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2014 DIGILAW 1121 (AP)

K. Rani v. Hanumaiah Goud

2014-09-05

C.V.NAGARJUNA REDDY

body2014
Judgment : This Civil Revision Petition arises out of Order, dated 31.01.2013, in IA.No.743 of 2012 in OS.No.713 of 1994, on the file of the Court of the learned Principal Junior Civil Judge, Ranga Reddy District at L.B.Nagar, Hyderabad (for short the lower Court). At the hearing, none appeared for the respondents though the name of Mr.N.Jagan Reddy is shown as their Counsel in the cause list. I have heard Mr. M.V.S.Suresh Kumar, learned Counsel for the petitioner. The petitioner filed the above-mentioned suit initially for permanent injunction restraining the respondents from interfering with her peaceful possession and enjoyment of the suit schedule property. Later, she got the pleadings and the prayer in the suit amended by adding the relief of eviction of the respondents from the plaint B schedule property and for delivery of vacant physical possession thereof besides seeking mandatory injunction for demolition of the existing illegal structure towards southern side of the suit schedule property. The suit was decreed as prayed for on 18.01.2001. The lower Court has stipulated one month time from the date of decree to the respondents to vacate the plaint B schedule property. The petitioner filed EP.No.75 of 2006 for execution of the decree qua plaint B schedule property. On 14-11-2011, the lower Court has issued the warrant for delivery of possession of the plaint B schedule property to the petitioner/plaintiff. However, the bailiff has returned the warrant on the ground that the boundaries mentioned in the schedule annexed to the decree do not tally with those found on physical inspection. Thereafter, the petitioner has filed IA.No.743 of 2012 under Order VI Rule 17 of the Code of Civil Procedure Code, 1908 (CPC) and Section 152 CPC for amendment of the western boundary in the plaint B schedule and also for consequential amendment of decree, dated 18-01-2001. Before the lower Court, the respondents were not represented by Counsel and no counter-affidavit was filed on their behalf opposing the said application. However, by the above-mentioned order, the lower Court has dismissed the application. A perusal of the impugned order would show that the lower Court has observed in Para 3 that no notice was given to the parties. However, a contradictory finding was rendered by it in paragraph 4 to the effect that though an Advocate has received notice on behalf of the defendants, no counter-affidavit has been filed. A perusal of the impugned order would show that the lower Court has observed in Para 3 that no notice was given to the parties. However, a contradictory finding was rendered by it in paragraph 4 to the effect that though an Advocate has received notice on behalf of the defendants, no counter-affidavit has been filed. The fact, however, remains that even in this Civil Revision Petition though the respondents entered appearance though a Counsel, neither a counter-affidavit is filed on their behalf nor their Counsel is present to oppose this petition. The sum and substance of the case of the petitioner, as reflected from the plaint, is that she has purchased the plot bearing No.43 admeasuring 515 square yards situated in Survey No.16 of Shababnagar Khurd Village, Hayathnagar Mandal, Ranga Reddy District from Sri Pochagani Mallaiah under registered sale deed vide document No.3934/1977. In Schedule A of the plaint, the entire property admeasuring 515 square yards has been included and the western boundary is described as plot No.42. However, in Schedule B of the plaint, with respect to which recovery of possession has been sought, an extent of 103.44 square yards forming part of plot No.43, which is subject matter of Schedule A, is included and its western boundary is described as road. Mr. M.V.Suresh Kumar, learned Counsel for the petitioner, submitted that, having regard to the relief of recovery of possession claimed by his client, a part of schedule A property, which is to the extent of 103.44 square yards, is separately shown under Schedule B and that the same being part and parcel of Schedule A property, the boundaries of both the properties are same. In support of his submission, the learned Counsel has placed before this Court a copy of sale deed bearing No.3934 of 1977, referred to in Para 1 of the plaint, to show that the schedule annexed thereto also describes plot No.42 as the western boundary of plot No.43. From the above documents, this Court is thoroughly convinced that a typographical mistake has crept-in in describing the western boundary of schedule B property as road instead of plot No.42. Unfortunately, the lower Court has failed to apply its mind to these facts and made a perfunctory approach in dismissing the application. From the above documents, this Court is thoroughly convinced that a typographical mistake has crept-in in describing the western boundary of schedule B property as road instead of plot No.42. Unfortunately, the lower Court has failed to apply its mind to these facts and made a perfunctory approach in dismissing the application. The lower Court has not assigned any plausible reasons except observing that the petitioner has not explained reasons for filing the petition after lapse of a decade from the date of decree. The lower Court has failed to notice that the occasion for the petitioner to file the application for amendment had arisen consequent to the return of the warrant by the bailiff towards the end of 2011 on the ground that the boundaries mentioned in the decree do not tally with those found on physical inspection of the suit schedule property. It is settled legal position that an application for amendment of plaint, even after passing of a decree, is maintainable under Section 152 CPC. In Kalkonda Pandu Rangaiah vs. Kalkonda Krishnaiah (AndhWR-1973-2-253), Venkata Rama Sastry, J, has made a luminous exposition on this legal position with reference to case law governing the subject on the scope of Section 152 CPC and held: As a result of the above discussion my conclusions on the three points formulated above are as follows:-- Where clerical or arithmetical mistakes occur in copying the plaint schedules from the documents anterior to the suit the proceedings in the suit can always be corrected under Section 152, C.P.C. In such cases even the documents on the basis of which the suit was filed may be amended either in a suit under Section 31 of the Specific Relief Act or in a proper case even by an application under Section 152 C.P.C. provided it is a case of mis-description and not one of disputed identity. In such cases, if Section 152 is invoked it would obviate a suit which would ultimately bring the same result. In all cases, where clerical or arithmetical errors creep-in in the plaint and as a consequence in the decrees as well, they can be rectified at any time even after a final decree. A case of such an amendment petition under Section 152 C.P.C. filed in a pending suit even after a preliminary decree is passed therein is an a fortiori case. A case of such an amendment petition under Section 152 C.P.C. filed in a pending suit even after a preliminary decree is passed therein is an a fortiori case. From the above judgment, I am satisfied that the petitioners case squarely falls under the provisions of Section 152 CPC. As a bona fide error has crept in the description of the schedule in the plaint, the same can be corrected by the Court in exercise of its power under Section 152 CPC. For the above-mentioned reasons, the order under revision is set aside and IA.No.743 of 2012, on the file of the Court of the learned Principal Junior Civil Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, is allowed. The Civil Revision Petition is, accordingly, allowed.