Andhra HC (Pre-Telangana)
Amina Bee (Died) By L.Rs. And Ors. vs Aisha Khatoon And Ors. on 3 December, 1997
Equivalent citations: 1998(1)ALD129, 1998(1)ALT160, 1998 A I H C 3138, (1998) 1 ANDH LT 160, (1998) 1 LS 221, (1998) 1 ANDHLD 129, (1998) 1 APLJ 90, (1998) 3 CIVLJ 346, (1998) 1 CURCC 566
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioners/plaintiffs preferred the present revision petition aggrieved by the order dated 9-3-1993 passed in I,A.No.859/1988 in O.S.No.7/1973, by the IV Additional Judge, City Civil Court, Hyderabad, in ordering the application filed by the respondents/defendants herein purporting to be under Order 6 Rule 17 read with Section 152 of the Code of Civil Procedure.
Brief Facts :
2. Defendant Nos.1 to 9 in O.S.No.7 of 1973 on the file of the IV Additional Judge, City Civil Court, Hyderabad, filed an application seeking amendment of the preliminary decree dated 21-6-1978 and the warrant issued to the Commissioner correcting the House Number as 23-2-145/1 instead of H.No.23-2-145 as shown in the preliminary decree. The petitioners/plaintiffs filed the suit for partition of Mathruka properties of one late M-A. Lateef and the trial Court after elaborate consideration of the matter decreed the suit for partition of Mathruka properties and a preliminary decree has been passed on 21-6-1978" in respect of the suit schedule property. The petitioners herein preferred CCA No. 109/79 questioning the Judgment and decree in OS.No.7/73 and the same has been partly allowed by this Court on 6-2-1986. The Letters Patent Appeal preferred has been dismissed confirming the Judgment and decree passed by the learned single Judge in C.C.C.A.No. 109/79. However, it is brought to my notice that the special leave petition preferred against the said order in L.P.A., has also been dismissed by the Supreme Court.
3. In the final decree proceedings Sri Viskwanatha Rao Jadhav, Advocate has been appointed as Commissioner for dividing the suit schedule properties by metes and bounds. The Commissioner is stated to have visited, for the purpose of inspection and taking measurements of the items - House bearing No.23-2-145, situated at Mogulpura, Hyderabad and at the time of inspection, some of the parties arc stated to have raised objection stating that the said house is not the one bearing No.27-2-145; but, it is the house bearing No.23-2-145/1. The Commissioner is stated to have submitted a report to that effect. It is at this stage, the respondents-defendants preferred the application for amendment of the preliminary decree dated 21-6-1978, to correct the house number as 23-2-145/1 instead of2-3-145.
4. The petitioner/Plaintiff No.4, on behalf of the petitioners/plaintiffs resisted the application and filed a counter-affidavit stating that all the properties left by M.A. Lateef have been added and shown as the suit schedule property and after trial, the trial Court came to the conclusion that some of the items are not Matliruka properties of M.A. Lateef. It is their case that the application filed by the respondents/defendants is not tenable and they have no such right to ask for amendment of the preliminary decree. The application is totally misconceived and it is not permissible to amend the preliminary decree or the plaint or the warrant at this stage.
5. The trial Court examined PW1 on behalf of the petitioners/plaintiffs and RW1 was examined on behalf of the respondents/ defendants therein, and Exs.A1 and A2 were marked. After elaborate consideration of the matter, the trial Court passed an order directing amendment of the preliminary decree granted on 21-6-1978 in the suit.
6. In this civil revision petition, the learned Counsel for the petitioners/plaintiffs, Sri Vilas V.Afzulpurkar submits that the impugned order passed by the trial Court suffers from incurable defect, as the trial Court has no jurisdiction whatsoever to pass orders amending the preliminary decree, inasmuch as the said preliminary decree is modified by the High Court in C.C.C.A.No. 109/79. It is the submission of the learned Counsel for the petitioners/plaintiffs that if at all there is any need to pass an order directing amendment of the preliminary decree, it is only this Court that could have passed the order, as the preliminary decree granted in the suit has merged into the decree and judgment passed by this Court in C.C.C.A.No. 109/79. It is the case of the petitioners/plaintiffs that such an amendment in the preliminary decree would amount to substituting an item in the suit schedule property, after passing of the preliminary decree.
