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Bharmal Tilokchand Vs. Bai Vishnabai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 92 of 1932
Judge
Reported inAIR1933Bom200; (1933)35BOMLR365
AppellantBharmal Tilokchand
RespondentBai Vishnabai
Excerpt:
.....procedure code, 1908. - - a long inquiry was held in the course of which the applicant's son, choitram bharmal, was examined as well as tulsidas karani and several other witnesses, and the court amended its decree to the extent of directing that 'the name therefore of the respondent will be brought on record as defendant in the following manner :bharmal tilockchand alias choitram bharmal as is done in such cases and which ought to have been done when the decree was passed. 2. although we have heard the learned counsel for the applicant at considerable length and gone through a good deal of the record, the only point which seems to arise, in our opinion, is whether the court had power to make this alteration in the record. the finding being one that he was the proper person against..........of letting. the suit was not defended and a decree ex parte was passed against the defendant then named choitram bharmal. what had happened was that when the summons was issued on the defendant in the suit, 'choitram bharmal', the bailiff, accompanied by the rent collector, went to the residence of tulsidas karani, where the defendant was said to be residing, and the summons was tendered to the present applicant, whose name is bharmal tilockchand and whose son is choitram bharmal. the rent collector identified bharmal tilockchand as the defaulting tenant, but service was refused on the ground that he was not the person named in the summons. subsequently a decree was passed against the defendant who had been identified as choitram bharmal and in due course execution was issued against.....
Judgment:

Murphy, J.

1. This revision application comes to us in the following manner. The plaintiffs in a Small Causes Court suit alleged that a person originally called Choitram Bharmal had hired a flat belonging to them at a rent of Rs. 60. They sued for Rs. 120 as due under the contract of letting. The suit was not defended and a decree ex parte was passed against the defendant then named Choitram Bharmal. What had happened was that when the summons was issued on the defendant in the suit, 'Choitram Bharmal', the bailiff, accompanied by the rent collector, went to the residence of Tulsidas Karani, where the defendant was said to be residing, and the summons was tendered to the present applicant, whose name is Bharmal Tilockchand and whose son is Choitram Bharmal. The rent collector identified Bharmal Tilockchand as the defaulting tenant, but service was refused on the ground that he was not the person named in the summons. Subsequently a decree was passed against the defendant who had been identified as Choitram Bharmal and in due course execution was issued against him. He was arrested under the decree, but ultimately released, and in the end the decree-holders applied to the Court to have the decree altered. A long inquiry was held in the course of which the applicant's son, Choitram Bharmal, was examined as well as Tulsidas Karani and several other witnesses, and the Court amended its decree to the extent of directing that 'the name therefore of the respondent will be brought on record as defendant in the following manner : Bharmal Tilockchand alias Choitram Bharmal as is done in such cases and which ought to have been done when the decree was passed. Notice absolute and execution to issue. Rs. 30 as costs to plaintiffs.' This is the order which was confirmed on appeal by the full Court and which is now challenged in revision by the present applicant.

2. Although we have heard the learned counsel for the applicant at Considerable length and gone through a good deal of the record, the only point which seems to arise, in our opinion, is whether the Court had power to make this alteration in the record. The findings of fact are that the applicant did actually go and rent this flat in the name of his son Choitram Bharmal, that he on occasions paid the rent, so far as it was paid, and that he was the real defendant in the Small Causes Court suit. Mr. Gokhale for the applicant has argued that the Court had no jurisdiction to make this alteration in its decree, and for various reasons In the first place, he said that the plaintiffs in the case had knowledge of the real name of the defendant they meant to sue, since Tulsidas Karani had sent a letter to the Court stating that the summons which was pasted to the door of his residence in Gani Building, New Sydenham Road, was to his knowledge a misdirection as the defendant had not resided in the building. The defendant had gone to his native place, and after his departure the defendant's father Bharmal Tilockchand had been staying with him since about a month and that he had informed the bailiff of this fact but to no purpose. It is stated that on receipt of this letter by the Registrar it was read out in Court and the plaintiffs should there and then have amended their record and that owing to their laches they cannot be allowed to do it at a late stage. We do not think there is any great force in this argument. The letter was sent by Mr. Tulsidas Karani in his private capacity, and obviously the plaintiffs were not bound to take any notice of it,

3. It has also been argued that under Order XX, Rule 3, no judgment, once signed, can be altered and reliance is placed on the case of Harihar Prasad Narain Deo v. Maheswari Prasad Narain Deo I.L.R. (1924) Pat. 654 another judgment in Debendra Narain Sinha v. Narendra Narain Sinha (1919) 24 C.W.N. 110 and the case of Hasan Shah v. Sheo Prasad I.L.R. (1893) All. 121 In the Patna case the question was an alteration made in the decision as to Court fees, and in the Allahabad case an order as to interest had been added after the judgment had been delivered. But we do not think that these cases are really pertinent to the one we have now to decide. In an earlier case of the Bombay High Court, Vakatchand Lakhmichand v. Advocate General et al (1871) 8 B.H.C.R. 96 it was hold that in similar circumstances the Court had power on the then existing enactments, which seem to have been in fact narrower than Order I, r. 12, to make an alteration similar to the one which has been made here. This alteration seems to us really to be no more than one of the defendant's description. The plaintiffs' case was that the then defendant had misdescribed himself by his son's name, and that he was taking advantage of this misdescription to evade his liability under the decree. All they really asked was to add to the description of the defendant such particulars as would make it clear that the present applicant was the person against whom the decree had been passed, and the findings of the Court were, that the present applicant was in fact the person against whom the decree had been asked for and obtained. It is also true that a judgment once delivered may not be altered by the Court which passed it, but this being a Small Causes Court suit, there was in fact no judgment, the order merely being one of what is called a verdict for the plaintiffs ex parte. Order I, Rule 10, provides in Sub-rule (2) that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. The language of this rule 'at any stage of the proceedings' seems to us wide enough to cover what has been done in this case. But even if this is not so, we think that Section 151 of the Code confers sufficient powers on the Court to enable it to do what it actually did. On the findings of the Small Causes Court, the suit had been brought against the proper person, who was misdescribed owing to his own action in giving his son's name instead of his own when he rented the premises, and who had since been refusing to receive the summons on the ground that he was not the proper person. The finding being one that he was the proper person against whom the decree had been rightly made it was necessary for the ends of justice and to prevent abuse of the process of the Court to correct the record, and this being so, we think the correction was rightly made and the Small Causes Court was well within its powers in ordering it to be done.

4. We discharge the rule with costs.


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