Kerala High Court
Deepu vs Abdul Rasheed on 1 October, 2010
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
THURSDAY, THE 22ND DAY OF MARCH 2012/2ND CHAITHRA 1934
WP(C).No.2038 of 2007 (P)
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I.A.NO.107/05 IN OS.162/2004 OF SUB COURT, ATTINGAL
PETITIONER(S):
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1. DEEPU, S/O.DINESAN, RESIDING AT
MEDAYIL VEEDU, PETTAH, THIRUVANANTHAPURAM.
2. PREMALEKHA, RESIDING AT MEDAYIL VEEDU,
PETTAH, THIRUVANANTHAPURAM.
3. DANYA DINESH, RESIDING AT,
MEDAYIL VEEDU, PETTAH, THIRUVANANTHAPURAM.
BY ADVS.SRI.M.R.ANANDAKUTTAN
SMT.M.HEMALATHA
SRI.R.S.MADHU
SRI.MAHESH ANANDAKUTTAN
RESPONDENT(S):
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1. ABDUL RASHEED, S/O.ABU BAKER,
AMARALO, MAVINMOODU, MULLARAMCODE
OTTOOR VILLAGE.
2. SUBAIDA BEEVI ALIAS SUBAIDA RASHEED,
RESIDING AT AMARALO, MAVINMOODU,
MULLARAMCODE, OTTOOR VILLAGE.
3. PRABHAKARAN, RESIDING AT - {3RD RESPONDENT IS DELETED
PUZHPAVADY, NEDUNGANDA, {VIDE ORDER DATED 1.10.2010 IN
NEAR B.ED. COLLEGE, NEDUNGANDA. {I.A.NO.13466/10
BY ADV. SRI.T.M.ABDUL LATHEEF
BY ADV. SRI.A.MOHAMED RASHEED
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-03-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WPC 2038/2007
APPENDIX
PETITIONERS' EXHIBITS :
EXT.P1: COPY OF THE AMENDMENT PETITION AS I.A.NO.107 OF 2005 IN
O.S.NO.162/04 BEFORE THE SUB COURT, ATTINGAL.
EXT.P2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS DATED
31.3.2005 BEFORE THE SUB COURT, ATTINGAL.
EXT.P3: COPY OF THE ORDER DATED 20.10.2006 IN I.A.NO.107/05 IN
O.S.NO.162/04 OF SUB COURT, ATTINGAL.
RESPONDENTS' EXHIBITS :
NIL
//TRUE COPY//
PA TO JUDGE
K.T.SANKARAN, J.
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W.P.(C) No.2038 of 2007
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Dated this the 22nd day of March, 2012
JUDGMENT
The respondents/defendants 1 and 2 entered into an agreement dated 2.1.2002 with Dinesan, son of Neelakantan, under which the latter agreed to purchase the plaint schedule property. A sum of ` 3,00,000/- was paid as advance to defendants 1 and 2. The transaction did not materialise. O.S.No.162 of 2004 on the file of the court of the Subordinate Judge of Attingal was filed against the respondents and one Prabhakaran for return of the advance amount. The suit was filed in November, 2004.
2. In the plaint, the name of the plaintiff was shown as Dinesan, son of Neelakantan. In fact, Dinesan died on 2.10.2002, much before the date of filing of the suit.
3. The first petitioner (Deepu), who is the son of Dinesan, filed I.A.No.107 of 2005 in the suit for amendment W.P(C) No.2038/2007 2 of plaint. In the affidavit accompanying the application, Deepu stated that he had instituted the suit. It is also stated in the affidavit thus:
"3. At the time of drafting the pleadings, I failed to disclose about the death of my father and accordingly though I have instituted this suit and I have signed the pleadings the pleadings are so drafted and incorporated as if my father is alive.
4. It is only a bonafide mistake that has crept in due to my oversight."
4. In I.A.No.107 of 2005, the name of the plaintiff is sought be corrected as Deepu, son of Dinesan. The other consequential amendments were also sought for in the application.
5. Defendants 1 and 2 filed a counter affidavit in I.A.No.107 of 2005. They contended that the application is not maintainable. The nature and description of the suit is sought to W.P(C) No.2038/2007 3 be changed by the amendment. It was also stated in the counter affidavit thus :
"2. ........... The plaintiff was actually practising fraud upon this Honourable Court by showing a dead person as plaintiff, the person who signed the plaint on behalf of the dead person is liable to be prosecuted and W.P.(C) No.1111 of 2005 is pending before the Honourable High Court.
3. In the affidavit filed in support of the amendment petition, it is stated that the petitioner in the amendment petition failed to disclose about the death of his father. The circumstances under which and the reason for such a non disclosure was not stated and even he was impersonating a dead person, whose deceitful intention in obtaining a decree against us by defrauding this Honourable Court cannot be allowed to be mitigated by filing a petition of this nature for amendment."