7. Sri C. Malla Reddy, learned senior Counsel appearing on behalf of the respondents/defendants in the revision petition submits that the order passed by the trial Court does not suffer from any infirmity whatsoever inasmuch as mere is no jurisdictional error warranting interference of this Court in exercise of its jurisdiction under Section 115 of the Code of Civil Procedure (for short 'the Code'). The trial Court had rightly passed the order amending the preliminary decree with a view to avoid further litigation between the parties and multiplicity of proceedings. The trial Court, according to the learned senior Counsel does not become functus officio and it can always pass appropriate orders, ordering amendment of the decree in the interest of justice. The doctrine of merger has no application whatsoever in a case, where the Judgment and decree are confirmed, but, is applicable only in cases where the Judgment and decree of the trial Court is reversed by the appellate Court.
8. There is one important aspect required to be noticed is that it is nobody's case that some clerical or arithmetical mistake has crept into the judgment or decree. It is nobody's case that on account of accidental slip or omission the house number is described as 23-2-145 instead of 23-2-145/1. Even the respondents/defendants did not plead that on account of any clerical or arithmetical mistake the premises number has been wrongly shown as 23-2-145. The application for amendment of the preliminary decree is based upon an allegation that some of the parties have resisted the inspection and measurement work undertaken by the Advocate-Commissioner on the ground that the premises in their possession is bearing No.23-2-145/1, which is not one of the suit schedule items. It would indicate that there is substantial dispute between the parties relating to the property itself. It is not a case of correction of arithmetical or clerical mistake in the judgment and decree. Under these circumstances, the trial Court passed an order directing amendment of the preliminary decree. I am of the considered opinion that no party can be allowed to raise any dispute with regard to an item, which was not shown in the suit schedule. It would amount to bringing some property into the dispute for the first time in respect of which there is no trial and adjudication. How can any property be brought into picture for the first time and made part of the decree and how can it be made available for partition without any trial and a finding as to whether the said item of the property is available for partition and whether it was a Mathruka property?
9. The trial Court ordered the application on the ground that late M.A. Lateef owned the house bearing No.23-2-145/1 and, therefore, whether the house is described as 23-2-145 or 23-2-145/1 should not matter for effecting partition. The trail Court observed that the 'intention of the Judge' should be taken into consideration at the time of passing of preliminary decree. The trial Court further observed that the preliminary decree was passed to divide the house of late M.A. Lateef among the parties and so the wrong number 2-3-145, instead of 2-3-145/1 is only an error which can be corrected under Section 152 of the Code and it will change neither the nature, nor the character nor the rights of the properties. It is rather difficult to appreciate as to on what basis the trial Court held that it is only an error which can be corrected under Section 152 of the Code. It is, at this stage, the Court is required to notice the pleadings, contents of the application seeking amendment of the preliminary decree. There is not even a whisper in the affidavit filed in support of the application, by the respondents herein that the house number was wrongly shown as 23-2-145 in the preliminary decree on account of any clerical or arithmetical error. In fact, in the plaint, itself, the same is shown as 23-2-145 and no objection whatsoever has been raised in the written-statement about the description of the property. The parties went to trial on the basis that the premises number is 23-2-145. It is true that arithmetical or clerical error in the Judgment and decree can always be corrected by the Court.
10. In this case, the parties carried the preliminary decree and judgment passed in O.S.No.7/73 in appeal before this Court in C.C.C.A.No.109/79 and this Court modified the decree and judgment of the trial Court by its Judgment and decree dated 6-2-1986, Even during the hearing of the appeal, there was never an attempt by any of the parties to get the mistake, if any, corrected.
