Ramchandra Ram vs Shailendra Kumar @ Abhay Kumar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Jhk) 375

IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH SHANKAR, J.
Ramchandra Ram – Petitioner
Versus
Shailendra Kumar @ Abhay Kumar – Respondent
C.M.P. No. 58 of 2020
Decided On : 10-09-2021

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Amar Kumar Sinha.
For the Respondent: Mr. Rahul Kumar Gupta.

Headnote:
Civil Procedure Code,1908 - Sections 151, 152 and 153 - Order VI Rule 17 - Saving inherent power of court - Amendment of pleading - Present civil miscellaneous petition has been filed for quashing the orders dated 19th September, 2018 and 13th November, 2019 passed by the learned Civil Judge in Execution Case, whereby petition filed by decree holder/petitioner under Order VI Rule 17 read with Sections 151, 152 and 153 of CPC has been rejected - the present civil miscellaneous petition is that petitioner and one respondent filed Title Suit against defendant/respondent in court of learned Civil Judge praying inter-alia for declaration of their title and possession with respect to suit land as described in of plaint and for grant of permanent injunction against defendant/respondent restraining him from going over suit land - learned court below disposed of said suit in terms with Judgment decree was signed Thereafter, decree holder/petitioner filed Execution Case before learned court below - In said execution case, \petitioner filed a petition under Order VI Rule 17 read with Sections 151 and 152 of CPC seeking amendment in plaint and for corresponding amendment in judgment and decree of Title Suit with regard to area of suit property stating inter-alia that due to mistake, area of land was wrongly mentioned as instead of decimals although specific boundary was given in land described in plaint – Held, Ratio laid down in case of orders and passed by learned Civil Judge in Execution Case are, hereby, quashed. - Petitioner shall be permitted by learned court below to amend area of decimals in plaint and, accordingly, appropriate amendment will be carried out in judgment and decree by order of said court – Court Find that learned court below has committed error in not allowing petitioner to correct such typographical mistake which is necessary for effective execution of decree -Hon’ble Supreme Court has held that clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from any accidental slip or omission may be corrected at any time by the court in exercise of the power conferred under Section 152 CPC either of its own motion or on application of any of parties, so as to dispense effective justice - Court to registered sale-deed and deposition of plaintiff-witness of Title Suit series to supplementary affidavit filed on behalf of petitioner - On perusal of sale-deed of suit property, it appears that area of land has been mentioned as ‘8’ decimals as also stated in his deposition recorded at that area of land is ‘8’ decimals and said fact was not contradicted in cross-examination. Thus, it appears that the evidence to the effect that the area of the land is ‘8’ decimals was already available on record and only due to inadvertent/ typographical mistake, same was mentioned as ‘0.08’ decimal in plaint due to which said mistake continued to occur in judgment and decree as well - Civil miscellaneous Petition allowed.

JUDGMENT :

RAJESH SHANKAR, J.

1. The present civil miscellaneous petition is taken up today through Video Conferencing.

2. The present civil miscellaneous petition has been filed for quashing the orders dated 19th September, 2018 and 13th November, 2019 passed by the learned Civil Judge (Junior Division)-II (Munsif), Koderma in Execution Case No. 04 of 2013, whereby the petition filed by the decree holder/petitioner under Order VI Rule 17 read with Sections 151, 152 and 153 of CPC has been rejected.

3. The factual background of the case as stated in the present civil miscellaneous petition is that the plaintiff/petitioner and one Mira Devi the respondent no. 2 filed Title Suit No. 41 of 2010 against the defendant/respondent no. 1 in the court of learned Civil Judge (Junior Division)-II (Munsif), Koderma praying inter-alia for declaration of their title and possession with respect to the suit land as described in ‘Schedule-A’ of the plaint and for grant of permanent injunction against the defendant/respondent no. 1 restraining him from going over the suit land. The learned court below disposed of the said suit in terms with the Judgment dated 12th March, 2013 (the decree was signed on 18th March, 2013). Thereafter, the decree holder/petitioner filed Execution Case No. 04 of 2013 before the learned court below. In the said execution case, the petitioner filed a petition under Order VI Rule 17 read with Sections 151 and 152 of CPC seeking amendment in ‘Schedule A’ of the plaint and for corresponding amendment in the judgment and decree of Title Suit No. 41 of 2010 with regard to area of the suit property stating inter-alia that due to mistake, the area of the land was wrongly mentioned as ‘0.08’ decimal instead of ‘8’ decimals although specific boundary was given in the land described in Schedule ‘A’ of the plaint. The executing court, however, vide order dated 19th September, 2018, rejected the said petition filed by the decree holder/petitioner seeking amendment in Schedule ‘A’ of the plaint as well as in the judgment and decree. The decree holder/petitioner thereafter filed a separate petition under Order VI Rule 17 read with Sections 151, 152 and 153 of CPC seeking amendment/rectification in Schedule ‘A’ of the plaint, judgment and decree of Title Suit No. 41 of 2010 with regard to area of the suit property stating that due to some typographical error, the area of the land was wrongly mentioned as ‘0.08’ decimals instead of ‘8’ decimals in the plaint, judgment and decree of Title Suit No. 41 of 2010. The learned court below vide order dated 13th November, 2019 also rejected the said petition filed by the decree holder/petitioner.

4. The learned counsel for the petitioner submits that during pendency of the execution case, it was pointed out that due to typographical mistake, the area of the suit land was wrongly mentioned as ‘0.08’ decimal instead of ‘8’ decimals in the plaint, judgment and decree of Title Suit No. 41 of 2010 and as such, a petition for correcting the said mistake was filed before the learned court below, however, it refused to exercise the power vested in it. It is further submitted that sufficient evidence was already available on record so as to disclose that the area of the suit property is ‘8’ decimals. As such, the learned court below ought to have allowed the petition filed by the petitioner for making necessary correction in the plaint and for corresponding corrections to be made in the judgment and decree. It is also submitted that the decree holder/petitioner cannot be deprived of getting the actual fruits of the decree due to some typographical error. It is a settled law that the Court has the power to verify the identity of the suit property taking assistance from the description of the land and as such, the learned court below committed an error in rejecting the prayer of the decree holder/petitioner seeking amendment of the plaint and corresponding amendment in the judgment and decree with regard to

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