Back
JHARKHAND HIGH COURT
Rajesh Shankar, J.
Haider Ali —Petitioner
versus
Sayad Akbar Ali —Respondent
W.P.(C) No.3447 of 2019
Decided on 5.12.2019
For the Petitioner:Mr. Rohitashya Roy and Mr. Vibhor Mayank, Advocates
IMPORTANT POINT
Correction in cause title of plaint, judgment and decree—All necessary amendments shall
be made for the purpose of determining real question or issue raised by or depending on such proceeding.
Headnote:
Civil Procedure Code, 1908 – Section 153 and Order VI Rule 18 – Correction in cause title of plaint, judgment and decree – Judgment and decree were passed/prepared in name of a dead person – There were two plaintiffs in the case and one of plaintiffs died during pendency of suit and substitution application was filed on behalf of plaintiffs before original court which was allowed by original court with a direction to substitute heirs of deceased plaintiff in cause title of plaint, however said order was not complied by incorporating name of heirs in cause title of plaint due to which judgment and decree was prepared in name of a dead person – Appellate court having taken note of such error/omission in judgment/decree of trial court and while keeping appeal pending, remitted lower court record to original court with a direction to make necessary correction in plaint, judgment and decree – All necessary amendments shall be made for the purpose of determining real question or issue raised by or depending on such proceeding – Petitioner cannot be permitted to take recourse of Order VI Rule 18 of CPC in peculiar facts of present case – Writ petition dismissed. (Paras 7, 8 and 9)
Result: Writ petition dismissed.
ORDER
Rajesh Shankar, J.—The present writ petition has been filed for quashing the order dated 24.06.2019 (Annexure-8 to the writ petition) passed by the District Judge-II, Deoghar in Civil Appeal No. 32 of 2017 whereby the said appellate court sent the lower court record back to the original court for correction in cause title of the plaint, judgment and decree as the judgment and decree were passed/prepared in the name of a dead person. Further prayer has been made to direct the original court to proceed with the suit afresh.
2. Heard the learned counsel for the petitioner and perused the contents of the writ petition.
3. The petitioner being the defendant, aggrieved by the judgment dated 28.08.2017 and decree dated 08.09.2017 passed/prepared by the Civil Judge (Sr. Division)-IV, Deoghar in Title (Eviction) Suit No. 23 of 2009, preferred an appeal being Civil Appeal No. 32 of 2017 before the Principal District Judge, Deoghar. Learned District Judge-II, Deoghar while entertaining the said appeal, noticed that the name of plaintiff no. 1 was wrongly mentioned as Sayad Mehdi Hussain in the judgment and decree of the original court as he had already died during pendency of the said suit on 09.11.2011. It was also noticed by the appellate court that the original court vide order dated 18.05.2012 had allowed the substitution petition filed on behalf of the plaintiffs with a direction to substitute the heirs of late Sayad Mehdi Hussain in the cause title of the plaint, yet the same was not incorporated in the plaint and by mistake, the judgment and decree was prepared mentioning the name of plaintiff no. 1 as Sayad Mehdi Hussain. Accordingly, the learned appellate court sent back the lower court record to the original court for correction in the plaint, judgment and decree.
4. Learned counsel for the petitioner while relying on the provisions of Order VI Rule 18 of the Code of Civil Procedure (in short “CPC”) submits that if a party who has obtained an order for leave to amend does not amend accordingly within the time provided for the said purpose or if there is no time provided for the same by the court, the amendment is to be carried out within 14 days from the date of the order failing which the concerned party is not permitted to amend it subsequently and, therefore, the learned appellate court committed an error in remitting the lower court record back to the original court for suitable correction in the cause title of the plaint, judgment and decree. In support of his submission, learned counsel for the petitioner puts reliance on paragraph- 14 of the judgment rendered by the Hon’ble Supreme Court in the case of Gurnam Singh (dead) through legal representatives and Ors. Vs. Gurbahan Kaur (dead) by legal representatives reported in (2017) 13 SCC 414.
5. To appreciate the contention of the learned counsel for the petitioner, I have gone through the aforesaid judgment, the relevant paragraphs of which are quoted hereinbelow:-
“14. In a leading case of this Court in [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340], the learned Judge Venkatarama Ayyar, J. speaking for the Bench in his distinctive style of writing laid down the following principle of law being fundamental in nature: (AIR p. 342, para 6)
“6. … It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.”
15. The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons? In our considered op
