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2015 DIGILAW 2690 (ALL)

Chhotey Lal v. Laxman

2015-09-01

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. By means of this petition under Article 227 of the Constitution, the petitioner is challenging the order dated 28.1.2015 passed by the trial court in Original Suit No.189 of 2002, whereby the application file by the plaintiff-respondents seeking correction of typographical error in the plaint, has been allowed, as well as the order dated 29.5.2015 passed by the District Judge, Kushi Nagar dismissing the revision. 2. It seems that after the evidence of the parties was over and the matter was being posted for arguments, an application was filed by the plaintiff-respondents paper no. 39-G2 purporting to be under Order 6 Rule 17 read with section 151 CPC. In the application, it was stated that on account of typing error, in paragraph 3 of the plaint, new number of the suit property has been mentioned as 1079 instead of 1077, although, the correct number has been duly mentioned in paragraph 9 of the plaint. It was further pointed out in the said application that the same mistake had occurred in paragraph 4 and 10 of the affidavit filed in support of the plaint. The application was allowed by the trial court on payment of cost of Rs.400/-, holding that the mistake is purely a clerical error. While taking such view, the trial court has specifically referred to paragraph 9-Ga of the plaint, in which the description of the suit property has been duly given as new plot no. 1077. The revisional court while dismissing the revision has concurred with the view taken by the trial court and further held that the amendment which has been allowed neither changes the nature of the case set up in the plaint nor causes any prejudice to the petitioner. 3. The only submission made by learned counsel for the petitioner is that there was absolutely no explanation on the part of the plaintiff respondents, in moving the application after the evidence of parties was closed. It is submitted that no amendment in the pleadings can be allowed after the trial has commenced, unless reasons are disclosed why the plea could not be raised before commencement of the trial. Concededly, the correction which has been sought is with regard to an inadvertent typographical error. It is submitted that no amendment in the pleadings can be allowed after the trial has commenced, unless reasons are disclosed why the plea could not be raised before commencement of the trial. Concededly, the correction which has been sought is with regard to an inadvertent typographical error. The trial court taking notice of paragraph 9-Ga of the plaint has held that the plea is not a new plea, but is already there in the pleadings. 4. It is further to be noted that the plaint was filed in the month of April, 2002 and it relates to a date prior to the commencement of the Code of Civil Procedure (Amendment) Act, 2002, by which Order 6 Rule 17 was amended. The amended provision now require that no application for amendment shall be allowed after the trial has commenced, unless the court comes to a conclusion that despite due diligence, the parties could not have raised the matter before commencement of the trial. However, amended provision of Order 6, Rule 17 is not applicable to the pleadings filed before the commencement of the amended provision w.e.f. 1/7/2002 as provided by Section 16 of the Code of Civil Procedure (Amendment) Act, 2002. Thus, it was not necessary for the plaintiffs to have brought their case within the purview of the amended provision. The petition lacks merit and is dismissed.