11. Be that as it may, can the trial Court pass an order directing amendment of the preliminary decree after merger of such decree into the decree and Judgment passed by the appellate Court. In Gojer Brothers v. Ratan Lal, the Supreme Court observed that where the decree of the trial Court is carried in appeal and the appellate Court disposes of the appeal after a contented hearing, the decree to be executed is the decree of the appellate Court. The Supreme Court further observed :
"The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate Court is that in such cases the decree of the trial Court is merged in the decree of the appellate Court. In course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like Revisions and even to proceedings before quasi-judicial and executive authorities."
It is further observed by the Supreme Court that "application of this very principle 'yields' the result that if the Court of appeal confirms, varies or reverses the decree of the lower Court, the decree of the appellate Court is the only decree that can be amended."
12. In the instant case, the preliminary decree has been the subject matter of appeal and this Court disposed of the appeal after contest. Ofcourse the Letters Potent Appeal has been dismissed at the admission stage. It is, thus, clear that what could have been executed is the preliminary decree granted by this Court in C.C.C.A.No.109/79. Under these circumstances, the trial Court could not have ordered amendment of the preliminary decree granted by this Court.
13. In Narkulla Venkayya v. Noona Satyanarayana, while dealing with the scope and amplitude of the power of the Court under Section 152 of the Code to correct the accidental slip or clerical mistake a Division Bench of this Court observed that :
"In appropriate cases like this where the mistakes have arisen by reason of inadvertence in entering the number in the plaint, the Court has ample powers under Section 152 to correct such mistakes. The Court below has discussed this point at length. We do not feel called upon to enter into a detailed discussion on the subject with reference to the authorities on the point. But we feel however, that this power could have been exercised only by the Court that passed the decree in appeal.
The trial Court could not rectify such mistakes in the judgment or decree which has been superseded by the appellate Court's decree or has merged into the same"
It is in this context, the amended provision of Section 153A of the Code is required to be read as it would throw some light as to under what circumstances, the trial Court can exercise the power to amend the decree under Section 152 of the Code, even though such decree has been subjected to an appeal. Section 153A reads as follows :
"Where an appellate Court dismisses an appeal under Rule 11 of Order XLI, the .power of the Court to amend, under Section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance."
Thus, Section 153A in categorical terms clarifies and says that the trial Court can order amendment of the decree in exercise of its power under Section 152 even after confirmation of such decree by the appellate Court, provided the appellate Court dismisses the appeal in exercise of its power under Rule 11 of Order XLI. It means that the trial Court still can pass an order amending the decree, but only in cases where the appellate Court dismisses the appeal without sending for the records from the trial Court and hearing the opposite party. The trial Court can exercise such power of amendment of the decree only in cases where the appellate Court dismisses the appeal at the admission stage.
14. In Kannan v. Narayani, AIR 1980 Kerala 78 (FB), a Full Bench of Kerala High Court observed that :
"There is another answer to the case of the revision petitioner before us. Section 153A of the Code of Civil Procedure has been incorporated in the Code by Code of Civil Procedure (Amendment) Act, 1976. That Section reads thus :
"753. A power to amend decree or order where appeal is summarily dismissed. Where an appellate Court dismisses an appeal under Rule 11 of Order XLI, the power of the Court to amend, under Section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance."
