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2017 DIGILAW 688 (ORI)

Manoj Samal v. Makunda Samal

2017-07-10

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 15.09.2014 passed by the learned Civil Judge (Sr. Divn.), Bhadrak in I.A. No.119 of 2013 arising out of T.S. No.111 of 2003-I. By the said order, learned trial court rejected the application of the plaintiffs seeking leave of the court to include two plots in the plaint and to amend the decree accordingly. 2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the petitioners as plaintiffs instituted the suit for partition impleading the opposite parties as defendants. Pursuant to issuance of summons, the defendant nos.2 and 5 entered appearance and filed their written statement. Other defendants were set exparte. While the matter stood thus, the plaintiffs filed an application for amendment of plaint on 22.03.2006 to include two plots in the suit schedule. The same was allowed. But then the plaintiffs did not carry out the amendment. Both the parties led evidence. The suit was decreed preliminarily on 19.10.2011. Thereafter, the plaintiffs filed an application under Sec.151 C.P.C. for incorporation of plots in the plaint, judgment and decree. It was stated that due to mistake, the amendment could not carried out. The petitioners were not aware of the mistake and came to know about the same at the time of filing of the petition for final decree. Earlier petition filed by them was rejected on the ground that there was no averment as to whether the appeal was pending or not. Since no appeal is pending, they sought leave of the court. Learned trial court came to hold that the petition for correction of decree is not maintainable and dismissed the same. 3. Heard Mr. S.S.K. Nayak, learned counsel for the petitioners. None appeared for the opposite parties. 4. Mr. Nayak, learned counsel for the petitioners submitted that the application for amendment of plaint to incorporate two plots had been allowed by the learned trial court, but the same could not be carried out inadvertently. The court has ample power to include the plots, which have been left out, in the final decree. 5. 4. Mr. Nayak, learned counsel for the petitioners submitted that the application for amendment of plaint to incorporate two plots had been allowed by the learned trial court, but the same could not be carried out inadvertently. The court has ample power to include the plots, which have been left out, in the final decree. 5. The short question that arises for consideration is as to whether the decree can be corrected by the court in exercise of its power under Sec.151/152 C.P.C., when the mistake has been committed by the parties. 6. In Jayanta Kumar Rath (since dead) through L.Rs vs. Pravas Kumar Rath (since dead) through L.Rs, 2016(I) ILR-CUT-969, this Court held thus: “11. The case of the petitioners may be examined on the anvil of the decisions cited supra. On a bare perusal of Section 152 CPC, it is evident 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. If clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from the accidental slip or omission has been committed by the court, then the court may correct the same on its own motion or on the application of any of the parties. It does not comprehend the correction of any error on the part of any of the litigating parties. The error must be on the part of the court. In an application under Section 152 CPC, the Court cannot ascertain the intention of the parties making the compromise and filing the application. The said section cannot be invoked for the purpose of explaining as to what was the intention of the parties in arriving at the compromise. Since the parties have filed a compromise petition admitting the contents to be correct and thereafter the court has recorded the same, Section 152 CPC cannot be pressed into service to correct the compromise petition and decree.” 7. The matter may be examined from another angle. Since the parties have filed a compromise petition admitting the contents to be correct and thereafter the court has recorded the same, Section 152 CPC cannot be pressed into service to correct the compromise petition and decree.” 7. The matter may be examined from another angle. Order 6 Rule 18 C.P.C. provides that if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for the purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court. 8. In Dilbagh Rai Jerry vs. Union of India and others, AIR 1974 SC 130 , the appellant filed an application under the Payment of Wages Act claiming certain amounts towards wages. During pendency of the petition, he filed an application for amendment to incorporate running allowance instead of travelling allowance. The petition was allowed. But then the amendment was not carried out for which the running allowance was not allowed to him. The contention was made before the apex Court that the provisions contained under Order 6 Rule 18 C.P.C. could not apply to proceedings under the Payment of Wages Act. Thus the appellant cannot be deprived of carrying out the amendment as the leave to amend had been granted. The apex Court held thus: “The contention is untenable. While it is true that rules 17 and 18 of Order 6 of the Code do not, in terms, apply to amendment of an application under section 15(2), the Authority is competent to devise, consistently with the provisions of the Act and the Rules made thereunder, its own procedure based on general principles of justice, equity and good conscience. One of such principles is that delay defeats equity. The Authority found that the applicant was guilty of gross negligence. He took no steps whatever to carry out the amendment for several months after the order permitting the amendment, and thereafter, when the case was at the final stage, he suddenly woke up, as it were, from slumber, and sought to amend his application. The Authority found that the applicant was guilty of gross negligence. He took no steps whatever to carry out the amendment for several months after the order permitting the amendment, and thereafter, when the case was at the final stage, he suddenly woke up, as it were, from slumber, and sought to amend his application. In the circumstances, the Authority rightly refused to put a premium on this delay and laxity on the part of the appellant………” 9. The amendment has a far reaching consequence so far as the defendants are concerned. Had the application for amendment been carried out, the defendants would have an opportunity for filing additional written statement. Additional issues would have been framed for adjudication depending plea taken in the defence. Earlier application for amendment of decree had been rejected. The subsequent application seeking the self-same relief is an abuse of process of the court. The ratio in the cases of Jayanta Kumar Rath (since dead) through L.Rs (supra) and Dilbagh Rai Jerry (supra) apply full force to the facts of the case. The petition is dismissed. No costs.