Karnataka High Court
Mr T S Somanna vs Mrs T B Nanjamma on 17 April, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NOS.12950 & 18333/2011(GM-CPC)
BETWEEN:
Mr. T.S. Somanna,
Son of late Tekkanda Subraya,
Aged about 65 years,
Residing at Kankaladalu Village,
Murnad Post, Madikeri Taluk,
Kodagu District.
...PETITIONER
(By Sri Kamal & Bhanu, Advs.)
AND:
Mrs. T.B. Nanjamma,
Wife of T.U. Balakrishna,
Aged about 60 years,
Residing at Singathur Village,
Chettimani Post, Madikeri,
Kodagu District.
.. RESPONDENT
(By Sri Pundikai Ishwara Bhat, Adv.)
These petitions are filed under Articles 226 and 227
of the Constitution of India, praying to call for the records
and set aside the order dated 28.2.2011 passed in
O.S.No.82/1995 of Civil Judge (Sr.Dn.) Madikeri, Kodagu
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in I.A.No.7 filed under Order 6 Rule 17 & I.A.No.8 filed
under S.152 of CPC as per Annexure-F.
These petitions coming on for preliminary hearing in
'B' group this day, the Court made the following:
ORDER
The respondent filed O.S.No.82/1995 in the Court of the Civil Judge (Sr.Dn.), Madikere against the petitioner to pass a decree of declaration and possession in respect of following three items of properties.
i) 0.60 acres (20 battis) of privileged Jamma Bane wet lands in sy.No.251 of Patta No.15, bounded on the east by Sy.No.250/3, west by Sy.No.249/6, north by Sy.No.265 and south by Sy.No.241/4; with an assessment of Rs.4.70.
ii) 1.09 acres of sagu wet lands (shown as 1.16 acres in the Jamabandi) in Sy.No.265/2 of Patta No.39,bounded on the east by Kadanga, west by Kadanga and Sy.No.252; north by Kadanga and Sy.No.264, and south by Sy.No.251 with an assessment of Rs.13-11.
iii) 5.00 acres of Paradana lands in Sy.No.48/1 of Patta No.63, bounded on the east by village boundary, west by Kadanga and Sy.No.46/1, north by village boundary and south by Sy.No.49/2, 49/1 and 53/9 with an assessment of Rs.141.90.
All situated in Hoddur Village, Madikeri Taluk, Kodagu District.
3Petitioner who was the defendant filed written statement. Suit claim was contested. It was contended that T.U. Balakrishna agreed to sell the entire suit property, he paid sale consideration amount and since then he is in possession and enjoyment of the suit property, even in the absence of a registered sale deed, having acquired right by adverse possession. The description and situation of the suit property was disputed and it was stated that there is no property as described in item Nos.1 and 2 of the schedule, situated in Hoddur Village. The Trial Court raised the following issues :-
1) Whether the plaintiff proves that she is the legally wedded wife of T.U. Balakrishna?
2) Whether the plaintiff proves that she has become absolute owner of the suit schedule properties?
3) Whether the plaintiff proves that her husband had entrusted the suit properties for better management to the defendant and the defendant was rendering accounts to her and all of a sudden stopped rendering accounts and paying profits out of the income from the property?4
4) Whether the defendant proves that he had purchased the property from T.U. Balakrishna as became owner thereof?
OR In the alternative he has perfected his title over the suit schedule properties by adverse possession?
5) What order or decree?
Plaintiff deposed as PW.1 and examined PW.2 and marked Exs.P1 to P7. The defendant got himself examined as DW1. Learned Trial Judge answered issues Nos.1 to 3 in the affirmative and issue No.4 in the negative and on 10.12.1999, decreed the suit and directed the defendants to hand over possession of the suit properties to the plaintiff and render account of income and expenditure of the suit properties, since the year 1981.
2. Plaintiff filed Ex.case No.101/2000, to which, statement of objections was filed inter alia contending that suit schedule item Nos.1 and 2 are not situated in Hoddur Village of Madikeri Taluk and the said items being not in existence in Hoddur Village, delivering of possession of the same does not arise. Decree Holder deposed and marked 5 as Exs.P1 to P4 and Judgment Debtor deposed and marked as Exs.R1 to R4. The Execution Court noticing that the RTCs of suit properties of item Nos.1 and 2 disclose that they are within the limits of Kumbaladalu Village and a mistake has crept in description of the said items of properties in the schedule of the plaint, allowed the execution petition in part and decree holder was held entitled to get possession of item No.3 of the suit properties and in so far as item Nos.1 and 2 are concerned, decree holder was set at liberty to seek rectification or amendment of the decree with regard to the situation of those properties at Kumbaladalu Village, instead of Hoddur Village.