When the statute makes specific provision that when the dismissal of an appeal is in limine under Order XLI, Rule 11 the Court of first instance will have the power to correct the decree or order, it logically follows that this would not be the case where the appeal has been dismissed not in limine but on the merits. This would be sufficient to hold against the revision petitioner and would be a complete answer to his case. Counsel for the revision petitioner urges that we should not read Section 153A in a plain manner, but on the other hand understand mat provision in the background that divergent views had been expressed by Courts on the question whether a dismissal of the appeal in limine would result in merger of the decree of the trial Court in the decree of the appellate Court and that was sought to be resolved by the amendment. The Courts which took the view that when an appeal is disposed of on the merits, the decree of the trial Court merges with that of the appellate Court, were themselves divided on the issue whether in cases where the disposal of the appeal by the appellate Court was in limine wider Order XLI, Rule 11 of the Code there would be such merger. According to Counsel Section 153A of the Code is intended to solve this situation and to provide that in such a case the decree that is to be amended would be that of the Court of first instance. The Courts in India were more or less uniform, on the question of merger of decree in the appellate decree when the appeal is disposed of on the merits, of course, barring exceptions such as the view expressed by this Court in 1969 KerLT 710. Apparently, the Legislature did not think it necessary to make any provision in regard to the amendment in cases where appeals are disposed of not under Order XLI, Rule 11 but on the merits. Section 153A eloquently implies that in ' case of disposal of appeals otherwise than under Order XLI, Rule 11 the Court of first instance would not have the power to amend its decree or order."
15. However, Sri G. Malla Reddy, learned senior Counsel appearing on behalf of the respondents/defendants in the revision petition relied upon a Division Bench decision of this Court in S. Burrayya v. S. Atchayyamma, in support of his submission. It is rather difficult to appreciate as to how the said case would support the case of the respondents/defendants. In the said case, a Division Bench of this Court considered the scope of Order 6 Rule 17 read with Section 153 of the Code and held that the said provision empowers the Court to allow either party to alter or amend the pleadings at any stage of the proceedings, so long as the Court is in seisin of the proceedings. The Court held that the proceedings must be deemed to be pending in a partition suit till the suit reaches the stage of final decree. There cannot be any dispute with regard to the proposition, but here is a case where the preliminary decree granted by the trial Court had merged into the decree and judgment passed by this Court in C.C.C.A.No.109/79. The trial Court in the instant case ordered correction and substitution in the preliminary decree without there being any amendment to the plaint schedule. Any attempt whatsoever to amend the plaint schedule perhaps would have met with some resistance from the petitioners herein and on wider grounds. The trial Court had chosen to order amendment of the preliminary decree without ordering any amendment to the pleadings. Learned senior Counsel further relied upon the decision of the Supreme Court in Janakirama Iyer v. Nilakanta Iyer, . In the said case, the Supreme Court considered the scope of Sections 151 and 152 and held that "a clerical or arithmetical error can be corrected by the High Court in the decretal order even after the Supreme Court admitted the appeal against the decree and Judgment granted by the High Court." It is clear from a reading of the Judgment that it was a case of correction or aritlimetical or clerical error and the matter was pending on the file of the Supreme Court without the High Court decree being confirmed, varied or annulled. Under those circumstances, the Supreme Court observed that the High Court can order correction of clerical or arithmetical mistakes in the decree passed by it. In the said case instead of 'mesne profits', it was typed as 'net profits' in the decree. The said mistake was directed to be corrected. The said Judgment docs not render any assistance whatsoever to the plea taken by the respondents/defendants. The case of M/s. Hyderabad Allwyn Ltd. v. K. Patel, 1987 (1) ALT 184 also would not lend any support whatsoever to the case of the respondents/defendants. It was a case where the name of the party was ordered to be amended as there was no change in the identity of the party. The question that has arisen was - as to whether the learned single Judge after disposal of the C.C.C.A. could entertain application for correction in the decree after dismissal of the Letters Patent Appeal preferred against the said decree and Judgment in the C.C.C.A. But it is required to notice that the Letter Patent Appeals were dismissed at the stage of admission and in those circumstances this Court observed that the first appellate Court, that is to say, the learned single Judge could have passed an order directing such amendment. The principle of Order XLI Rule 11 has been applied and the Judgment of this Court is in confirmity with the Judgment of the Full Bench of the Kerala High Court (FB) supra).
