Madras High Court
B.Dheenadhayabaran vs Rathna Vel on 24 July, 2015
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.07.2015
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
C.R.P.(NPD)(MD)No.807 of 2012
B.Dheenadhayabaran : Petitioner
Vs.
Rathna Vel : Respondent
Prayer
Civil Revision Petition is filed under Section 115 of Code of Civil
Procedure, to set aside the fair and decreetal order dated 23.02.2012 made in
I.A.No.118 of 2011 in O.S.No.28 of 2008, on the file of Principal District
Court, Ramanathapuram.
!For Petitioner : Mr.A.Arumugam,
For M/s.Ajmal Associates
^For Respondent : Mr.K.Vellaisamy
:ORDER
This Civil Revision Petition is directed against the order dated 23 February, 2012, in I.A.No.118 of 2011 in O.S.No.28 of 2008, whereby and whereunder, the learned Principal District Judge, Ramanathapuram, dismissed the application filed by the petitioner for amendment of plaint and decree schedule.
BRIEF FACTS:
2. The petitioner filed a suit for specific performance on the strength of a sale agreement. The suit was decreed by the Trial Court.
3. The petitioner, long after the decree in O.S.No.28 of 2008, filed an application in I.A.No.118 of 2011, to amend the plaint, on the ground that instead of '22 Jadiyadi', it was wrongly recorded in the plaint as '2 Jadiyadi'. The learned Trial Judge dismissed the application on the ground that by permitting such amendment, the very nature of the suit would be changed. The order dated 23 February, 2012, is under challenge in this Civil Revision Petition.
RIVAL SUBMISSIONS:
4. The learned counsel for the petitioner contended that the Trial Court has got ample powers under Sections 152 and 153 of Code of Civil Procedure, to amend clerical mistakes, which includes mistake in the plaint.
According to the learned counsel, the learned Trial Judge erred in dismissing the application on the ground of delay and the possible change in the nature of the suit.
5. I have also heard the learned counsel for the respondent.
ANALYSIS:
6. The petitioner filed a suit in O.S.No.28 of 2008 before the learned Principal District Judge, Ramanathapuram. It was a suit for specific performance. The Trial Court decreed the suit by judgment and decree dated 07 July, 2010.
7. The petitioner, thereafter, filed an application for amendment.
8. It is true that the application for amendment was filed only after a period of one year. The petitioner has taken up a contention that the correct measurement is 22 Jadiyadi and it was wrongly mentioned as 2 Jadiyadi in the plaint in O.S.No.28 of 2008. The petitioner has also taken up a contention that Ex.A.1 contains the correct measurement.
9. The only question that arises for consideration is as to whether an application for amendment of the plaint is maintainable after decreeing the suit.
LEGAL POSITION:
10. In Abdul Kader v. Chinnaswamy Padayachi [AIR 1980 Madras 116], a learned Judge of this Court considered the scope of Sections 151, 152 and 153 of Code of Civil Procedure and observed that even errors that have crept in the plaint, could be amended by resorting to these provisions. The observation reads thus:
"8..................................................................... ......................Of course, the inherent 'powers are Intended for exceptional cases and are non intended to enable courts to ignore the provisions of law which govern procedure nor could all the inherent powers of a court be used in order to relieve a party from the consequences of his own mistake or to enable him to evade the law of limitation. The Code has reserved to every court 'under Section 151 the inherent power to make such orders as should be made ex debito Justitiae, and every court should have In view. The shortening of litigation preventing duplication of proceedings, and saving the parties from harassment and expenses. Where a purely clerical error is brought to the notice of a High Court when it is seized of the matter as court of appeal, it can, correct the error, and extensive powers of amendment may be exercised under Sections 151 and 153. The provisions of Section 152 give power to the court not only to correct clerical or arithmetical mistakes in judgment, decrees or orders but also errors arising therein from any accidental slip or omission and such correction may be done at any time by the court, even without an application by any of the parties (vide (1941) 2 Mad LJ 452). The court's powers of amendment are not restricted to errors that have crept in the judgment or decree but extend to errors that have crept in plaint, decree, sale certificate etc. Where a property was wrongly described in a plaint in mortgage suit and the mistake is repeated in the and final decree without being noticed either by the parties or by the court, the court has ample powers to amend the plaint, decrees and the judgment and correct the mistakes. Under Section 153, the court has extensive powers to correct mistakes in applications or plaints and it was held that where in a suit on a mortgage the name of the village in which the mortgaged property was situated was miss described and the mistake is discovered an appeal it is the duty of the appellate court to allow an amendment of the plaint and thus rectify a clerical mistake."
11. In Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd., [AIR 2008 SC 225], a suit was filed for declaration and possession of suit property. The suit was decreed. The decree was upheld by the Supreme Court. During the course of execution proceedings, the decree holder filed an application for amendment of plaint and the decree containing the Schedule of property. The Trial Court allowed the amendment. While confirming the judgment, the Supreme Court observed:.
"18. Section 152 of the Code of Civil Procedure empowers the Court to correct its own error in a judgment, decree or order from any accidental slip or omission. The principle behind the said provision is actus curiae nemesis gravabit, i.e., nobody shall be prejudiced by an act of court.
19. Code of Civil Procedure recognises the inherent power of the court. It is not only confined to the amendment of the judgment or decree as envisaged under Section 152 of the code but also inherent power in general. The courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion, should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the Court both in exercise of its power under Section 152 as also under Section 151 of the Code of Civil Procedure. Such a power of the court is well recognized."
12. In R.Srinivasan v. M.Thambusamy [1996 (2) CTC 66], this Court held that an application is maintainable under Section 152 of Code of Civil Procedure, even to correct a clerical or arithmetical error in plaint. This Court said:
"9...........................The finding of the Court below that Section 152, C.P.C. cannot be invoked to correct the survey number of the property and that Section 152 can be invoked only to correct clerical errors or arithmetical errors in the judgments and decrees, in my opinion, is erroneous. Likewise the other reasoning given by the Court below that any kind of correction can be carried out only before the decree is passed, is also not correct. The further conclusion of the Court below that when a decree had been obtained for a particular survey number, it cannot be corrected at the time of execution, is also erroneous. Even assuming without admitting that the petition under Section 152, C.P.C. to correct the survey number may be technically objected to, in the interests of justice, the Court below should have ordered the application in its inherent powers, as the decree holder has obtained the decree after full contest cannot at all be deprived of the fruits of the decree on a technical reason."
13. The learned Trial Judge dismissed the application more on account of delay. Even though it was observed that the very nature of the suit would undergo a sea change on account of the amendment, there are no reasons given by the learned Judge to substantiate the said finding. I am, therefore, of the view that the issue requires fresh consideration.
DISPOSITION:
14. In the result, the order dated 23 February, 2012 is set aside. The application in I.A.No.118 of 2011 is restored to file.
15. The learned Trial Judge is directed to consider the application in I.A.No.118 of 2011, afresh, on merits and as per law, with notice to the respondent.
16. In the upshot, I allow the Civil Revision Petition. No costs.
To The Principal District Court, Ramanathapuram.
.