6. Defendants 1 and 2 also raised a contention that the W.P(C) No.2038/2007 4 claim is barred by limitation and therefore, the application cannot be allowed. They also pointed out that Dinesan is survived by his wife and two children including the petitioner. The other legal representatives were not shown as parties in the suit.
7. There is no dispute that the legal representatives of Dinesan are his widow Premalekha and children Deepu and Danya Dinesh. Premalekha and Danya Dinesh are petitioners 2 and 3 in this Writ Petition, though they were not made parties in the suit.
8. The court below dismissed the application for amendment of plaint on the following grounds :
i. There is no explanation in the application as to the circumstances under which the suit was instituted in the name of a wrong person.
ii. There is no pleading as to the other legal heirs of W.P(C) No.2038/2007 5 Dinesan that they are necessary parties to the suit. iii. No affidavit of the other legal heirs of Dinesan is filed.
iv. It is difficult to believe that at the time of putting his signature, Deepu was not aware that in the pleadings, affidavit and vakalath, the name of Dinesan was shown.
v. The inherent defects in the plaint cannot be rectified by amendment.
9. The first petitioner stated in his affidavit in clear terms that he instituted the suit and he signed the pleadings, affidavit and vakalath. Admittedly, Dinesan was no more at the time when the suit was filed. The clear averments in the affidavit accompanying I.A.No.107 of 2005 that the first petitioner put his signature in the plaint, affidavit and in the vakalath are not denied in the counter affidavit filed by defendants 1 and 2. There is no case for defendants 1 and 2 that some other person impersonated Dinesan. Their case is W.P(C) No.2038/2007 6 that the first petitioner impersonated Dinesan.
10. Since Dinesan was dead on 2.10.2002, the first petitioner was not going to gain anything by filing a suit in November, 2004 showing Dinesan as alive then. That itself is a clear indication that mistakes occurred while preparing the pleadings and the affidavit. It is common knowledge that the pleadings would be prepared at the Advocate's office and the necessary details regarding names and address of parties would be incorporated in the pleadings and affidavits, most probably, by the Advocate's clerk. It is true that one is expected to read and understand the contents of the pleadings and other papers which he is expected to sign. But the mere fact that there was an omission in that respect should not result in defeating his right to approach the court. It is true that the amendment application was filed on 12.1.2005, three years after the date of the agreement. The period of three years expired on 2.1.2005. That by itself is not a reason to reject the application for amendment. The Supreme Court in a catena of W.P(C) No.2038/2007 7 decisions have held that an application for amendment can be allowed even after the claim is barred by limitation, provided sufficient reasons are shown. Section 21 of the Limitation Act provides that where after the institution of a suit, a new plaintiff or, defendant is added, the suit shall, as regards him, be deed to have been instituted when he was so made a party. The proviso to Sub Section (1) of Section 21 states that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Strictly speaking, it is not a case for substituting or adding a new claim. Going by the averments in the affidavit of the first petitioner, he instituted the suit, but the plaint was prepared in such a way as if his father was alive and as if his father was filing the suit. According to the petitioner, this was a mistake. According to him, his name should have been shown as the plaintiff and the averments in the plaint should have been made accordingly. The petitioner is not sought to be impleaded as the legal representative of W.P(C) No.2038/2007 8 deceased Dinesan, since the death of Dinesan did not take place after the institution of the suit. Dinesan died much before the institution of the suit and his legal representatives could file the suit after his death. According to the first petitioner, he filed the suit as one of the legal representatives of deceased Dinesan. But while preparing the plaint and other papers including the vakalath, mistakes crept in. The learned counsel for the petitioners submitted that most probably, the mistakes were committed in the Advocate's office and the necessary details were furnished in the plaint on the basis of the agreement which was produced along with the plaint. The learned counsel submitted that some communication gap occurred at some point of time in the Advocate's office and the person who drafted the plaint did not know that Dinesan was dead. The counsel added that unfortunately such averments were not made in I.A.No.107 of 2005 and no separate affidavit of the counsel or clerk was filed along with the application admitting their mistake.
11. In Renjithmon K.R. vs. P.J.Mary and others (2011(2) W.P(C) No.2038/2007 9 KHC 961), a question arose whether an affidavit accompanying the application under Order 33 Rule 1 C.P.C. could be corrected. In that context, it was held thus :
"3. The contention of the petitioner that a mistake could be corrected only if the same occurs in the plaint or in the written statement and that mistakes in any other proceeding including affidavits could not be corrected, if accepted, it would lead to disastrous consequences. Mistakes may occur in an interlocutory application or in an affidavit or in a statement or in a counter statement. If it is found that a mistake has occurred, the party concerned would be entitled to file an application to correct the mistake. There need not be any specific provision in the Code of Civil Procedure for correcting such errors. Even assuming that Rule 17 of Order VI of the Code of Civil Procedure, as such, is not applicable, the inherent power of the Court under Section 151 of the Code of Civil Procedure can be invoked to correct certain patent mistakes. Section 153 of the Code of Civil Procedure provides that the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made W.P(C) No.2038/2007 10 for the purpose of determining the real question or issue raised by or depending on such proceeding. There is no reason why Section 153 of the Code of Civil Procedure cannot be invoked in the present case. The expression "proceeding in a suit" applies not only to pleadings as defined in Rule 1 of Order VI of the Code of Civil Procedure, but to any other proceeding or affidavit or statement or paper presented to the Court. The civil court which has to deal with a suit or proceeding would have all the inherent powers to enable it to determine the questions involved in the suit or proceedings. A mistake or omission or error would not stand in the way of the court in discharging functions as a court. The court has every power to allow the parties to rectify the mistake or error or supply the omission, if it does not offend the specific provisions in the Code of Civil Procedure or other laws."
