Calcutta High Court (Appellete Side)
Tapas Guha & Ors vs Angurbala Das on 17 April, 2009
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
C. O. No. 2837 of 2007
Tapas Guha & Ors.
-Vs-
Angurbala Das
For the Petitioners : Mr. Ranjan Bachawat,
Mr. Sakya Sen,
Mr. Subhasis Sengupta,
Mr. Tapas Kr. Mondal,
Mr. Amitava Bhattacharya.
For the Opposite : Mr. S.P. Roy Chowdhury,
Parties. Mr. J. L. Dey,
Mr. Guru Saday De.
Judgment On : 17-04-2009.
The plaintiff/opposite party (decree holder) filed a suit for eviction against
the defendants/petitioners (judgment debtor) from the suit property on various
grounds under the West Bengal premises Tenancy Act, 1956 including the
ground of reasonable requirement of the plaintiff/opposite party. In the schedule
of the plaint the suit property was described as follows :-
"All that two rooms and privy at the first floor and three rooms at the second floor and one kitchen and
bathroom at the ground floor at premises no.27D, Harikati Bagan Lane now known as Dr. Dhiren Sen Sarani,
Kolkata - 700006, P.S. Burtolla.
On the North : 25A, Harikati Bagan lane, Kolkata - 700006.
On the South : Common passage.
On the East : 27D, Harikati Bagan Lane, Kolkata - 700006.
On the West : 28D, Harikti Bagan Lane, Kolkata - 700006."
The defendants contested the said suit by filing written statement denying the allegations made out by the
plaintiff in his plaint. Though the defendants did not challenge the plaintiff's title in the suit property and/or the
existence of relationship of the landlord and tenant between the parties in respect of the suit property but, still then, they
alleged that the suit property has not been correctly defined in the schedule of the plaint. Though they claimed that the
suit property has not been correctly defined in the schedule of the plaint but, still then, neither they specified the error
in such description nor they disclosed the correct description of their tenancy in their written statement.
Since no dispute with regard to identity of suit property was raised specifically in details, no issue was framed
on the said dispute in the suit.
Since the said suit was filed on the ground of reasonable requirement of the plaintiff, an inspection was held at
the suit premises for ascertaining the respective accommodation available to the parties in the premises where both the
plaintiff and the defendants reside in their respective accommodation. In fact, the suit premises was identified to the
learned Advocate Commissioner by both the parties at the time of holding such local inspection and both the parties
duly represented themselves before the learned Advocate Commissioner at the time of holding such local inspection.
The learned Advocate Commissioner held local inspection at the said premises and submitted his report with regard to
the accommodation available to the respective parties in the said premises.
The suit was ultimately decreed on contest. The said decree was affirmed in appeal by the learned First
Appellate Court which again was subsequently affirmed by the Hon'ble Court in Second Appeal.
Since the defendants/petitioners (judgment debtor) failed to deliver the vacant and khas possession of the suit
premises to the plaintiff/opposite party (decree holder) in terms of the said eviction decree, the plaintiff/opposite party
(decree holder) put the said decree into execution for recovery of khas possession from the defendants/petitioners
(judgment debtor).
The writ of possession which was issued in the said execution proceeding could not be executed by the Bailiff
as he found that the description of the suit property as mentioned in the decree did not tally with the boundaries of the
suit property at the site.
The defendants/petitioners (judgment debtor) filed an application under Section 47 of the Civil Procedure
Code challenging the executability of the said decree by alleging that the decreetal property as mentioned in the decree
is not identifiable with the property where execution was sought to be made, as the boundaries of the suit property
given in the plaint and/or in the decree does not tally with the boundaries of the property where execution was sought to
be made. The petitioners alleged therein that the eastern and western boundary of the suit property have not been
correctly described in the schedule of the plaint. The defendants/petitioners for the first time disclosed in their said
application that premises no.27C, Harikati Bagan Lane, Kolkata - 700006 situates on the eastern side of the suit
property. They have further disclosed in their said application that premises no.28/1, Harikati Bagan Lane, Kolkata -
700006 situates on the western side of the suit premises.
Even in the said application, the petitioners did not challenge either the correctness of the extent of their
tenancy in premises no.27D, Harikati Bagan Lane, Kolkata - 700006 or the correctness of the southern and northern
boundary of the said premises no.27D, Harikati Bagan Lane, Kolkata - 700006.
