Jharkhand High Court
Prasadi Mandal vs (A)Tilki Debya on 24 March, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W. P. (C) No. 8065 of 2012
1.Prasadi Mandal, S/o Late Kistu Mandal
2.Jagarnath Mandal, S/o Late Kistu Mandal
3.Kanhai Mandal, S/o Late Kistu Mandal
4.Budhan Mandal, S/o Late Kistu Mandal
5.Ganesh Mandal, S/o Late Kistu Mandal
1 to 5, resident of Village :- Chungalo, P.O. Kashathi, P.S. Madhupur,
District- Deoghar.
6.Sohawa Devi, D/o Late Kistu Mandal and Wife of Kashi Mandal.
resident of Village- Bhitia Nawadih, P.O. + P.S. Karon, District- Deoghar.
7.Soma Devi, D/o Late Kistu Mandal and wife of Bhupal Mandal.
resident of Village- Sridangal, P.O. Dulampur, P.S.-Devipur, District- Deoghar
.... .. ... Petitioner(s)
Versus
1(A)Tilki Debya, Widow of Late Maku Mandal
1(B) Jaleshwar Mandal, S/o Late Maku Mandal
1(C) Hemlal Mandal, S/o Late Maku Mandal
1(D) Mangleshwar Mandal, S/o Late Maku Mandal
1 (A) to 1(D), all residents of Village- Nayachitkath, P.O.- Rikhiya, P.S. Mohanpur,
District- Deoghar.
1(E) Sheela Debya, Widow of Late Suresh Mandal and daughter of
Late Maku Mandal, resident of Village + P.O. Kanudih, P.S. Simutalla, District-
Jamui (Bihar).
1(F) Reshmi Devi, Wife of Madhu Mandal and Daughter of Late Maku Mandal,
resident of Village- Udaypur, P.O.- Deopura, P.S.- Mohanpur, District- Deoghar.
.. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........
For the Petitioner(s) : Mr. Arvind Kr. Choudhary, Advocate.
For the Respondent(s) : Mr. Kanishka Deo, Advocate
..........
22 / 24.03.2022. Heard, learned counsel for the petitioners, Mr. Arvind Kr. Choudhary and Mr. Kanishka Deo, learned counsel for the respondents.
Mr. Arvind Kr. Choudhary, learned counsel for the petitioners has submitted that the instant Writ Petition has been filed on 22.12.2012 for quashing the order dated 27.4.2012 passed by the Sub Judge IV, Deoghar in Title (Ex) Suit No.1/1997 whereby and whereunder the learned Sub Judge was pleased to reject the petitions dated 20.04.2010 and 20.12.2010 filed on behalf of the decree holders for amendment of the plaint and decree.
Mr. Arvind Kumar Choudhary, learned counsel for the petitioners has submitted that the parties are agnates. A suit for declaration of title and recovery of possession regarding scheduled land A & B properties along with decree of partition of Schedule B property has been filed before the court of learned Sub Judge, Deoghar, vide Title Suit No.54/1972. The said suit was disposed of in terms of judgment dated 27.09.1975 and decree prepared on 10.12.1975, the suit was -2- decided. Thereafter the petitioner(s) filed petition on 20.04.2010 and 20.12.2010 for amendment of the plaint by rectification in preliminary decree and final decree related to certain plots and jamabandi of Schedule property- A. It is stated that instead of Jamabandi No.3 in Schedule-A, it has wrongly been mentioned in decree as Jamabandi no.2 and this defect has cropped up because of the wrong mentioning of jamabandi no.2 in the plaint instead of jamabandi no.3. However, the plot numbers which are mentioned in Schedule-A with their boundaries are not going to prejudice the case of the defendant(s)/ judgment debtor(s) or decree holder(s)/ respondents in any manner.
Mr. Arvind Kumar Choudhary, learned counsel for the petitioners has further submitted that, so far the Schedule-B is concerned, it has categorically been stated in the plaint with respect to Jamabandi no.3, Plot No.96 in the plaint as well as in the preliminary decree, but due to clerical mistake by the Office of the Sub Judge, while preparing the final decree, it has wrongly been typed as 90 because of clerical mistake, as such, rectification in the same shall not be going to prejudice in any manner to the other side and may be rectified, in view of the provisions under Section 152 CPC, 1908, and this issue has already been taken note of by the Hon'ble Apex Court in the case of Tilak Raj vs. Baikunthi Devi (Dead) By Lrs., reported in 2010(12)SCC 585 at Paras, 6, 19, 22, 27 and 35, which may profitably be quoted hereunder for better appreciation:-
6.A petition for execution of the decree was filed by the appellant.
During its execution it was found that Khasra No.25-R/52 has been wrongly mentioned in the decree whereas the correct khasra number was 26-R/52. Due to such a mistake, the decree could not be executed and possession of the decretal land could not be delivered to the appellant.
19. It was also submitted by the learned counsel that since the appellant had failed to move an application as required under Section 152 CPC for rectification of error regarding khasra number and having not filed any application under Order 6 Rule 17 CPC for amendment of the pleadings, which options were although available and the same having not been exercised by the appellant, therefore, these appeals are liable to be dismissed.
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 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.
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 -3- 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.