12. In Gopinathan vs. K.N.Ravichandran and others (2011 (2) KHC 965), a question arose whether the name of the father of a defendant wrongly entered in the vakalath could be corrected. Answering in the affirmative, it was held thus :
"7. Section 153 of the Code of Civil Procedure W.P(C) No.2038/2007 11 provides that the court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. I am of the view that the expression "proceedings" includes vakalath and affidavit filed by the parties in the suit. No litigant shall suffer due to a mistake committed either by his counsel or by the clerk while filling up the vakalath or while entering the name of the father of the deponent in the affidavit. The purpose of amendment is to avoid multiplicity of proceedings. Another object of the general power to amend under Section 153 C.P.C. is to enable the court to determine the real question or issue involved in the case. When the real dispute involved in the case is known to both parties, no prejudice would be caused to any party by allowing the prayer for correcting the mistake. It cannot be said that the court has no power to allow a party to correct a mistake in the papers submitted by him including the vakalath. It is true that the vakalath does not constitute a pleading as defined in Rule 1 of Order VI of the Code of Civil Procedure. "Pleading" shall mean plaint or written statement. I am W.P(C) No.2038/2007 12 of the view that Section 153 of the Code of Civil Procedure confers jurisdiction on the court to allow such correction to be made. Even assuming that Section 153 does not apply, nothing prevents the court from exercising the jurisdiction under Section 151 of the Code of Civil Procedure which saves the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the court. Section 152 of the Code of Civil Procedure provides that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising out of accidental slip or omission may at any time be corrected by the court either by its own motion or on application of any of the parties. Going by the scheme of the Code of Civil Procedure, it can safely be held that the court does not penalise a party for an accidental slip or omission on his part or a mistake committed by him in the pleadings or in any other paper submitted before court. In Baldeo vs. Lachhmi Narain : Air 1934 Allahabad 810, it was held that an omission of Vakil's name in the vakalatnama can be supplemented invoking Section 153 of the Code of Civil Procedure. I do not find any ground to accept the contention raised by the learned senior counsel for the petitioner." W.P(C) No.2038/2007 13
13. In the present case, it is very clear that a mistake occurred while drafting the plaint and affidavit and filling up the details in the vakalath. Those mistakes are sought to be corrected as per an application for amendment. The application for amendment of plaint was filed on 12.1.2005, much before the date of filing of the written statement of the defendants. The written statement was filed on 31.3.2005. It is not a case where the petitioner wanted to impress the court that Dinesan was alive and the suit was filed by Dinesan. The signature in the plaint is not that of Dinesan. According to the petitioner, he put the signature. This specific averment is not denied by the defendants. That indicates that a mistake occurred as alleged by the petitioner. The claim made by the petitioner should not be defeated on a ground that he committed certain mistakes while preparing the pleadings, affidavit and vakalath. In legal matters, the papers are prepared usually by the Advocates. Normally, the litigant would not have much of a role in the matter of filling up the vakalath or drafting the affidavit and pleadings. The claim made by the first petitioner is to be W.P(C) No.2038/2007 14 disposed of on the merits and not on the ground of technicalities. His case is that his father had given ` 3 lakhs as advance for purchasing a property and the defendants are liable to repay the same. He should not be denied the benefit of getting the reliefs which his father would have got had he been alive, provided the claim is genuine. Only on the ground that the name of a dead man was mistakenly shown as the plaintiff, his legal representative, who would have normally filed the suit, should not be denied his legitimate rights. The suit was filed within time. No new reliefs are sought to be made. No new parties are sought to be impleaded. Therefore, it cannot be said that a new claim was put forward after the period of limitation. In these circumstances, the amendment shall take effect from the date of plaint and not from the date on which it was filed or allowed.
14. The court below committed a jurisdictional error in dismissing the application which resulted in grave injustice. The jurisdiction of this Court under Article 227 requires to be W.P(C) No.2038/2007 15 exercised in the facts and circumstances of the case.
For the aforesaid reasons, the Writ Petition is allowed and the order passed by the court below is set aside. I.A.No.107 of 2005 shall stand allowed. The amendment shall take effect from the date of plaint. It is made clear that I have not expressed any opinion on the merits of the claim put forward by the petitioners. The findings and observations made herein above are only for the purpose of dealing with the application for amendment.
K.T.SANKARAN JUDGE csl