint. There is nothing to indicate that any such attempt was made. It is also clear that during trial evidence was produced by the applicant and certain revenue records were also produced, which were taken note of by the Court below. Even when the issues were framed and decided, the specific Khasra numbers were mentioned, but no attempt was made by the applicant to get the correction done in the Khasra numbers of the land. The assessment of evidence was also done by the Court below on the basis of Khasra entries, as referred in the plaint and the statements of witnesses. The assessment of evidence was also done by the Court below on the basis of Khasra entries, as referred in the plaint and the statements of witnesses. Now, if an error was committed by the applicant for making such a claim, it cannot be said that an error of making description of the property in the decree, was committed by the Court below by passing the decree. 5. Provisions of section 152 CPC are for the amendment in judgment, decree or orders, where it is specifically provided that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either on its own motion or on the application of any of the parties. From the description of such facts, as have been given hereinabove, it is neither a clerical or arithmetical error committed by the Court below in mentioning the Khasra numbers in the judgment or decree nor could it be said that it was on account of any accidental slip or omission. In fact, it was a deliberate description of the land in dispute shown by the applicant, which was accepted by the Court below to be correct after recording of the evidence and it has been held that the applicant is the owner of such land. In view of this, the provisions of section 152 CPC would not be attracted at all for correcting the Khasra numbers of the land in dispute in the judgment or decree. 6. Now the question would be whether provisions of Order 6 Rule 17 CPC or even the provisions of section 151 CPC are attracted in such a case for correction of a mistake committed in pleadings. The Order 6 Rule 17 CPC authorizes amendment in the pleadings at any stage of the proceedings if it is considered to be just for the purpose of determining the real questions in controversy between the parties. In fact, right from the very beginning the applicant was of the view that she is the owner of the land in Kh.No. 319 and this was the specific pleading raised by her in the plaint. Not only this, during trial she produced the evidence to prove such a fact. In fact, right from the very beginning the applicant was of the view that she is the owner of the land in Kh.No. 319 and this was the specific pleading raised by her in the plaint. Not only this, during trial she produced the evidence to prove such a fact. At what point of time she came to know that there was a mistake in description of survey number of suit land and that was required to be corrected is relevant for the purpose of determining the controversy involved in the present revision. It is true that after passing of judgment and decree in the suit filed by the applicant, she did nothing except waiting for a decision in the appeal preferred against the judgment and decree by the respondent No.1. Was it not her duty to verify the correctness of the claim made by her? Was it not her responsibility to make the pleadings in effective manner and to prove the same? If this was done with deliberate knowledge, it was incorrect on the part of applicant to say that there was some mistake or slip on account of which wrong figure was mentioned in respect of Khasra number of the land in dispute. This cannot be said to be a bona fide mistake at any rate. Therefore, the provisions of Order 6 Rule 17 CPC would not be attracted in such a case. Now it has to be seen whether something, which cannot be done under the specific provisions of law made under Order 6 Rule 17 CPC, can still be done in exercise of inherent powers by the Courts under section 151 CPC. True it is that the inherent powers of the Courts are not limited, but the factual aspect is required to be taken into consideration. The fact remains that the applicant was not only claiming ownership over the land giving particular description, but was also proving the same by adducing the evidence. Therefore, it cannot be said that still the Court can exercise inherent powers to correct such mistake of the applicant. In other words, if the claim of the applicant was with respect to the land bearing Kh.No.339/1, it was her duty to prove her title on the said land and it was the right available to the defendants to rebut such evidence produced by the applicant. In other words, if the claim of the applicant was with respect to the land bearing Kh.No.339/1, it was her duty to prove her title on the said land and it was the right available to the defendants to rebut such evidence produced by the applicant. By omitting the description of particular Khasra number and by giving details of particular Khasra entries, such right of the respondents/defendants has been jeopardized as since nothing was claimed with respect to the land in Kh.No.339/1 they have not adduced any evidence in trial with respect to ownership of such land. Since there was no evidence adduced in this respect, it was neither assessed nor appreciated and no findings were recorded by the Court below in that respect. The appellate Court has also not scrutinized or reevaluated the evidence adduced by the parties in this respect. Therefore, in case such an amendment is allowed, it would be nothing but reopening of the entire proceedings, directing corrections in the Khasra number of the land in dispute in plaint, with further opportunity of adducing evidence to the parties concerned after raising the pleadings in that respect and appreciation of such evidence afresh which will mean nothing but reopening of the entire trial, which is not permissible under the law in such circumstances. 