For establishing their allegation regarding wrong description of the eastern and western boundary of the said
premises, the petitioners herein applied for an investigation commission at the suit premises in the said execution
proceeding.
Pending consideration of those two applications of the defendants/petitioners (judgment debtor) by the learned
Executing Court, two applications were filed by the plaintiff/opposite party (decree holder) in the suit. In one of such
applications which was filed under Order 6 Rule 17 of the Civil Procedure code, the plaintiff/opposite party sought for
leave to amend and/or correct the eastern and western boundary of the suit property to identify the said property
properly. In the other application which was filed under Sections 151 and 152 of the Civil Procedure Code, the
plaintiff/opposite party (decree holder) prayed for correction of the decree in an identical manner as mentioned above.
The opposite party stated therein that the eastern part of the suit premises is butted and bounded by premises no.27,
Harikati Bagan Lane, Kolkata - 700006 and the western part of the suit property is butted and bounded by premises
no.28, Harikati Bagan Lane, Kolkata - 700006.
The plaintiff/opposite party stated in those applications that since an erroneous description of the eastern and
western boundary of the said premises was mentioned in the sale deed through which she purchased the said premises
from her vendor, the eastern and western boundary of the suit premises could not be given in the plaint correctly. It
was further stated therein that the said erroneous description of the eastern and western boundary of the said premises
was rectified by a deed of rectification executed by the vendor of the opposite party on 16th September, 2006. The
opposite party, thus, admitted that the suit property was not correctly defined in the schedule of the plaint. However,
she claimed that misdescription was crept in, due to bona fide mistake on her hart, and such mistake is required to be
corrected for avoiding future complication. Thus, the plaintiff not only sought for amendment for the schedule of the
plaint but also she applied for correction of the decree passed in the suit on 10.7.2002.
The defendants/petitioners (judgment debtor) contested those two applications filed by the plaintiff in the suit,
by contending inter alia that the plaintiff's prayer for amendment of the plaint and/or for correction of decree cannot be
allowed as there was no bona fide mistake on the part of the plaintiff in giving proper description of the suit property in
the schedule of the plaint. It was further stated therein that the amendment of the schedule of the plaint cannot be
allowed by the learned Trial Court after passing of the decree as the Trial Court became functus officio after the
passing of the decree in the said suit. It was further stated therein that only the clerical or arithmetical mistake in the
judgment and decree or errors arising therein from accidental slip or omission may be corrected by the Court under
Section 152 of the Civil Procedure Code. But since the correction of the decree which has been sought for does not
attract any of the said circumstances, the plaintiff's prayer for correction of the decree cannot be allowed. Thus, the
defendants/petitioners prayed for rejection of both the aforesaid applications filed by the plaintiff.
Both the aforesaid applications of the plaintiff were allowed by the learned Trial Judge by the impugned order.
The learned Trial Judge held that the misdescription of the suit property was crept in the schedule of the plaint due to
bona fide mistake on the part of the plaintiff. The learned Trial Judge further held that there was no laches on the part
of the plaintiff in applying for amendment of the plaint and/or for correction of the decree as the plaintiff/opposite party
immediately on discovery of such misdescription of the suit property given in the schedule of the plaint applied for
amendment of the schedule of the plaint and/or for the correction of the decree. The learned Trial Judge further held
that the plaintiff's prayer for amendment of the plaint and/or for correction of decree can neither be refused nor the
consideration of these applications be kept in abeyance till the disposal of the petitioners' application under Section 47
of the Civil Procedure Code and/or their application for local investigation, as claimed by the petitioners herein. The
learned Trial Judge further held that the petitioners' those application will be considered by the Executing Court in the
executing proceeding and pendency of the execution proceeding cannot be a bar in considering the applications filed by
the plaintiff in the suit.
The propriety of the said order is under challenge in this revisional application under Article 227 of the
Constitution of India, at the instance of the defendants/petitioners (judgment debtor) herein.