35. We, accordingly in terms of the aforesaid findings and conclusions, hold and allow:
(a)the prayer of the appellant for rectification of the mistake under Section 152 CPC for correction in the name of Khasra No.26- R/52 in place of Khasra No.25-R/52; and also declare that
(b) half of the land which was released and reconveyed after finding the same to be in surplus vests in the appellant and a declaration to that effect is made under this order. We also hold that the respondent shall be entitled to receive half of the amount paid to FCI i.e. Rs.2023.53 from the appellant. The appellant is directed to pay the abovesaid amount to the respondent within three months from the date of this order along with simple interest @9% per annum to be calculated for the period from the date of payment of the said amount by the respondent to FCI till the date of payment of the amount by the appellant.
Mr. Arvind Kumar Choudhary, learned counsel for the petitioners has thus, submitted, that no prejudice is going to cause to the either side, even though they are knowing that these are formal mistakes, but only for the sake of opposing on the ground that the second suit may be filed for such correction which shall prolong the litigation. Thus,the respondents are not conceding to such rectification. As such, this Hon'ble Court may consider the same under Article 227 of the Constitution of India and by invoking the provisions of Section 152 CPC, such correction may be ordered by this Hon'ble Court.
Mr. Kaniska Deo, learned counsel appearing for the respondents has opposed the same and submitted, that a supplementary counter-affidavit has been filed on 09.03.2022 by the respondents, stating therein that the plaintiff(s) was so careless in pursuing the matter, that even after amendment made in the plaint, such thing has not been detected by the plaintiff(s) and that cannot be taken so lightly by making amendment in the plaint and making correction in the decree.
Mr. Kaniska Deo, learned counsel appearing for the respondents in support of his submissions has placed reliance upon the judgment passed by the Apex Court in the case of Dwaraka Das vs. State of M.P. and Anr., reported in (1999) 3 SCC 500 at Para-6 which may profitably be quoted hereunder :-
"6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decree or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental -4- omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct the omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondent-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30-11-1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State.
Mr. Kaniska Deo, learned counsel appearing for the respondents in support of his submissions has placed reliance upon the another judgment passed by the Hon'ble High Court of Judicature at Patna in the case of Rukmini Devi vs. Pawan Kumar Gupta, reported in AIR 1979 Pat 88 at Para-10 which may profitably be quoted hereunder :-
10. In my opinion such amendment cannot be allowed at the execution stage. If it is allowed the defendant will file fresh written statement, the court will have to frame fresh issue and to deliver fresh judgment on the facts of the case. In my opinion such procedure was never envisaged by the framers of the Code of Civil Procedure. Hence, I am unable to allow the plaintiff decree holder to amend the plaint at this belated stage in the execution proceeding. In this connection the plaintiff decree holder filed a petition for amendment of judgment and decree for passing a decree against defendant no.2. This prayer was rejected on 15-9-1969 no revision was preferred against the order dated 15-9-1969 and, therefore, it has become final between the parties. The executing court was justified in refusing to amend the decree for the simple reason that no relief was claimed in the plaint against defendant No.2. If no relief was claimed against defendant no.2, the executing court was justified in refusing to amend the decree. It is a settled law, that the decree cannot be amended if it is prepared on the basis of the judgment. If there is variance with the judgment and decree then only the decree can be amended otherwise not. In the present case there is no variance with the judgment and decree and as such it cannot be amended.
Mr. Kaniska Deo, learned counsel appearing for the respondents has thus, submitted, that the judgment and decree passed by the learned Sub Judge has not been assailed in appeal, but such correction of jamabandi of Schedule-A and Plot number of Schedule-B is going to prejudice to the respondents, as they have never challenged the impugned judgment and decree passed by the learned Sub Judge, as such, any rectification made subsequently may prejudice the case of the defendants/ respondents, as the new jamabandi has been added for which no averment is made in -5- the plaint, as such, prayer of plaintiffs/ petitioners may be rejected.
After hearing learned counsels for the parties and perusing the entire materials brought on record, it appears that the said suit was filed in the year 1972, but plaintiff(s) has wrongly mentioned in the Schedule of the plaint with regard to Schedule-A, Jamabandi no.2 though it is jamabandi no.3. This mistake has cropped up due to clerical /arithmetical mistake as the documents relied upon for adjudication of Schedule A property has been brought on record as Exhibit-3 and 3/a, which clearly shows that it is jamabandi no.3 instead of jamabandi no.2, as such, no prejudice shall be caused to the defendants/respondents as the document(s) was itself sufficient to examine with respect to jamabandi number of Schedule-A land.
Accordingly, this Court under Section 152 C.P.C., 1908, directs the learned court below to make such necessary correction in the plaint and in the preliminary decree as well as in the final decree passed by the learned court below in the decree and judgment after verifying the same from Exhibit-3 and Exhibit-3/a.
So far Schedule-B is concerned, with respect to plot no.96, it appears that in the plaint as well as in the preliminary decree it has rightly been mentioned as 96, but while preparing final decree it has wrongly been mentioned as 90 instead of 96 because of clerical mistake, which is formal in nature, which ought to have been considered by the learned court below.
This Court after considering the same and looking into the fact, that no prejudice is going to cause to either side, because the document(s) with regard to Schedule-B, Plot no.96, the same is to be corrected. The petitioners/plaintiffs are directed to file a petition under Section 152 CPC before the court below, in view of the judgment passed by the Apex Court in the case of Tilak Raj (supra).
However, the learned court below is directed to pass order in accordance with law by making such correction.
In the result, the instant Writ Petition stands allowed.
(Kailash Prasad Deo, J.) Sandeep/