7. Learned counsel for the applicant placing reliance in the case of Peethani Suryanarayana and Anr v. Repaka Venkata Ramana Kishore and Ors – AIR 2009 SC 2141 contended that as per the law laid down by the apex Court there is no doubt that the principles of natural justice requires to be complied with, but since the identity of the suit land will not be changed, the application submitted by the applicant for correction in the description or survey number of the land in dispute should not have been rejected. The entire submission made by the learned counsel for the applicant is misconceived. In paragraph11 of the report in the case of Peethani Suryanarayana and Anr (supra), the apex Court has categorically held that the Court should allow such an application for amendment of plaint only in circumstances, when it is seen that the application is made bonafidely or the same should not cause any injustice to the other side and it should not affect the right already accrued to the defendants. By not making a claim with respect to the particular land of particular Khasra number by the applicant in plaint, the right accrued to the defendants in respect of other land, which was not claimed by the applicant as her own, would be jeopardized. Secondly, as has been described hereinabove, the application made by the applicant cannot be said to be bona fide. At any rate, reopening of the entire trial will no doubt cause injustice to the defendants. Therefore, the law laid down by the apex Court in the case of Peethani Suryanarayana and Anr (supra) would not be attracted in the case of applicant. It is further contended by the applicant that in view of the law laid down by the apex Court in the case of Niyamat Ali Molla v. Sonargon Housing Cooperative Society Ltd. and ors – AIR 2008 SC 225 the correction in the decree could be done at any stage in exercise of powers under section 152 CPC. Again it has to be held that such a contention is misconceived. Here the mistake is not in the judgment or in the decree, as has been described hereinabove. The mistake is committed in the pleadings, which cannot be corrected in exercise of powers either under section 152 or 151 CPC. The apex Court has nowhere said that when a mistake is committed in giving description of the disputed land or the suit property and a decree is drawn according to such pleadings on the basis of evidence adduced by the parties, still the power under section 151 or 152 CPC can be exercised to correct such description in the decree. In view of the aforesaid, the law laid down by the apex Court in the case of Niyamat Ali Molla (supra) is also not attracted at all in the present case. 8. Learned counsel for the respondents No. 2 and 3 has vehemently contended that in fact right available to the defendants to oppose the claim on the disputed property in the plaint was jeopardized by the applicant by giving wrong description of the property in dispute. Had the right description of the disputed property would have been given by the applicant in the plaint, the respondents would have pointed out whether the applicant/plaintiff had any right over such a piece of land or not. Had the right description of the disputed property would have been given by the applicant in the plaint, the respondents would have pointed out whether the applicant/plaintiff had any right over such a piece of land or not. It is not that only change in Khasra number or figure of the survey number of land had taken place and accordingly the same was to be incorporated in the decree. Therefore, in view of the law laid down by the apex Court in the case of State of Punjab v. Darshan Singh – [2004 (2) MPLJ 302, it would not be permissible to the Court to correct the description of the land in dispute in the decree in exercise of powers under section 152 CPC. It is further contended by the learned counsel for the respondents No. 2 and 3 that well settled law is that such correction is permissible only if there is arithmetical or clerical mistake committed in making description of the disputed property in exercise of powers under section 151 or 152 CPC. No addition or alteration in the disputed property is permissible, as has been held by this Court in the case of Devakinandan Yadav v. State Bank of Indore, Sagar and another – [2001 (1) Vidhi Bhasvar 95 = 2001(4) MPLJ 402]. 9. After consideration of the rival submission of the learned counsel for the parties and in view of the well settled law as described by this Court in the case of Devakinandan Yadav (supra) and by the apex Court in the case of State of Punjab v. Darshan Singh (supra) there is no scope to interfere in the order passed by the Court below and direct correction in the decree with respect to the description of the land or the change of survey number of the land in decree. The applicant was responsible to make a specific claim and declaration in the plaint, which she did. Not only this, she has produced the evidence in respect of the claim. It was rightly appreciated by the Court below and the same was conferred on the applicant. The applicant was responsible to make a specific claim and declaration in the plaint, which she did. Not only this, she has produced the evidence in respect of the claim. It was rightly appreciated by the Court below and the same was conferred on the applicant. If the applicant has asked for something which is granted to her and has not asked for something which has not been included in the decree, it cannot be said that there is any mistake committed by the Court below while drawing the decree and therefore such correction would be necessary. Reopening of the trial is not permissible under the law by allowing the application for amendment in plaint after a decree is passed and, therefore, the amendment in the pleadings is rightly not considered necessary. Therefore, no case is made out to interfere in the order passed by the Court below. 10. Consequently, the revision fails and is hereby dismissed. However, there shall be no order as to costs.