Calcutta High Court (Appellete Side)
Sri Samarendra Prasad Bhowmick & Anr vs Sri Shyamalendra Prasad Bhowmick & Ors on 13 January, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 3707 of 2011 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Sri Samarendra Prasad Bhowmick & anr.
Versus
Sri Shyamalendra Prasad Bhowmick & ors.
For the petitioners: Mr. Srijan Nayak,
Mr. Sourav Chakraborty,
Mr. Raja Saha.
For the opposite party no.1: Mr. Milan Bhattacharya, Ms. Daisy Basu.
For the opposite party nos.3 & 4: Mr. Shovon Bandyapadhyay.
Heard On: 04.01.2012.
Judgement On: January 13, 2012.
Prasenjit Mandal, J.: This application is at the instance of the plaintiffs and is directed against the Order No.138 dated August 9, 2011 passed by the learned Civil Judge (Senior Division), Sealdah in Title Suit No.129 of 1995 thereby rejecting the application under Section 151 and 152 of the C.P.C. and the petition under Order 6 Rule 17 of the C.P.C.
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The short fact is that the plaintiffs got a decree for partition against the defendant in the preliminary form declaring 1/7th share of each party to the suit in the suit property. Subsequently, when the parties failed to make amicable portion, the plaintiffs filed an application under Section 151 and 152 and Order 6 Rule 17 of the C.P.C. for amendment of the plaint relating to the schedule of the suit property and those applications relating to amendment were rejected by the impugned order. Being aggrieved by such orders, this application has been preferred.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on perusal of the materials on record, I find that the plaintiffs filed the said suit for partition of the suit property as described in the schedule of the plaint. The cause title, body of the plaint and the schedule of the plaint describe the suit property as Calcutta Municipal Corporation Premises No. 38/1A/H-58 (formerly known as 38/1A/47) Manicktola Main Road, Calcutta - 700054, under P.S. Manicktola, District 24 Parganas (South). The defendants contested the said suit and the said suit was decreed in the preliminary form for partition declaring the shares of the parties therein in due course. The plaintiffs filed an application for amendment of the plaint and that amendment was allowed. Accordingly, the plaintiffs filed an amended plaint but at the 3 time of describing the suit property, there was a typographical mistake and instead of describing 38/1A/H-58, it was recorded as 38/1A/H-56. As a consequence, the decree was drawn up describing the premises No.38/1A/H-56. Under the circumstances, the amendment was sought for which was rejected by the learned Trial Judge.
Mr. Srijan Nayak appearing on behalf of the petitioners has contended that amendment is most formal and it will not cause the change of the nature and character of the suit. It is a mere typographical mistake and so, such type of amendment could be done at any time by exercising inherent powers under Section 151 and 152 of the C.P.C. In support of his contention he has relied upon the decision of L. Janakirama Iyer & ors. v. P.M. Nilakanta Iyer & ors. reported in AIR 1962 SCC 633 and decision of Samarendra Nath Sinha & anr. v. Krishna Kumar Nag reported in AIR 1967 SCC 1440. According to the decision of L. Janakirama Iyer (supra) inadvertent error in decretal order of High Court - High Court has jurisdiction under Section 151 and 152 to make correction after appeals to Supreme Court had been admitted. The decision of Samarendra Nath Sinha & anr.(supra) lays down that errors arising from accidental slip can be corrected subsequently not only in decree drawn up by ministerial officer but even in judgment pronounced and signed by Court.
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Thus, Mr. Nayek has submitted in exercising powers under Section 151 and 152 of the C.P.C., the error which is nothing but a typographical mistake could be corrected at any time.
On the other hand, Mr. Milan Bhattacharya, learned Advocate for the opposite party has vehemently objected to such submission and he has referred to the following decisions:-
a) The decision of Century Textiles Industries Limited v.
Deepak Jain & anr. reported in (2009) particularly paragraph no.22 and thus, he submits that according to this decision, a bare reading of Section 152 of the C.P.C. makes it clear that the power of the Court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be reconsideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e. an act of court shall prejudice no man. Mr. Bhattacharya has submitted that it is not falt on the part of the Court and as such, the amendment as sought for cannot be corrected.
b) Mr. Bhattacharya has next referred to the decision of Union Bank of India v. Naurang & ors. reported in (2009) 16 SCC 352 particularly the paragraph no.5 and thus, he submits that when there was a typographical mistake on 5 the part of the Court and the Court when admitted such fact and corrected, the High Court was not proper to intervene. With due respect to Mr. Bhattacharya, I am of the view that this decision will not be applicable in the instant case because the circumstances are quite different.