3. The plaintiff thereafter filed I.A.7 under Order 6 Rule 17 R/w 151 of CPC in O.S.No.82/1995 to grant permission to amend the schedule by deleting the word 'all' and for substituting 'item Nos.1 and 2 as situated in Kumbaladalu Village. I.A.8 was filed under Ss.151 and 152 of CPC to correct the decree, to be inconformity with 6 the said amendment. The defendant though filed separate statement of objections to I.A.Nos.7 and 8, learned Trial Judge having considered the rival contentions, finding that on account of a mistake during jamabandi, the said mistake having crept in, found justification to allow I.A.7 and consequently allowed I.A.8, subject to payment of cost of `5,000/-. Plaintiff was permitted by an order dated 28.02.2011, to pay the cost and incorporate the amendment in the plaint. Assailing the said order, this writ petition has been filed.
4. Learned advocate for the petitioner contended that, (a) Learned Trial Judge has committed a serious error in passing the impugned order on account of his failure to take into consideration that I.A.Nos.7 and 8 being not maintainable after passing of the judgment and decree in the suit and, (b) Although, an application for amendment of a plaint after a decree is passed may be permissible in law, if they were to be any arithmetical and clerical mistakes, but there cannot be any substitution of 7 properties. Reliance was placed on the decision in the case of State of Punjab Vs. Darshan Singh, AIR 2003 SC 4179 and it was contended that the impugned order being illegal may be quashed.
5. Mr. Pundikai Ishwara Bhat, learned advocate appearing for the respondent on the other hand contended that, (a) Amendment which is necessary for the purpose of execution of the decree can be permitted to be incorporated, the object being that the Court should allow all amendments which are necessary to determine the real questions in controversy between the parties without causing injustice to other side. (b) Merely because the plaintiff at once upon a time was negligent or careless in not mentioning the correct village name, the same, by itself cannot be a ground for taking away the vested right in a party by a reason of valid decree passed by the Court and as by the reason of amendment, suit properties are not changed.
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6. Perused the writ record. In view of the rival contentions, the point for determination is:
"Whether the Trial Court has jurisdiction to allow an application for amendment of the plaint after a decree is passed and whether a decree which has become final can be amended?"
7. The factual matrix noticed supra, is not in dispute. Plaintiff is the wife of T.U. Balakrishna. She filed the suit for the grant of reliefs, noticed supra. The suit properties, undeniably belonged to T.U. Balakrishna, he having got the same from his father late Uttappa under a partition deed dated 03.05.1972. In the written statement filed to the suit, the petitioner conceded that T.U. Balakrishna had entrusted the management of the plaint schedule properties in his favour and that he managed the same till 10.07.1981. It was contended that, subsequently, T.U. Balakrishna agreed to sell the entire suit properties in his favour for a sale consideration amount of `17,000/-, out of which a sum of `10,000/- was paid in the month of July 1981 and the balance of `7,000/- was paid in the month of June 1982. It was further contended that the 9 defendant has been enjoying the suit properties as owner thereof. It was contended that in view of the payment of entire sale consideration amount, the defendant has been in possession and enjoyment of the suit properties, even in the absence of a registered sale deed and having enjoyed the property for more than 12 years, he acquired the right over the same by adverse possession. No doubt, the description of the suit property was disputed and it was stated that there is no property as described in item Nos.1 and 2 of the schedule of the plaint in Hoddar Village. Though, five issues were raised by the learned Trial Judge, no issue with regard to description of the property and wrong description of the property as alleged was raised. After the trial, the suit was decreed on 10.12.1999. Ex. case No.101/2000 was filed, wherein it was found that there is a mistake with regard to name of the village, in respect of item Nos.1 and 2 of the suit properties. The said execution case was allowed in part on 06.09.2008. 10
8. The plaintiff filed I.A.Nos.7 and 8 on 28.08.2010. Separate statement of objections were filed on 10.12.2010. Learned Trial Judge having considered the record of the case and rival contentions allowed I.A.Nos.7 and 8 on 28.02.2011.
9. It is not in dispute that the three items of the plaint schedule property were shown as situated in Hoddar Village, Madikeri Taluk, Kodagu District. Said mistake was not noticed during the pendency of suit. However, in Ex.Case No.101/2000 decided on 06.09.2008, the mistake with regard to the description of item Nos.1 and 2 of the suit properties was pointed. In view of the observations made in the order passed therein, I.A.Nos.7 and 8 were filed. The incorrect description of the Village as shown in the plaint schedule having been incorporated in the decree, I.A.Nos.7 and 8 were filed for amendment of the plaint and decree schedule. There is no dispute with regard to survey number, extent and boundaries of the properties as shown in item Nos.1 and 2 of the plaint schedule and it 11 is only the name of the village, which had mistakenly crept in, which appears to be due to inadvertence or carelessness.