Mr. Bachawat, learned Counsel appearing on behalf of the petitioners criticized the impugned order passed by
the learned Trial Court by submitting that since the wrong description of the suit property was not given due to bona
fide mistake on the part of the plaintiff/opposite party herein, his prayer for amendment of the schedule of the plaint
ought not to have been allowed by the learned Trial Court. He pointed out from the written statement that his clients
disputed the correctness of the description of the suit property and extent of his tenancy as mentioned by the plaintiff in
para 3 of the plaint. He also pointed out that the correctness of the description of the suit property as mentioned in the
schedule of the plaint was also challenged by his clients in their written statement. But, still then, no effective step was
taken by the plaintiff for rectification of such erroneous description of the suit premises by way of amendment of plaint
during the pendency of the suit. He, thus, submitted that if the said conduct of the plaintiff is considered, then it cannot
be concluded that such error in describing the suit property was crept in, due to bona fide mistake of the plaintiff.
Mr. Bachawat further contended that since the learned Trial Judge became functus officio after the disposal of
the suit, the learned Trial Judge ought not to have allowed the plaintiff's prayer for amendment of the plaint.
Mr. Batchawat further contended that since the decree of the learned Trial Court was affirmed by the learned
First Appellate Court and the same was further affirmed by this Hon'ble High Court in second appeal, the learned Trial
Judge ought not to have allowed the plaintiff's claim for amendment of plaint. According to him, it is only the last
Court of Appeal which ultimately affirmed the decree of eviction passed by the learned Trial Judge, has the only
jurisdiction to rectify the decree, because of merger of the decree of the Trial Court with the ultimate decree passed by
this Court in appeal. In support of such submission he relied upon a decision of the Hon'ble Patna High Court in the
case of Mt. Kulwanti Devi & Ors. -Vs- A. Singh & Ors. reported in AIR 1959 Patna 591 wherein it was held that once
the judgment and decree of the Trial Court is affirmed in appeal by the Appeal Court, the Trial Court ceased to have
any jurisdiction to rectify its decree even if, such correction is needed for any of the reasons as contemplated in Section
152 of the Civil Procedure Code.
Mr. Batchawat further submitted that the learned Trial Judge acted illegally and with material irregularity in
allowing the plaintiff's for amendment of the plaint and/or for correction of the decree as the error which was sought to
be corrected was neither caused due to clerical or arithmetical mistake in judgment and/or decree nor such error was
resulted therein from any accidental slip or omission in the decree. Mr. Batchawat very firmly submitted that unless
any of the conditions as mentioned in Section 152 of the Code of Civil Procedure requiring correction of decree is
satisfied, no Court can amend the judgment and/or decree in exercise of its power under Section 152 of the said Code.
To support his aforesaid submission he relied upon the following decisions of the Hon'ble Supreme Court:-
1. In the case of Niyamat Ali Molla -Vs- Sonargaon Housing Co-operative Society Ltd. & Ors. reported
in (2007)13 SCC page 421.
2. In the case of Jayalakshmi Coelho -Vs- Oswald Joseph Coelho reported in (2001)4 SCC page 181.
3. In the case of Dwaraka Das -Vs- State of Madhya Pradesh & Anr. reported in (1999)3 SCC pge 500.
4. In the case of Ramnik Villabhdas Madhvani & Ors. -Vs- Taraben Pravinlal Madhvani reported in
(2004)1 SCC 497.
Mr. Batchawat further submitted that when the petitioners' application under Section 47 of the Civil Procedure
Code and the application for local investigation are still awaiting consideration before the learned Executing Court, the
learned Trial Judge ought not to have allowed those applications filed by the plaintiff particularly when the petitioners
claimed in their objection that even the misdescription of suit property cannot be rectified, by substituting the proposed
schedule in the place of the schedule of the plaint.
According to Mr. Batchawat, when the identity of the suit property is yet to be ascertained by local
investigation, the learned Trial Judge ought not to have allowed the plaintiff's prayer for amendment of the schedule of
the plaint and for similar reason, the plaintiff's application of the correction of decree should have been rejected by the
learned Trial Judge.
Thus, Mr. Batchawat invited this Court to interfere in the impugned order in the facts of the instant case.
