Patna High Court
Rajeshwari Singh And Anr. vs Lakhrajo Kunwar on 2 March, 1984
Equivalent citations: AIR1984PAT354, 1985(33)BLJR560, AIR 1984 PATNA 354, 1984 BBCJ 509 (1984) PAT LJR 442, (1984) PAT LJR 442
ORDER Satya Brata Sanyal, J.
1. Defendant judgment-debtors' petition is for setting aside an order passed by the 4th Additional Subordinate Judge, Sasaram, allowing an application for amendment of the plaint and the decree sought for by the plaintiff decree-holder.
2. The amendment sought for is for expunction of the name of plaintiff No. 2 from the plaint as well as from the decree and to substitute the name of the deceased-plaintiffs wife Jabdharo Kuer, both in the plaint as well as in the decree.
3. For the purpose of this petition facts in detail are not necessary. Suffice it to say that on 13-6-1981 during the pendency of the suit plaintiff No. 2 died. Within 30 days therefrom, i.e., 10-7-1981, a petition was filed in the suit itself to expunge the name of plaintiff No. 2 and to substitute the name of his wife Jabdharo Kuer. This substitution petition was supported by an affidavit. The order sheet No. 83 dt. 10-7-1981 of the trial Court noticed the filing of this petition as well as the prayer made. The last sentence of the order reads "Prarthana Patra Sanchalit Ho". It appears thereafter the Court did not pass any formal order and the matter remained dormant. The suit thereafter was disposed of followed by a decree. On 15-4-1983, defendants filed an application under Order 9, Rule 13 of the Civil P.C. for setting aside of the decree and while the said proceeding was pending an application for amendment was filed by the plaintiff decree-holder on 17-8-1983 seeking the relief of expunging the name of the deceased plaintiff, both from the plaint and the decree and in his place for the entry of the name of his wife. This is assailed by the defendants. The Court below after consideration of the respective cases of the parties allowed the prayer of the plaintiff by observing :
"So it was not the mistake and omission of the party rather it was mistake and omission of the Court who did not dispose of this petition before taking up the suit
4. The present unfortunate position is for the failure of the Court to do its part of the duty. A litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in discharge of their duties. As observed by Cairns, LC, in Rodger v. Comptoired Escompte de Paris (1871) 3 PC 465 at P 475, as early as 1871 "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors". The maxim Actus Curiae Neminem Gravabit (An act of the Court shall prejudice no one) "is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law." It may, therefore, be observed that any injustice done by procedure not intended by Court to employ must be remedied on principle that act of Court shall prejudice none.
5. In the instant case an application for substitution was duly made in accordance with law. The Court intended to pass an order on the said petition. It appears that inadvertently the formal order was not rendered on the said application. The result was continuance of the name of the deceased, both in the plaint as well as in the decree prepared. This is sought to be rectified by the plaintiff by invoking inherent jurisdiction of the Court in this regard. Question is whether this can be allowed in exercise of the Court's inherent power under Sections 151, 152 and 153 of the Civil P.C. or the plaintiff is required to ask for setting aside of the decree and seek permission to amend the plaint and have the case retried.
6. Learned counsel for the defendants-petitioners contends that the Court has acted wholly without jurisdiction in passing the impugned order. The Court had no jurisdiction to amend the decree by striking out the name of plaintiff No. 2 and further ordering substitution of the name of the wife of plaintiff No. 2. According to the learned counsel, so long as the plaint is not amended, the amendment in the decree is impermissible. He further contends that after the complete disposal of the suit resulting in a judgment and decree, the Court has no power to amend either the plaint or any proceeding of the suit in exercise of the powers conferred under Section 153 of the Civil P.C. Relying upon the case of Hamiduddin v. Moyezuddin, AIR 1946 Cal 336, he argues that the only prayer the decree-holder could reasonably make under Section 151 C.P.C. is to ask for setting aside of the decree and seek permission to 'amend the plaint and the case re-tried. He has also referred to a decision of this Court in the case of Ranbir v. Parvati Devi reported in AIR 1969 Pat 336 as to the scope of Section 152 of the C.P.C. i.e. mistake arising from any accidental slip or omission.