10. From the record it is clear that, the identity of the suit lands has not been changed and it is not a case where one property being sought to be substituted by another property. There is no dispute that the three items of the properties shown in the plaint schedule belong to T.U. Balakrishna, husband of the plaintiff. On account of inadvertence/mistake, item Nos.1 and 2, instead of being shown to as being situated at Kumbaladalu Village, all the three items of properties were shown in the plaint as situated at Hoddur Village. On account of allowing the amendment of the plaint in terms of the prayer in I.A.7 and consequential amendment of decree, no prejudice as such has occasioned to the defendant/ petitioner.
11. The decision rendered in the case reported at AIR 2003 SC 643 has been held to be per-incurium by the Apex Court, in the case of Kamlesh Babu and others Vs. 12 Lajpat Rai Sharma, (2008) 12 SCC 577. The ratio of decisions in the case of Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd., and others, (2007) 13 SCC 421 and Peethani Suryanarayana and another Vs. Repaka Venkata Ramana Kishore and others, (2009) 11 SCC 308 apply to this case.
12. In the case of Tilak Raj Vs. Baikunthi Devi (Dead) by L.Rs., (2010) 12 SCC 585, the Apex Court has held as follows :-
"22. There was no dispute that the parties in the earlier suit were agitating regarding the estate of Datta Ram. In that view of the matter the appellant was not at fault at all for suing the land as mentioned in the Para A of the plaint filed in suit No. 149 of 1979. Actually, this was a mistake on the part of the patwari or some Revenue Officer, who had issued the aforesaid khasra girdawari. It was nowhere disputed that Khasra No. 26-R/52 was owned by Datta Ram and there was no khasra Number described as 25-R/52. Moreover, no rebuttal on behalf of the respondent was made in the written submissions in Civil Suit No.306 of 1969 or otherwise that it was not Khasra No. 25-R/52.
23. The aforesaid mistake was of clerical nature which could have been corrected by applying the provisions of Section 152 CPC. The counsel appearing for the respondents also during his submissions fairly accepted the aforesaid position. The remedy that was available to the appellant was to file an application seeking for amendment of the decree by way of correcting the clerical mistake in respect of khasra number. Since the mistake was clerical in nature and the 13 appellant being not responsible for the said clerical mistake which had occurred due to wrong recording of khasra number in khasra girdawari, we find no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising the powers under Section 152 CPC.
24. In K.Rajamouli Vs. A.V.K.N. Swamy, (2001)5 SCC 37, this Court held as follows: (SCC p.41, para 6) "6. Section 152 provides that a clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties."
25. Since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for subserving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the courts should not bind itself by the shackles of technicalities.
26. In S. Satnam Singh v. Surender Kaur, (2009) 2 SCC 562, the Court held as follows: (SCC p.569, paras 23-
24) "23. The court may not have a suo motu power to amend a decree but the same would not mean that the court cannot rectify a mistake. If a property was subject-matter of pleadings and the court did not frame an issue which it ought to have done, it can, at a later stage, when pointed out, may amend the decree.
24. The power of amendment, in a case of this nature, as noticed hereinbefore, would not only be dependent upon the power of the court but also the principle that a court shall always be ready and willing to rectify the mistake it has committed." 14
27. We feel that if we direct the appellant to seek remedy under the provisions of Section 152 CPC, it will only delay and prolong the litigation between the parties. In order to cut short the litigation and to save precious time of the court as also to give quietus to the entire dispute, we direct in exercise of the powers under Section 152 CPC that the decree be corrected by giving the correct Khasra No. 26-R/52 in place of Khasra No.25-R/52. Having decided so in the aforesaid manner, we are not required to go into the arguments advanced before us and adjudicate as to whether Order 2 Rule 2 CPC would be applicable in the facts and circumstances of the present case and whether or not the subsequent suit was barred."
In view of the above, in my view, the finding recorded in the impugned order is neither perverse nor illegal. Permission granted to amend the plaint being inconsonance with the ratio of the decision noticed supra, the decision taken to allow I.A.Nos.7 and 8 is flawless. Consequently no interference with the impugned order is warranted.
In the result, writ petition is dismissed with no order as to costs.
Sd/-
JUDGE Ksj/-