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Sri Samarendra Prasad Bhowmick & Anr vs Sri Shyamalendra Prasad Bhowmick & Ors on 13 January, 2011
cites
Section 151 in The Code of Civil Procedure, 1908 [Entire Act]
The Code of Civil Procedure, 1908
Niyamat Ali Molla vs Sonargon Housing Co-Operative Society ... on 12 October, 2007
In view of the above decisions of Samarendra Nath Sinha
(supra) and the decision of Niyamat Ali Molla (supra) I am of the
view that both the parties knew well what the suit premises was
and that they proceeded with the suit accordingly. The defendants
were not prejudiced in any way because the old premises number has
been described in the suit and also in the preliminary decree
drawn up by the Court. The proposed amendment is nothing but
rectification of clerical errors arising from any accidental slip
and such type of clerical error should be rectified otherwise, the
preliminary decree may not be properly described with reference to
the suit premises. It is not desirable to hold that for such
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wrong description in one part of the decree, the decree has become
infructuous and for that reason, this decree should be treated as
nullity and the plaintiff is required to file another suit for
partition by inserting a correct premises number.
Sebi vs Arihant Exim Scrip Pvt. Ltd. And Doe ... on 19 January, 2005
d) Lastly, Mr. Bhattacharya has referred to the decision of
Securities and Exchange Board of India v. Arihant Cotsyn
Ltd. & ors. reported in (2005) 13 SCC 498 over the
exercise of revisional jurisdiction of this Court.
After due consideration of the above submissions of the
learned Advocates of both the sides and on perusal of the
materials on record, I find that mistake did not occur on the part
of the Court at all, but it was a mistake on the part of the
plaintiffs. At the time of filing of the amended plaint instead
of describing the premises no. 38/1A/H-58, it was wrongly recorded
as 38/1A/H-56, that is, the last figure had been changed from 58
to 56. In this context, it may be numbered that the instant suit
is a suit for partition and so, it is expected that each party
must be interested to have his share separated from the others.
While describing the suit property, the old premises no., that is,
formerly known as 38/1A/47 had been described everywhere and even
the preliminary decree passed, lays down the former premises
number as 38/1A/47. There is no dispute about it that the
premises in suit was formerly known as 38/1A/47, Manicktola Main
Road and the decree was drawn up accordingly. At the time of
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describing, the cause title, the address of the parties to the
suit have been recorded as 38/1A/H-58 (formerly known as 38/1A/47)
Manicktola Main Road, Calcutta - 700054. Thus, I find that both
the parties to the suit knew very well which premises was the suit
premises and the parties fought legal battle accordingly for a
long time. But, at the time of filing the amended plaint, the
last figure of the premises number had been changed from 58 to 56.
This is, I hold, nothing but a clerical or typographical mistake
and for such mistake the defendants have not been prejudiced at
all because they were quite aware what the suit premises was and
where they were residing. In such a situation, it can well be
presumed that the parties proceeded with the suit as if the suit
premises is of 38/1A/H-58 (formerly known as 38/1A/47).
Union Of India And Others vs Ex-Subedar Naurang Ram Bugalia on 1 June, 2001
b) Mr. Bhattacharya has next referred to the decision of
Union Bank of India v. Naurang & ors. reported in (2009)
16 SCC 352 particularly the paragraph no.5 and thus, he
submits that when there was a typographical mistake on
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the part of the Court and the Court when admitted such
fact and corrected, the High Court was not proper to
intervene. With due respect to Mr. Bhattacharya, I am of
the view that this decision will not be applicable in the
instant case because the circumstances are quite
different.
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