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2024 DIGILAW 667 (JHR)

Khageshwar Rana v. Sundri Devi

2024-07-03

SUBHASH CHAND

body2024
ORDER : Subhash Chand, J. 1. Learned counsel for the petitioners and learned counsel for the respondent No.1 are present. 2. No one appears on behalf of the respondent Nos.2 to 13 despite service of notice to them. 3. Learned counsel for the petitioners has submitted that the plaintiff has instituted the suit for partition bearing Partition Suit No.21 of 2005 and the suit was decreed in favour of the plaintiff on 30.01.2009 and the preliminary decree was directed to be drawn in regard to the plots of land as shown in the plaint. The decree was also prepared on the basis of the judgment and, during the final decree proceeding, the petitioner-plaintiff came to know that certain plots have wrongly been mentioned in the judgment and decree itself and one plot has wrongly been mentioned twice while the correct plot number and area is mentioned in the plaint, as such, the mistake was typographical, therefore, the petitioners have moved the amendment application before the Court of learned Civil Judge, Sr. Division-VI, Hazaribag but the amendment application was rejected by the learned Trial Court vide order dated 29.01.2015, aggrieved from the order dated 29.01.2015, this writ petition has been filed on behalf of the petitioners. 4. Learned counsel for the petitioner has further submitted that at this stage he is not pressing the amendment application in regard to the proposed amendment -A, he is only pressing to the extent of proposed amendment-B shown in the amendment application. 5. It has been further submitted that the proceeding for final decree on the basis of preliminary decree was initiated on behalf of the plaintiff-petitioner in the Court of learned Sr. Civil Judge-IV, Hazaribag and the application for amendment was moved, which is Annexure-4 of this writ petition. 6. Per contra, the learned counsel for the respondent No.1 opposed the contentions made by the learned counsel for the petitioners and contended that from the proposed amendment the very nature of the suit is changed. The amendment was sought belated at the stage of proceeding for final decree and, for the same, permission cannot be granted, accordingly, the impugned order passed by the learned Trial Court bears no illegality and needs no interference. 7. The amendment was sought belated at the stage of proceeding for final decree and, for the same, permission cannot be granted, accordingly, the impugned order passed by the learned Trial Court bears no illegality and needs no interference. 7. From the very perusal of the copy of plaint, which is Annexure-2 of this writ petition, it is found that the plaintiff has filed the suit for partition against the defendants, who are respondents herein claiming his legal share in -2 regard to the land shown in Schedule-A of the plaint and also sought the separate possession of his share. 8. The suit of plaintiff was decreed on 30.01.2009 and the share of the plaintiff was declared 3/4th share out of the entire suit land. The copy of judgment is Annexure-2 and copy of decree is Annexure-3 of this writ petition. 9. From the very perusal of the amendment application, it is found that in proposed amendment-A, the plaintiff has sought the amendment for specific share and in Part-B they have sought the amendment in regard to typographical mistake in the judgment and decree, which was contrary to the pleadings of the plaint. 10. The proposed amendment-B in the amendment application is that in the details of the property, which is shown in Schedule-B of the plaint at page No.26 of the plaint which is Annexure-1 of this writ petition, Plot No.321 is mentioned while in the decree Plot No.121 is mentioned and the area is shown same as in Plot No.321. The plot No.1215, which has been repeated twice, it should be only Plot No.1215. Likewise, Khata No.2630 has wrongly been mentioned in place of Khata No.2621 as shown in the plaint. Further, the area of plot No.2772 is shown in the decree as 0.14 while the area in the plaint is shown 0.12. Further, the plot No.374/4852 has been mentioned while in the plaint it is mentioned as Plot No.374/4857. 11. The proposed amendment as shown in property-B is the rectification in regard to the typographical mistake as found in view of the plaint. Except the plot No.1215 the permission for the same cannot be given since in the plaint itself this plot number has shown twice. In view of Section 152 of the Code of Civil Procedure, the clerical and arithmetical mistake can be rectified the judgment and decree as well. Except the plot No.1215 the permission for the same cannot be given since in the plaint itself this plot number has shown twice. In view of Section 152 of the Code of Civil Procedure, the clerical and arithmetical mistake can be rectified the judgment and decree as well. The learned Trial Court has committed illegality by refusing the application for amendment of the petitioner-plaintiff up to the extent of correction of the plot number and are as well, which sought to be corrected in view of the details of the property as shown in the plaint. As such, the impugned order passed by the learned Trial Court needs interference and this writ petition deserves to be allowed. 12. Accordingly, the impugned order passed by the learned Trial Court is partly allowed. The amendment application of the plaintiff is allowed for amendment-B as shown in the amendment application. Except the Plot -3 No.1215, the rest of the order in regard to the rejection of the amendment application for the proposed amendment-A is affirmed. 13. The learned Trial Court is directed to permit the petitioners to insert in proposed amendment-B in the judgment and decree as well within two weeks from the date of production of a copy of this order by either party.