Mr. Roy Chowdhury, learned Senior Counsel appearing on behalf of the plaintiff/opposite party refuted such
submission of Mr. Batchawat by submitting that this is a case where the defendants/petitioners were holding a single
tenancy under the plaintiff/opposite party herein. Mr. Roy Chowdhury pointed out from the pleadings made out by the
defendants in their written statement that the dispute with regard to the misdescription of the suit property mentioned in
the schedule and/or extent of their tenancy in the said premises was raised by the defendants in their written statement
very evasively. Mr. Roy Chowdhury further pointed out that the petitioners never mentioned as to what would be the
correct description of the suit property in the written statement. Mr. Roy Chowdhury further pointed out that the
defendants never challenged the plaintiff's title in the suit property and/or the existence of relationship of the landlord
and tenant between the parties in the written statement. Mr. Roy Chowdhury further pointed out that even the suit
property and/or the defendants' tenancy was identified by both the plaintiff and the defendants to the learned Advocate
Commissioner at the time of holding local inspection in the suit premises. Mr. Roy Chowdhury, further contended that
this is not a case where one property is sought to be substituted in the place of another property. According to him, it is
not a case where a mistaken identity of the property is sought to be corrected by amendment, but it is a case where
misdescription of the suit property was sought to be corrected by amendment. Mr. Roy Chowdhury contended that
mistaken identity of the suit property mentioned in the decree cannot be rectified by the Court under Section 152 of the
Civil Procedure Code as rectification of such error requires further adjudication for establishing the identity of the suit
property and such identification is not possible by the Court after passing of the decree. According to Mr. Roy
Chowdhury misdescription of the property in the decree can be rectified by the Court under Section 152 of the Civil
Procedure Code as further adjudication is not necessary for such rectification.
Mr. Roy Chowdhury, thus, submitted that since the defendants/petitioners are aware of the identity of the suit
property, they cannot suffer any loss and injury, if such rectification is made for correcting the misdescription of the
suit property in the decree. In support of his said submission Mr. Roy Chowdhury relied upon a Division Bench
decision of this Hon'ble Court wherein it was held that misdescription of the schedule of the suit property can be
corrected by the learned Trial Court under Section 152 of the Civil Procedure Code.
In fact, this Court finds that the refusal to correct the decree by the learned Trial Judge for rectifying the
misdescription of the suit property in the decree was set aside by the Division Bench of this Hon'ble Court in the said
case and the said decree was allowed to be corrected even though the decree of the learned Trial Court was affirmed in
appeal.
By relying upon another decision of the Hon'ble Supreme Court in the case of Tiko (Smt.) & Ors. -Vs-
Lachman reported in 1995 Supp.(4)SCC page 582, Mr. Roy Chowdhury submitted that even the Hon'ble Supreme
Court in the said decision did not accept the view of the High Court to the effect that the Trial Court has no jurisdiction
to rectify the decree after the said decree is affirmed in appeal.
Mr. Roy Chowdhury also relied upon the decision of the Hon'ble Supreme Court in the case of Niyamat Ali
Molla -Vs- Sonargaon Housing Co-operative Society Ltd. (supra) which was cited by Mr. Bachawat, to demonstrate
that the Court's power to amend the decree under Sections 151 and 152 of the Code of Civil Procedure is not restricted
in a case where further adjudication is not necessary for establishing the identity of the suit property and thus the power
of the Court to rectify its own decree was recognised by the Hon'ble Supreme Court in the said decision.
Thus, Mr. Roy Chowdhury supported the impugned order and prayed for the rejection of this revisional
application.
Let me now consider the submission of learned Counsel of the parties in the aforesaid background.
Court's power to amend the schedule of the suit property in the plaint, even after disposal of the suit and/or to
make the consequential amendment in the decree, is well recognized by the Hon'ble Supreme Court as well as by this
Hon'ble Court in the decision cited by the parties. Even such power of the Court can be traced out from Sections 151
and 152 of the Code of Civil Procedure.
Now the question is as to under what circumstances such power is to be
exercised by the Court. In this regard, I may refer to the decisions of the Hon'ble
Supreme Court in the case of Niyamat Ali Molla -Vs- Sonargaon Housing Co-
operative Ltd. wherein the Hon'ble Supreme Court after dealing with the relevant
provision of Sections 151 and 152 of the Civil Procedure Code and also by taking
note of the previous judicial precedents in this regard, held that such correction
can be made when the defendants could not be said to have been misled by such
correction and in fact, by such amendment one property is not substituted by the
other. The relevant paragraphs of the said decision are set out hereunder:-
Para 25: "It is not a case where the defendants could be said to have been misled. It is now well settled
that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and
not in a pedantic manner. It is also not a case where by reason for an amendment, one property is
being substituted by the other. If the Court has the requisite power to make an amendment of the
decree, the same would not mean that it had gone beyond the decree or passing any decree. The
statements contained in the body of the plaint have sufficiently described the suit lands. Only because
some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to
deprive the respondents from the fruit of the decree. If the appellant herein did not file any written
statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule were missing, the same by itself would not be a ground to interfere with the impugned order."