c) Mr. Bhattacharya has next referred to the decision of Niyamat Ali Molla v. Sonargon Housing Cooperative Society Ltd. & ors. reported in (2007) 13 SCC 421 particularly the paragraph no.s 18 and 19 and thus, he submits that Section 152 of the C.P.C. empowers the Court to correct its own error in a judgment, decree or order from any accidental slip or omission. The Courts have also duty to see that records are true and present the correct state of affairs and so, whenever there is defect on the part of the Court, it could be corrected and not otherwise. With due respect to Mr. Bhattacharya, I am of the view that this decision does not practically help his clients but to the client of Mr. Nayek by laying down the ratio that a decree may be corrected by the Court both in exercise of its power under Section 152 as also under Section 151 of the C.P.C. Such a power of the Court is well-recognised and for that purpose the pleadings of the parties are to be read in their entirety. They are to be 6 construed liberally and not in a pedantic manner. The question is whether the defendants have been misled or prejudiced if the proposed amendment is allowed or not.
d) Lastly, Mr. Bhattacharya has referred to the decision of Securities and Exchange Board of India v. Arihant Cotsyn Ltd. & ors. reported in (2005) 13 SCC 498 over the exercise of revisional jurisdiction of this Court. After due consideration of the above submissions of the learned Advocates of both the sides and on perusal of the materials on record, I find that mistake did not occur on the part of the Court at all, but it was a mistake on the part of the plaintiffs. At the time of filing of the amended plaint instead of describing the premises no. 38/1A/H-58, it was wrongly recorded as 38/1A/H-56, that is, the last figure had been changed from 58 to 56. In this context, it may be numbered that the instant suit is a suit for partition and so, it is expected that each party must be interested to have his share separated from the others. While describing the suit property, the old premises no., that is, formerly known as 38/1A/47 had been described everywhere and even the preliminary decree passed, lays down the former premises number as 38/1A/47. There is no dispute about it that the premises in suit was formerly known as 38/1A/47, Manicktola Main Road and the decree was drawn up accordingly. At the time of 7 describing, the cause title, the address of the parties to the suit have been recorded as 38/1A/H-58 (formerly known as 38/1A/47) Manicktola Main Road, Calcutta - 700054. Thus, I find that both the parties to the suit knew very well which premises was the suit premises and the parties fought legal battle accordingly for a long time. But, at the time of filing the amended plaint, the last figure of the premises number had been changed from 58 to 56. This is, I hold, nothing but a clerical or typographical mistake and for such mistake the defendants have not been prejudiced at all because they were quite aware what the suit premises was and where they were residing. In such a situation, it can well be presumed that the parties proceeded with the suit as if the suit premises is of 38/1A/H-58 (formerly known as 38/1A/47).
In view of the above decisions of Samarendra Nath Sinha (supra) and the decision of Niyamat Ali Molla (supra) I am of the view that both the parties knew well what the suit premises was and that they proceeded with the suit accordingly. The defendants were not prejudiced in any way because the old premises number has been described in the suit and also in the preliminary decree drawn up by the Court. The proposed amendment is nothing but rectification of clerical errors arising from any accidental slip and such type of clerical error should be rectified otherwise, the preliminary decree may not be properly described with reference to the suit premises. It is not desirable to hold that for such 8 wrong description in one part of the decree, the decree has become infructuous and for that reason, this decree should be treated as nullity and the plaintiff is required to file another suit for partition by inserting a correct premises number. The clerical mistake appearing in the plaint or in the preliminary decree may well be corrected within the scope of section 151 and 152 of the C.P.C. As per contents of the applications the same may be taken as applications under Section 152 of the C.P.C. read with Sections 151 and 153 of the C.P.C.
It may be kept in mind that the suit has not been finally disposed of as yet and only a preliminary decree has been passed. Further recourses, such as, appointment of a partition Commissioner as prayed for are necessary before passing the final decree. So, the suit can well be treated as pending. The observations of the learned Trial Judge that the Court has become functus officio after passing of the preliminary decree, cannot be accepted. Similarly, his observations that the applications filed by the plaintiffs are misconceived, are totally wrong. Similar view is with regard to the observations that the applications filed by the plaintiffs have no merit.
The learned Trial Judge has committed miscarriage of justice in rejecting the applications for corrections and amendment as prayed for by the plaintiffs for rectification of the amended plaint.
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The impugned order cannot be sustained. It must be set aside. Accordingly, the revisional application succeeds and is, therefore, allowed.
The application under Section 151 and 152 of the C.P.C. and the application under Order 6 Rule 17 of the C.P.C. filed by the plaintiffs / petitioners herein stand allowed. Amend the plaint and the application for appointment of a Survey Passed Commissioner under Order 26 Rule 9 of the C.P.C. as prayed for. The learned Trial Judge to do the needful accordingly. Thereafter, he shall proceed with the suit in accordance with law.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)