Back
2009 Supreme(Cal) 309
HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, J.
Tapas Guha - Appellant
Versus
Angurbala Das - Respondent
C.O.No. 2837 of 2007
Decided on : Apr 17,2009
Amitava Bhattacharya, Guru Saday De, J.L.Dey, Ranjan Bachawat, S.P.Roychowdhury, Sakya Sen, Subhasis Sengupta, Tapas Kr.Mondal,
The court's power to amend the schedule of the suit property in the plaint and make consequential amendments in the decree under Sections 151 and 152 of the Code of Civil Procedure can be exercised when the defendants are not misled, one property is not substituted by another, and there is no intentional omission on the part of the plaintiff in describing the suit property incorrectly.
Headnote:
CIVIL PROCEDURE - Amendment of Plaint and Correction of Decree - Misdescription of Suit Property - Bona Fide Mistake - Power of Court - Sections 151 and 152 of the Code of Civil Procedure.
Fact of the Case:
Plaintiff filed a suit for eviction against the defendants from the suit property on the ground of reasonable requirement under the West Bengal Premises Tenancy Act, 1956. The defendants contested the suit but did not challenge the plaintiff's title or the existence of a landlord-tenant relationship. The suit was decreed on contest and affirmed in appeal. The defendants failed to deliver vacant possession, leading to execution proceedings. The writ of possession could not be executed due to a discrepancy between the decree and the boundaries of the suit property. The defendants filed an application under Section 47 of the Civil Procedure Code, alleging that the decree was not identifiable with the property where execution was sought. The plaintiff filed applications under Order 6 Rule 17 and Sections 151 and 152 of the Civil Procedure Code, seeking to amend the schedule of the plaint and correct the decree to rectify the misdescription of the eastern and western boundaries.
Finding of the Court:
The court held that the plaintiff's prayer for amendment of the plaint and correction of the decree could be allowed as the misdescription of the suit property was due to a bona fide mistake and not an intentional omission. The court relied on the fact that the defendants were aware of the identity of the suit property and the extent of their tenancy, as they had identified the property to the Advocate Commissioner during the local inspection. The court also noted that the plaintiff had applied for the amendment and correction promptly upon discovering the mistake, which further supported the absence of any intentional omission.
Issues: 1. Whether the court has the power to amend the schedule of the suit property in the plaint and make consequential amendments in the decree after the disposal of the suit. 2. Under what circumstances can such power be exercised by the court.
Ratio Decidendi: 1. The court's power to amend the schedule of the suit property in the plaint and make consequential amendments in the decree is well recognized by the Supreme Court and the Calcutta High Court under Sections 151 and 152 of the Code of Civil Procedure. 2. Such power can be exercised when: - The defendants are not misled by the correction. - One property is not substituted by another. - There is no intentional omission on the part of the plaintiff in describing the suit property incorrectly.
Final Decision: The revisional application filed by the defendants was rejected. The court upheld the impugned order allowing the plaintiff's applications for amendment of the plaint and correction of the decree.
1. THE plaintiff/opposite party (decree holder) filed a suit for eviction against the defendants/petitioners (judgment-debtor) from the suit property on various grounds under the West Bengal Premises Tenancy Act, 1956 including the ground of reasonable requirement of the plaintiff/opposite party. In the schedule of the plaint the suit property was described as follows:-
"all that two rooms and privy at the first floor and three rooms at the second floor and one kitchen and bathroom at the ground floor at Premises No. 27d, Harikati Bagan Lane now known as dr. Dhiren Sen Sarani, Kolkata - 700006. P. S. Burtolla. On the North : 25a, Harikati Bagan Lane, Kolkata-700006. On the South : Common passage. On the East : 27d, Harikati Bagan Lane, Kolkata-700006. On the West : 28d, Harikati Bagan Lane, Kolkata-700006. "
2. THE defendants contested the said suit by filing written statement denying the allegations made out by the plaintiff in his plaint. Though the defendants did not challenge the plaintiff's title in the suit property and/or the existence of relationship of the landlord and tenant between the parties in respect of the suit property but, still then, they alleged that the suit property has not been correctly defined in the schedule of the plaint. Though they claimed that the suit property has not been correctly defined in the schedule of the plaint but, still then, neither they specified the error in such description nor they disclosed the correct description, of their tenancy in their written statement. Since no dispute with regard to identity of suit property was raised specifically in details, no issue was framed on the said dispute in the suit.
3. SINCE the said suit was filed on the ground of reasonable requirement of the plaintiff, an inspection was held at the suit premises for ascertaining the respective accommodation available to the parties in the premises where both the plaintiff and the defendants reside in their respective accommodation. In fact, the suit premises was identified to the learned Advocate Commissioner by both the parties at the time of holding such local inspection and both the parties duly represented themselves before the learned Advocate Commissioner at the time of holding such local inspection. The learned Advocate Commissioner held local inspection at the said premises and submitted his report with regard to the accommodation available to the respective parties in the said premises.
4. THE suit was ultimately decreed on contest. The said decree was affirmed in appeal, by the learned First Appellate Court which again was subsequently affirmed by the Hon'ble Court in Second Appeal. Since the defendants/petitioners (judgment-debtor) failed to deliver the vacant and khas possession of the suit premises to the plaintiff/opposite party (decree holder) in terms of the said eviction decree, the plaintiff/ opposite party (decree holder) put the said decree into execution for recovery of khas possession from the defendants/petitioners (judgment-debtor ). (14)
5. THE writ of possession which was issued in the said execution proceeding could not be executed by the Bailiff as he found that the description of the suit property as mentioned in the decree did not tally with the boundaries of the suit property at the site.
6. THE defendants/petitioners (judgment-debtor) filed an application under Section 47 of the Civil Procedure Code challenging the executability of the said decree by alleging that the decreetal property as mentioned in the decree is not identifiable with the property where execution was sought to be made, as the boundaries of the suit property given in the plaint and/ or in the decree does not tally with the boundaries of the property where execution was sought to be made. The petitioners alleged therein that the eastern and western boundary of the suit property have not been correctly described in the schedule of the plaint. The defendants/petitioners for the first time disclosed in th
