2010 Supreme(Bom) 187

IN THE HIGH COURT OF BOMBAY
Naresh H. Patil and N. A. Britto, JJ.
RAJASHRI alias RAJANI U. BHAKTA and others Appellants.
Versus
MARIAELSA DENORONHA WOLFANGO DASILVA since deceased through LRs. ANTONIO S. C. PERERIA and another Respondents.
F. A. No. 224 of 2009
decided on 5-2-2010.

Headnote:Civil Procedure Code, 1908 - Section 105, Order VI, Rule 17, Order VII, Rule 11(d) - Specific Relief Act, 1963, Sections 5, 6 and 34 - Rejection of plaint - Suit for declaration of title without prayer for permanent injunction - Trial Court not accepting plea for post suit amendment in plaint rejected plaint - Challenged - Held - Rejection of plaint under Order VII, Rule 11 amounts to a decree - Rejection of plaint on other grounds not amounts to a decree under Section 105 of Code - A typographical error of putting word "temporary" instead of ’permanent’ in application for amendment sought to be corrected - Plaintiff/Appellant entitled to an injunction and a declaration - Plaintiff filed application immediately on pointing out defect - Application wrongly rejected by Court - Impugned order set aside - Application for amendment granted - Suit restored to file of trial Court - Appeal allowed. - In Courts view, the case at hand, was a clear case where the plaintiffs had sought an amendment to correct a typographical or clerical mistake in mentioning the word "temporary" instead of the word "permanent" in prayer Clause (b). The plaintiffs, as already stated, had filed the suit styling the same as a suit for declaration and injunction Again, the plaintiffs had stated in para 22 that they were entitled to an injunction and declaration. Here, Court may observe that nobody files a suit for declaration and temporary injunction and as common knowledge goes suits are filed for declaration and permanent injunction. The plaintiffs had also valued tentatively the prayer for injunction at Rs. 1000/- and Court fee at Rs. 75/- was paid thereon. It may be true that there is no prohibition under the Court Fees Act to pay Court fees on temporary injunction as contended on behalf of the defendants but the fact remains that nobody pays fees when it is not required and fees are paid only when they are required. Going by the reverse order of the prayer clauses, it can be seen from prayer (d) that the plaintiffs had prayed for ad interim ex parte injunction in terms of prayer Clause (c) which again shows that interim relief was prayed in terms of prayer Clause (b), and, therefore there was no question of the plaintiffs praying for interim relief by way of prayer Clause (c) in case it was already prayed for in terms of prayer Clause (b). Interim means temporary. Nobody prays for temporary relief twice. In other words, the prayer Clause (b) was meant to be a prayer for permanent injunction and in terms thereof the plaintiffs had sought temporary injunction in terms of prayer Clause (c) and ad interim injunction in terms of prayer Clause (d). It was but an obvious or patent mistake, namely a clerical or typographical error in typing the word "temporary" in prayer Clause (b) instead of "permanent" and in such a situation the learned trial Court ought to have granted the prayer for amendment and in the light of that, rejected the application of the defendants, for rejection of the plaint. The learned trial Court committed a grave error invoking the principle of limitation in such a situation, when it was not applicable at all and what was sought to be corrected was a typographical or clerical mistake in typing a word.

       Considering the facts of the case and the submissions, made, in Courts view, this appeal deserves to succeed. Consequently the impugned order is hereby set aside and as a result the application for amendment is granted and that for rejection of the plaint is rejected and the suit is restored to the file of the trial Court, to proceed in accordance with law Cost by the defendants.

       Civil Procedure Code, 1908 - Order VII, Rule 1(b) read with Order XLI, Rule 3 - Deficiency of courtfees - Raising of objection - Stage thereof - Held -An appeal is a continuation of the suit - No issue of under-valuation was raised by the defendant before the trial Court nor a finding given by the trial Court on that aspect, even then the plaintiffs were bound to pay courtfees on the memorandum of appeal on the basis of the valuation done by them before the Court below - Defendants are always at liberty to raise such an issue if permissible in law before Court below cannot be allowed to be taken for the first time in appeal - Court of appeal would be entitled to reject the memorandum of appeal on any of the grounds mentioned in Order VII, Rule 11.