Other decisions which were cited by Mr. Batchawat also held uniformly that the omission sought to be corrected which goes to the merit of the case, is beyond the scope of Section 152 for which the proper remedy of the aggrieved party is to file an appeal or review application. It was, however, held therein that Section 152 of the Code of Civil Procedure cannot be pressed into service to correct an omission which is intentional, however, erroneous that may be.
In my view here is the case where there was no intentional omission on the part of the plaintiff in describing the suit property incorrectly. The wrong description of the suit property was given in the plaint as wrong description was given in the schedule of the sale deed through which the plaintiff has acquired title in the suit property. In fact, the said mistake was discovered by the plaintiff long after the passing of decree, in 2006 and immediately thereafter the plaintiff applied for the amendment of the schedule of the plaint and correction of the decree. This shows that there was no intentional omission on the part of the plaintiff in describing the suit property in the plaint incorrectly.
Accordingly, this Court holds that those line of decisions which were cited by Mr. Batchawat, have no application in the facts of the instant case.
In fact, the Hon'ble Supreme Court in the case of Tiko (Smt.) & Ors. -Vs- Lachman (supra) remitted the plaintiff's application for amendment of plaint and consequential amendment of the decree to the learned Trial Judge for consideration of the said application on merit by not accepting the submission of the learned Advocate for the respondent therein that such correction cannot be allowed by the learned Trial Court after the decree passed by the Trial Court is affirmed in appeal. As such, this Court is unable to hold that the Trial Court cannot correct the error in decree to rectify the schedule of the suit property, after the said decree is affirmed in appeal. Had it been a case that the decree was reversed in appeal on the ground of erroneous description of the suit property, the Trial Court certainly could not have corrected such decree inasmuch as such correction may have ultimately upset the decree of the Appeal Court.
Before concluding, this Court wants to put on record that a premises in any Municipal town and/or under a Corporation is normally identified by the holding number allotted to the premises and not by its boundary. Here is the case where there is no wrong description of the holding number of the premises wherein the tenancy is situated. The petitioners are also aware of the identity of the suit property and the extent of their tenancy in the said premises. The petitioners themselves identified the property and/or their tenancy in the said premises to the learned Advocate Commissioner at the time of holding local inspection in the said premises. They never disputed the correctness of the report submitted by the learned Commissioner. As such, they can neither be taken by surprise nor they can suffer any injury if the plaintiff's prayer for amendment of the schedule of the plaint and/or for correction of the decree is allowed. On the contrary, if such correction is not allowed then the decree which was passed by the learned Trial Judge and was affirmed upto this Hon'ble Court in the second appeal, will be a decree on paper only and the decree holder will be deprived of enjoying the fruits of such litigation which continued for such a long time before different Courts at different stages.
This Court agrees with the findings of the learned Trial Judge that the plaintiff's prayer for amendment of the plaint and/or for correction of the decree cannot be refused only because of pendency of the petitioners' application under Section 47 of the Civil Procedure Code before the Executing Court.
Thus, though this Court does not find any illegality in the order impugned but, still then, this Court makes it clear that while considering the petitioners' application under Section 47 of the Civil Procedure Code and their application for local investigation, the learned Executing Court will consider the merit of those applications independently, as the petitioners still maintain their stand that the suit property cannot be identified even by the substituted schedule which was brought on record by way of amendment of the schedule of the plaint and/or by way of correction of decree in the manner as aforesaid inasmuch as even now the eastern and western boundary of the suit premises which are mentioned in the corrected decree do not tally with the boundaries of the suit property at the site.
This Court, thus, does not find any merit in this revisional application.
The revisional application is, thus, rejected.
Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
( Jyotirmay Bhattacharya, J. )