16. Learned senior Counsel referred to yet another decision of this Court in K. Ram Reddy v. K.Kantha Reddy, 1997 (5) ALD 98. It was a case where this Court observed that in a partition suit the plaint can be amended at any time, including of certain items of property and such application can always be ordered by the Court in exercise of its power under Order VI Rule 17 of the Code. It was not a case of amendment in preliminary decree, after confirmation by the appellate Court.
17. It is true that the Apex Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, , observed that "Rules of proeedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs." That was a case where the Supreme Court was dealing with the scope of Order VI Rule 17 CPC relating to amendment of pleadings and it was not a case of amendment of the preliminary decree after its confirmation by the appellate Court.
18. The case of K.P. Rangaiah v. K. Krishnaiah, also deals with the scope and amplitude of the power of the Court under Section 152 of the Code. In that case, this Court observed that a suit will still continue even after the preliminary decree and it is only after the final decree, the suit can be said to be terminated and for that reason it is always open to the Court to amend the plaint and decree schedules at any stage before passing of the final decree. In the very same judgment, it is observed by the Court that such amendment is permissible only if it relates to a clerical or arithmetical error. But "where the error related to a mistaken identity of the property, but not a misdescription thereof. Proceedings under Section 152 of the CPC cannot be resorted to." It was a case where the plaint schedule, as well as the preliminary decree was sought to be amended on the ground that some mistakes have crept into the schedule of lands appended to the plaint and consequently in the preliminary decree. In such type cases, there is no difficulty whatsoever for ordering amendment of the plaint schedule, as well as the preliminary decree. But, here it is no body's case that such a mistake is crept into the plaint schedule or the preliminary decree and on the other hand the cause is stated to have accrued on account of the resistance offered by some of the plaintiffs on the ground that the house bearing No.23-2-145 is not available for partition. It was nobody's case that it was a clerical or arithmetical mistake cither in the plaint schedule or in the preliminary decree. Even in such a situation, the amendment, if any, could have been ordered only by this Court, as the decree and Judgment of the trial Court in OS.No.7/73 had got merged into the decree and Judgment passed by this Court in C.C.C.A.No.109/79. However, it is required to notice that a learned single Judge of Madras High Court in Kannapan v. Rajeswari Ammal, had taken slightly a different view and distinguished the Full Bench Judgment of the Kerala High Court (FB)). In my considered opinion the Judgment of the Madras High Court is not an authority for the proposition that the trial Court can amend the preliminary decree even after merger of such decree into the decree and judgment of the appellate Court. It was a case where the full description of the disputed property was given in the petition for eviction filed under Tamil Nadu Buildings (Lease and Rent Control) Act, I960, but the same was not included in the decretal order with full description as stated in the petition. In those circumstances, the Madras High Court took the view that the original Court can order for correction in the preliminary decree after its confirmation by the appellate Court. It was a case where there was no mistake in the petition schedule, but an accidental slip occurred in the preparation of the decretal order. The case is not an authority for the proposition that the trial Court still retains jurisdiction to order amendment in the preliminary decree even after its merger in the decree of the appellate Court.
19. Viewed from any angle, the impugned order, in my considered opinion suffers from incurable infirmity. The impugned order suffers from lack of jurisdiction. The application under Section 152 read with Order 6 Rule 17 of the Code filed by the respondents/defendants in the trial Court is totally mischicved, as admittedly it is not a case of arithmcticai or clerical error. The trial Court has not ordered any amendment in the plaint schedule and straight away amendment has been ordered amending the preliminary decree. The case does not fall under Order 6 Rule 17 and Section 152 of the Code of Civil Procedure.
20. That apart, the decree passed by the trial Court in O.S.No.7/73 had merged into the decree and Judgment passed by this Court in C.C.C.A.No. 109/79 and if at all any amendment has to be ordered, it is only this Court that could have ordered such amendment. For all the aforesaid reasons the order passed in I.A.No.859/88 in OS.No.7/1973 dated 9-3-1993, by learned the IV Additional Judge, City Civil Court, Hyderabad, is set aside and the civil revision petition is allowed. No costs.