7. Learned counsel for the plaintiff-opposite party submits that the plaintiff is a victim of an unintended act of Court. Plaintiff shall have to suffer great prejudice and injury if it is held that the decree cannot be amended unless suitable amendment is made in the plaint. If the Court takes the view that the plaint cannot be permitted to be amended at this stage after the disposal of the suit under any of the powers conferred under the Civil P.C. the result would be a re-trial of the suit.
8. It is manifest if the plaintiff's prayer for amendment sought in the Court below allowed by the impugned order is set aside, the plaintiff will be made to suffer grave injustice. This will defeat the ends of justice and perpetrate an abuse of the process of the Court. Expunction and substitution only needed a formal order. The prayer for substitution in the suit was not contested by the defendants. The Court noticed the prayer for expunction and substitution of the name of the wife of plaintiff No. 2 in its order No. 83 dt. 10-7-1981.
In my opinion, merely because the Court did not record a formal order and directed "Prarthana Patra Sanchalit Ho" the plaintiff could not be made to suffer this ordeal. The Court took cognizance of the substitution petition. It was uncontested. I fail to understand why it cannot be held to be an order allowing the prayer of the plaintiff. In the words of Lord Denning in his book, the closing Chapter, "to secure as near as may be, the doing of justice". Once I take that view, then in not penning through the name of plaintiff No. 2 in the plaint and inserting the name of his wife is purely a clerical error on the part of the office of the Court. The office while preparing the decree allowed the clerical error to continue. The provisions of Sections 151, 152 and 153 of the C.P.C. are in wide terms conferring power upon Court to minimise litigation and avoid multiplicity of proceedings and further to see that the technicalities may not be allowed to stand in the way of substantial justice. Further the Court is invested with the inherent power under Section 151 of the C.P.C. This "power has its roots in necessity and its breadth is coextensive with the necessity", as per Krishna Aiyer, J, in the case of The Newabganj Sugar Mills Co. Ltd. v. Union of India (AIR 1976 SC 1152), This, in my opinion, only means that this power is more for the necessity of the Court to be resorted, to achieve the ends of justice and to prevent abuse of the process of the Court in a given circumstance. The instant case, in my opinion, presents a situation where the Court is called upon to act for the ends of justice.
9. Hamiduddin's case (AIR 1946 Cal 336) (supra) relates to an act of a party to the litigation who committed error in describing the disputed property in the plaint and in the schedule of the plaint. The Court held that the application of Section 152 C.P.C. for correction of the decree was entirely misconceived, the mistake being in the plaint, it was not possible for the plaintiff to ask for the correction of the judgment and decree without amending the plaint and thereby re-opening the defence. It was in that context further observed that the remedy of the plaintiff was to ask for setting aside the decree and seek permission to amend the plaint and have the case re-tried. This case, however, was distinguished by this Court in the case of Anupa Kuer v. Yogendra, AIR 1954 Pat 108 and applying the principle of Section 152 this Court held that "there being no ambiguity as to the identity of the subject matter of the suit, the Court should have exercised its jurisdiction and ought to have amended the decree, and in not doing so, has failed to exercise its jurisdiction." The case in hand stands on a much higher pedestal. This is a case where the plaintiff is not at fault. I have already held that substitution, would be deemed to have been allowed in the suit, the decree drawn up is therefore viced by a clerical error, when can always be corrected under Section 152 C.P.C. Ranbir Prasad's case (AIR 1969 Pat 336) (supra) similarly has no application to the facts of this case. That was a case-where the default lay squarely on the plaintiff not to act in time. I am, therefore, of the opinion that the Court below in exercising its discretion has not acted illegally and/or exceeded in its jurisdiction.
10. It further appears that plaintiff Nos. 1 and 2 were substituted as wife and brother of the sole original deceased plaintiff. The estate of the sole original plaintiff was fully represented by his wife. On the death of the substituted plaintiff No. 2 (brother of the sole plaintiff), wife of the latter sought substitution by filing a petition on affidavit.
11. Further, this application is under Section 115 of the Civil P.C. I do not think it to be a fit case where this Court should interfere with the order passed by the Court below, which is in consonance with justice.
12. In the result, the revision petition is dismissed but there would be no order as to costs.