Madras High Court
Mrs. Kasturi Gandhi And J. Gopala ... vs B. Shanmugaraja And S. Regupathy on 22 April, 2004
Equivalent citations: (2004)2MLJ677
ORDER S. Sardar Zackria Hussain, J.
1. The revision petitioners are the plaintiffs in O.S. No. 124 of 2000 on the file of the Principal District Munsif Court, Sivaganga. The revision is filed against the dismissal of the amendment petition I.A. No. 43 of 2002 filed under Order 6 Rule 17 and Section 151 C.P.C.
2. The plaintiffs filed the suit O.S. No. 124 of 2000 for declaration and possession of the plaint 'A' schedule property, for mandatory injunction to demolish the superstructure as described in the 'B' schedule property, for permanent injunction restraining the defendants from draining rain water and sewage nearby WW1, W1, W2, W3 walls of the house of the plaintiffs as described in the 'C' schedule property and for damages of Rs. 2,000/- for the damaged wall. The plaint 'B' schedule property is described thus:-
"In Sivaganga District, Sivaganga Town Vallabai Patel Street, the superstructures and tiled building put up by the defendants in the 'A' Schedule property and ad-measuring- feet in east west and feet in north south (described as EFGH in rough sketch) . . ."
The suit was contested by filing written statement and it was dismissed. The plaintiffs preferred appeal in the District Court, Sivaganga and the appeal papers were returned that measurements have not been shown in respect of plaint 'B' schedule property.
3. Therefore, to correct such typographical error, the plaintiffs filed I.A. No. 43 of 2002 in the District Munsif Court, Sivaganga to amend the plaint 'B' schedule property by adding "4" before the words "feet in east west and" and by adding "10" before the words "feet in north south".
4. Though the respondents/defendants have not filed counter and remained ex parte, the trial Court dismissed the petition that since no proceeding is pending before that Court to amend or alter the pleadings to decide the matter in controversy between the parties, in that the suit was already disposed. The order is challenged in this Civil Revision.
5. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents.
6. The learned counsel for the revision petitioners/plaintiffs argued that though the suit was filed describing the 'B' schedule property correctly, due to typographical error, the measurement was not mentioned in number and the appeal filed against the dismissal of the suit has not been numbered and has been returned. Hence the amendment petition I.A. No. 43 of 2002 has been filed to amend the 'B' schedule property by mentioning the measurement in number. In this regard, the learned counsel for the revision petitioners pointed out that though the suit was dismissed, inasmuch as only measurement in number alone is to be mentioned in the plaint 'B' schedule property, such amendment being due to clerical error in typing the plaint, the said amendment can be ordered even after disposal of the suit. In support of such view, the learned counsel for the revision petitioners/plaintiffs also placed the following decisions:-
(1) U. Latchayya - vs. - G. Seethamma and others reported in A.I.R. 1932 Madras 275, in which a Division Bench of this Court has observed:-
"Where a suit is for a rectification of a mortgage and also of the decree based on it, the fact that the relief for the rectification of the decree, which cannot be granted has been asked for is no ground for dismissing the suit altogether. In such case plaintiff can obtain a decree for rectification of the mortgage and after obtaining such a decree, he can apply for amendment of the plaint in the previous suit and for a review of the decree on the ground that there was an error patent on the face of the record as it would be patent after the amendment of the plaint. He may also without applying for review, ask for amendment of the decree in the previous suit under Section 152 Civil Procedure Code."
(2) Somireddi Burrayya and others - vs. - Somireddi Atchayyamma reported in A.I.R. 1956 Andhra Pradesh 26, in which a Division Bench of the Andhra Pradesh High Court held:-
"That apart the language of Section 153 is in wide terms and confers powers on a Court to correct errors in any proceeding at any stage in order to determine the real question. These two provisions are meant to enable the Court to decide the points in issue and to render justice to the parties. Whether an amendment is to be allowed in a particular case or not, is to be decided by Court, having regard to the facts and circumstances of that case. These two provisions of law therefore invest the Court with jurisdiction to allow an amendment even after the preliminary decree is passed."
(3) Minor Murugan, etc., - vs. - Thirupathi Gounder and others reported in 2002-3 Law Weekly 54, in which this Court has held:-
"In the circumstances, this Court directs that it is open to the plaintiff to apply for amendment of the plaint schedule as well as for the inclusion of other admitted items as pointed out by the defendants by filing necessary application before the court below and the court below shall, after examining, even pending the final decree proceedings, consider the plaintiffs claim in this respect for addition of these items which have not been included in the plaint schedule. Though this direction is extraordinary, to render substantial justice, this Court is issuing such a direction."
7. The learned counsel for the respondents/defendants has not advanced argument.
8. It is seen from the original plaint in O.S.No.124 of 2000 that the plaint 'B' schedule property was described by omitting to mention the measurement in number before the words 'feet in east west' and before the words 'feet in north south'. Therefore, it is clear that mistake has occurred in describing 'B' schedule property by omitting to mention the measurement, which could have been due to error in typing the plaint. The trial Court did not return to rectify the plaint in respect of the plaint 'B' schedule property by saying the exact measurement omitted to be mentioned in original plant. The trial Court proceeded and ultimately dismissed the suit. Therefore considering these facts and inasmuch as the appeal preferred by the plaintiffs has been returned by the District Court, Sivaganga on that aspect, the plaintiffs have rightly filed the amendment petition I.A. No. 43 of 2002 to amend the plaint 'B' schedule property by mentioning the measurement as stated above. In view of such amendment no new case is set up and also such amendment does not change the character of the suit. The trial Court only under the impression that no proceeding is pending before it after the disposal of the suit, the amendment sought for cannot be ordered. Such a view appears to be incorrect. The amendment being necessary and without which, the appeal preferred against the dismissal of the suit cannot be dealt with, it would be just and proper that amendment as sought for is to be allowed so as to render substantial justice to the parties. Further no hardship will be caused to the respondents/defendants in allowing such amendment. Therefore, the order of the trial Court is to be set aside.
9. In the result, this Civil Revision Petition is allowed setting aside the order dated 15.3.2002 made in the amendment petition I.A. No. 43 of 2002 filed before the trial Court. The amendment petition I.A. No. l43 of 2002 is allowed. The trial Court is directed to permit the plaintiffs for carrying out such amendment and consequently to amend the decree if memo is filed to that effect. No cost.