Karnataka High Court
Smt. Siddalingawwa W/O Mallappa ... vs Sri. Siddappa @ Siddanagouda S/O Ogeppa ... on 5 July, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
W.P.No.203998/2014 (GM-CPC)
Between:
1. Smt. Siddalingawwa
W/o Mallappa Salotagi
Aged about 74 years
Occ: House hold
R/o Devar Nimbargi
Tq: Indi, Dist: Bijapur
2. Smt. Channavva alias Shantabai
W/o Lingappa Toravi
Aged about 69 years
Occ: House Hold
R/o Madabhavi, Tq. Bijapur
3. Smt. Padmavva
W/o Bhimray Sinakhed
Aged about 66 years
Occ: House Hold
R/o Halagunaki
Tq. Indi, Dist. Bijapur
... Petitioners
(By Sri Umesh V. Mamadapur, Advocate)
And:
1. Sri Siddappa @ Siddanagouda
S/o Ogeppa Biradar, @ Karni
2
Aged about 76 years
Occ: Agriculture
2. Sri Ogeppa
S/o Siddappa Biradar @ Karani
Aged about 56 years
Occ: Servant
3. Sri Bapuray
S/o Siddappa Biradar @ Karani
Aged about 51 years
Occ: Agriculture
4. Sri Kashiray
S/o Siddappa Biradar @ Karani
Aged about 31 years
Occ: Student
5. Sri Prashant
S/o Siddappa Biradar @ Karani
Aged about 28 years
Occ: Student
All are R/o Devernimbaragi
Tq: Indi, Dist. Bijapur - 586 101
... Respondents
(By Sri Ameet Kumar Deshpande, Adv. for R1 & R3;
Notice to R2 Served,
Notice to R4 & R5 d/w v/o dtd 05.07.2019)
This Writ Petition is filed under Articles 226 & 227 of
Constitution of India praying to issue writ of certiorari
quashing the impugned order dated 02.06.2014 passed on
Civil Misc. Appeal No.07/2008 on the file of the Senior Civil
Judge and JMFC Indi vide Annexure-'H'.
3
This petition coming on for orders this day, the Court
made the following:
ORDER
Notice to be issued to respondent Nos.4 and 5 is dispensed with, as they remained ex-parte before the Senior Civil Judge in Civil Misc. Appeal No.7/2008 and not contested the application filed by the plaintiffs under sections 152 and 153 of CPC.
2. Heard the learned counsel for the petitioners and also learned counsel for respondent No.1 and 3. Respondent No.2 though served with notice remained absent. The counsel for respondent Nos.1 and 3 has no objection to allow the petition.
3. The petitioner has filed this petition calling in question the order passed in Civil Misc. Appeal No.7/2008, dated 02.06.2014 filed under section 152 and 153 of CPC. It was rejected by the trial Court vide order dated 02.06.2014. It appears after passing of the 4 decree in O.S.No.129/1994, the plaintiffs/petitioners herein have filed an application in the FDP petition in Civil Misc. Application No.7/2008. During the FDP proceedings, the plaintiff found some clerical mistakes in the judgment and decree and also in the plaint in O.S.No.129/1994. Therefore, they have filed Civil Misc. Application in No.7/2008 and the decree holders have sought for adjourning the FDP till the final disposal of that Miscellaneous Application.
4. In the said Miscellaneous Application, the petitioners herein have sought for amendment to the plaint by way of correction in the name of some parties and also correction of wrongly typed property numbers, etc., There is no need for this Court to go in detail with regard to the said application filed. The trial Court has dismissed the said application filed under section 152 and 153 of CPC, mainly on the ground that section 152 and 153 of CPC are not applicable so as to amend the 5 plaint and the cause title in the plaint and also property numbers in the body of the plaint. Only on the technical ground, the said application filed under section 152 and 153 of CPC has been dismissed. The trial Court made an observation that section 152 and 153 of CPC are not applicable because those provisions can only be used for correcting the clerical or arithmetical mistakes in judgments, decrees, orders or any proceedings of the Court. However, the trial Court has not passed any orders on merits of the said application.
5. In this context, it is worth to refer here a decision of the Apex Court reported in AIR 1969 Supreme Court 1267 between Jai Jai Ram Manohar Lal vs. National Building Material Supply wherein the Apex Court has observed that:
"Section 153 read with Order 6 Rule 17 and Order 30 Rule 1 of CPC Amendment of plaint - Discretion of Court -- Not to be refused 6 on technical grounds. It was observed by the Apex Court that, the application could not be refused on the ground that there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail. There is no rule that unless in an application for amendment of the plaint, it is expressly averred that the error, omission or misdescription is due to bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations."
6. In another ruling of the Apex Court reported in AIR 1961 Supreme Court page No.325 between Purushotam Umedbhai and Company Vs. Manilal and Sons, where the Apex Court specifically dealt with section 153 of CPC and held that:
"The suit was filed in the name of the partners doing business outside India -- It is only misdescription of plaintiff - Plaint can be 7 amended by substituting partners' names under section 153 - Order 6 Rule 17 have no application under section 153 of CPC. The Court held that the said amendment can be allowed under section 153 even after disposal of the case."
7. In view of the above said ruling of the Apex Court and also the principle that the rules or procedure are only intended to be handy to the administration of justice, infact, the amendment cannot be refused just merely because of some mistake, negligence, inadvertence or any infraction of the rules or procedure. The Court should always heed to the amendment of the pleadings of the parties to administer substantial justice. Unless, it is satisfied that the party applied for amendment is coming with malafide intention or his blunder may not be compensated by any measures. However, even there was some negligence or careless act on the part of the party, that itself may not be sufficient to refuse proper amendment, which is virtually 8 necessary for proper adjudication of the rights of the parties.
8. Therefore, under the above said circumstances, the trial Court has committed serious error in dismissing the application on technical ground. As the trial Court has not given any opinion with regard to the necessity of the amendment, it is just and necessary to consider the application itself on merits instead of remitting the matter to the trial Court. It is seen from the petition averments filed under section 152 and 153 of CPC, the petitioners have sought for correction of father's name of the defendant No.3 as well as change of property name from 115 to 113 and also amendment of cause title in respect of surname of plaintiff-2 and the residence of the plaintiff No.3 so far as this aspects are concerned, respondents who are contesting the FDP proceedings submitted before this Court that the matter has already been compromised 9 between the parties and he has no objections for the said amendment by the plaintiffs, therefore, it would virtually help the FDP Court to dispose of the proceedings as expeditiously as possible.
9. In view of the above said circumstances, the Civil Misc. Application No.07/2008 ought to had been allowed by the trial Court. Under the above said circumstances, I proceed to pass the following:
ORDER Writ petition is allowed. Consequently, the order passed by the Senior Civil Judge Indi in Civil Misc.Appeal No.07/2008 dated 02.06.2014 is hereby set aside. Consequently, the application filed by the petitioners under section 152 and 153 of CPC is hereby allowed. Accordingly, the plaintiff/petitioners are permitted to carryout the amendment as prayed for and further after carrying out the amendment, they can 10 make requisition to FDP Court to proceed with the matter, in accordance with law.
Sd/-
JUDGE VNR Ct: RRJ