Madras High Court
R. Srinivasan vs M. Thambusamy on 4 July, 1996
Equivalent citations: 1996(2)CTC66, (1997)IMLJ34
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. Petitioner in CRP.No. 1024 of 1991 (Thambusami) is the plaintiff in O.S.No. 184 of 1982 on the file of the District Munsifs Court, Thiruthuraipoondi. Respondent in CRP.No.1024 of 1991 (R.Srinivasan) is the defendant in the said suit and petitioner in CRP.No. 1833 of 1989. The plaintiff-Thambusami, filed the suit against the defendant-Srinivasan for recovery of possession of 0.40 cents and thatched house measuring 22' x 10' standing thereon and bearing Survey No. 129 situated in Yittukkatti Village, Thiruthuraipoondi Sub-Registry and Taluk and bounded on north, cast, south and west by the properties of Thangavel, Ponnusami, Dhanagopal and Muthiah Thcvar. According to the plaintiff, the survey number was wrongly given in the plaint as R.S.No.129 instead of R.S.No.209/2A. However, there was no dispute regarding the identity of the property and four boundaries. The plaintiffs case is that the suit land belongs to Sri Viswanathaswami temple and he is the tenant of the suit site under the temple from 1972 and he constructed the thatched house for his personal use and has been paying panchayat tax for the same. It is his further case that the defendant was his taram servant from 1979, that he got married, that as he had no house for his own use, on his request, the plaintiff permitted him to live in the suit house for six months on condition that he should vacate the same on demand without any objection, that after the expiry of six months, the defendant requested the plaintiff to allow him to continue for some more time, during which time he would construct a house of his own, that even after two years, the defendant did not. surrender possession, and that even after the issue of notice dated 16.7.1981, the defendant did not surrender possession.
2. Defendant resisted the suit stating that he is in occupation of the suit property with the permission from the temple and that the plaintiff has nothing to do with the same. He did not raise any dispute with regard to the survey number given in the schedule of property in the plaint or with regard to the identity of the same. He has only stated that the measurement and extent mentioned in the plaint is not correct.
3. As stated above, there was no dispute with regard to the identity of the property and also the four boundaries mentioned in the plaint. The defendant had only stated that the measurement given in the plaint is wrong. The defendant also did not say that the house docs not exist.
4. After contest, the suit filed by the plaintiff was decreed. However, when execution was levied, the defendant, who in fact, resides in the suit property, raised an objection that the survey number is wrong and that the decree cannot be executed. Therefore, the plaintiff filed I.A.No. 49 of 1985 for correcting the survey number given in the plaint and incorporated in the decree, under Section 152 of the Code of Civil Procedure. The District Munsif, Thiruthuraipoondi by his order dated 4.12.1986 dismissed the said application on the ground that the application under Section 152, C.P.C. is not maintainable.
5. It is contended by the counsel for the plaintiff (Thambusami) that the Court below has dismissed the application on totally erroneous grounds. The plaintiff preferred CMA.No. 11 of 1987 on the file of the Sub-Court, Nagappattinam. The defendant (Srinivasan) contested the said CMA. among other grounds contending that it was not maintainable. The learned Subordinate Judge has held that the appeal is maintainable and has allowed the corrections as there is no dispute regarding the identity of the property and the survey number mentioned in the plaint and incorporated in the decree since according to him it is only a clerical error. Aggrieved by the said order, the defendant has preferred CRP. No. 1873 of 1989 contending that the civil miscellaneous appeal filed before the Sub-Court was not maintainable against the order under Section 152 C.P.C. The plaintiff thereupon filed a revision petition in this Court with a petition to condone the delay of 878 days in filing the revision, in CMP .No.7323 of 1989, which was ordered after contest on condition of the petitioner- plaintiff paying a sum of Rs. 750 as costs to the counsel for the defendant. On payment of costs, the revision petition was numbered as CRP.No.1024 of 1991 and the same was admitted by this Court on 23.8.1991. The said revision petition was also directed to be posted along with CRP.No.1833 of 1991 for final hearing.
6. I have heard the arguments of Mr. T.M. Hariharan, learned counsel for the plaintiff and Mr. M. Ravindran, learned Senior Counsel for the defendant.
7. Mr. T.M. Hariharan, learned counsel for the plaintiff contended that the order of trial Court dismissing his application for amendment is vitiated by material irregularities in exercise of jurisdiction because it will lead to failure of justice and cause irreparable injury to the plaintiff. It is well settled that- a bona fide mistake with regard to survey number that had crept into the plaint can be rectified. It is also contended by him that there is no dispute regarding the identity of the property and also with regard to four boundaries.
8. In support of his contentions, the learned counsel Mr. T.M. Hariharan relied upon the decision in Subbareddi v. Narayanaswamireddi, AIR 1949 Madras, 282. In that case, an application to amend the description of item No. l of the plaint schedule and in the schedule to the decree in a suit which was ultimately disposed of by this Court in second appeal, by substituting for old survey No. 23 corresponding to Re-survey No. 17/1, Re-survey No. 23/1 corresponding to revision survey No. 27/1. The petitioner before the High Court was the plaintiff in the suit which was for recovery of several items of properties on the allegation that they were properties which originally belonged to one Chelamayya and the plaintiff and defendants 1 and 2 were the nearest reversioners of the said Chelamayya. Both in the Courts below and also in this Court, the case was proceeded on the footing that defendant No. 3 was interested in item 1 of the plaint schedule and after the disposal of the second appeal by this Court, the plaintiff discovered that an error had crept into the description of item 1. The description in the plaint schedule was that it comprised 1 acre 35 cents out of R.S.No.17/1 corresponding to Re-survey No. 23. The correct description should have been Re-survey No. 23/1 corresponding to revision survey No. 27/1. That this is the correct description is clear from the sale deed in favour of defendant No. 3. This mistake in the plaint schedule was never brought to the attention of the Court at any time, and the litigation proceeded on the footing that what the plaintiff was claiming was the property in the possession of defendants. It was not for instance alleged in any of the written statements that item 1 was a property which did not belong to the estate of the last male holder. The application was strongly opposed by defendant No. 3 on the ground that there had been very long delay and that the Court is not competent to grant amendment of the plaint schedule after the dismissal of the suit. Rejecting the objections, Dr.Rajamannar, Officiating C.J. held as follows:
"What is now sought in this application is not an amendment of the pleadings as such; it is really an application to correct an error which has crept also into the decree. The wide language of Sections 152 and 153, Civil P.C. would, in my opinion, cover a case like the present. The correction of an error need not always amount to an amendment of a pleading. I do not think it correct to treat this application as an application under Order 6, Rule I7."
Allowing the application in that case, the eminent and learned Chief Justice has also observed that the application in that case was only to correct such an error and as on the merits, there was no valid objection to the grant of relief and that he was not impressed by any technical objection. The above judgment was followed by another learned single Judge of this Court (Krishnaswami Nayudu, J.) in Krishna Poduval v. Lakshmi Nathiar, , wherein it has been observed as follows:
"Where an application is filed for correction of an error as regards the survey numbers of an item of property in the plaint schedule and the decree schedule and there is no dispute as regards the identity of the property or boundaries to it, the amendment may be allowed under Section 152. The fact that the assignment deed of the property also has the same errors cannot disentitle the applicants to have the errors set right if they are entitled to it under the Code. So also, the amendment cannot be refused on the ground that the decree sought to be amended is barred by limitation."
The learned counsel for the plaintiff also relied on the decision of Punjab and Haryana High Court in Mohinder Singh v. Teja Singh, , which can also be bcncfically looked into in this context. The Punjab & Haryana High Court followed the judgment of our High Court in Krishna Ponduva's case AIR 1951 Madras 751 and other judgments of other High Courts. The Court observed as follows:
"When the mistake in the judgment and decree in a suit for possession occurred due to an accidental slip, by writing Khasra No."20" instead of Khasra No. "24" in the plaint and its notice was not taken even by the defendants during the course of the trial, and when in fact there was no doubt about the identity of the land in dispute, as the same had been kept for establishing a school, in such a case necessary correction could be made in the plaint, judgment and decree under Section 152, C.P.C., because the corrections of the Khasra number would not affect the identity of the field in dispute."
9. In the instance case also, there is no dispute with regard to the identity of the property. The defendant has raised only an objection with regard to the measurement and extent. The learned District Munsif has railed to see this aspect of the matter. Likewise, the Court below has failed to give effect to its own finding that the defendant has not disputed the identity of the property and has not stated that the survey number given in the plaint is wrong. 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 decreeholder has obtained the decree after full contest cannot at all be deprived of the fruits of the decree on a technical reason.
10. As already pointed out, CRP.No.1833 of 1989 was filed against the order of the learned Subordinate Judge, Nagappattinam, in CMA.No.ll of 1987 which was in turn filed against the order of the District Munsif, Thiruthuraipoondi, in I.A.No.49 of 1985. The learned Subordinate Judge allowed the appeal filed by the plaintiff reversing the order of the District Munsif declining to grant the relief under Section 152, C.P.C. As rightly pointed out by Mr.M.Ravindran, learned Senior Counsel fortiie defendant that no appeal against the order of the District Munsif, Thiruthuraipoondi, in I.A.No.49 of 1985, will lie under Order 43, Rule 1, C.P.C. The learned Subordinate Judge has failed to see that against the refusal to grant permission to amend the decree under Section 152, C.P.C, no appeal will He under Order 43, Rule 1. Therefore, the judgment of the learned Subordinate Judge in CMA.No. 11 of 1987 was totally without jurisdiction and the Court below had materially erred in not discussing this aspect in its order. Therefore, the order of the learned Subordinate Judge, Nagappattinam in CMA.No.ll of 1987 dated 13.3.1989 is liable to be set aside only on the short ground that the said appeal is not maintainable. Therefore, CRP.No. 1833 of 1989 is partly allowed only to the extent indicated above. Therefore, the only order which is now amenable for consideration is the order passed by the District Munsif, Thiruthuraipoondi in I.A. No. 49 of 1985 dated, 4.12.1985, which is impugned in CRP.No.1024 of 1991. I have already given ample reasons for accepting the arguments of the learned counsel for' the petitioner -plaintiff. Therefore, I allow CRP. No. 1024 of 1991 and set aside the order in I.A. No. 1024 of 1991 and set aside the order in I.A.No.49 of 1985 dated 4.12.1986. The lower Court shall now permit the plaintiff to amend the plaint and decree in O.S.No.184 of 1982 and proceed further in execution in accordance with law.
11. Both the revision petitions are ordered accordingly. There will be no order as to costs. Consequently, CMP. Nos. 14608 and 14609 of 1993 arc dismissed.