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Vasant Laxman Deshmukh Vs. Sakharam Limbaji Jadhav - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 3069 of 1980 (Aurangabad)
Judge
Reported in(1982)84BOMLR369
AppellantVasant Laxman Deshmukh
RespondentSakharam Limbaji Jadhav
DispositionPetition dismissed
Excerpt:
.....of property but anterior mistake as to situation of well and certain trees in plaint, judgment and decree--application for amendment of plaint, judgment and decree at stage of execution.;where the parties to the suit were definite about the disputed property and there is no dispute as to the identity of the property between the parties and some mistake is committed in the description of the property and the parties litigate in the court knowing that the dispute is in respect of a definite, undisputed identity of the property, in such a case, it cannot be said that it is an amendment of the pleadings of the parties, but is only a clerical mistake in describing the said property and such a mutual mistake between the parties could be corrected while exercising the powers under sections 152..........1968 for specific performance of the said contract against laxman deshmukh and his sons. the said suit was decreed on january 30, 1971 in favour of plaintiff. in pursuance of the decree, the decree-holder filed a darkhast bearing darkhast no. 11 of 1973 on march 9, 1973. a draft sale deed was prepared on july 10, 1973 and a copy thereof was sent to the judgment-debtors for approval. the draft sale deed was objected by the judgment-debtors mainly on two grounds: (1) that (the description of the property is not correct, and (2) the location of the mango trees was not properly shown- it was contended that the well is shown in the decree, to be in survey no. 40, but, there is no well in the said survey number and it is in survey no. 39. the correct position in respect of the mango trees is.....
Judgment:

Kanade, J.

1. An interesting question has been raised in this writ petition as to whether a plaint or a decree can be amended when an appeal against the original decree has become final. The said point arises out of the following facts.

2. There was an agreement between one Laxman Deshmukh and his sons and Sakharam Limbaji Jadhav in respect of sale of lands Survey Nos. 39, 40 and 41 situated at village Salimba in Manjlegaon Taluka of Beed District. The total area of these three lands is 10 acres 26 gunthas. The price agreed between the parties was at Rs. 8,000. On the date of the agreement of sale, an amount of Rs. 7,900 was paid by way of earnest money and Rs- 100 were to be paid at the time of the sale deed. The owner of the land fell out of the agreement and, therefore, Sakharam Limbaji Jadhav had to file Civil Suit No. 45 of 1968 for specific performance of the said contract against Laxman Deshmukh and his sons. The said suit was decreed on January 30, 1971 in favour of plaintiff. In pursuance of the decree, the decree-holder filed a Darkhast bearing Darkhast No. 11 of 1973 on March 9, 1973. A draft sale deed was prepared on July 10, 1973 and a copy thereof was sent to the judgment-debtors for approval. The draft sale deed was objected by the judgment-debtors mainly on two grounds: (1) that (the description of the property is not correct, and (2) the location of the mango trees was not properly shown- It was contended that the well is shown in the decree, to be in Survey No. 40, but, there is no well in the said survey number and it is in Survey No. 39. The correct position in respect of the mango trees is that one of them is in Survey No. 39 and remaining five are in Survey No. 41. The decree passed in favour of the plaintiff showed that the said trees are in Survey No- 40. By an application dated May 4, 1974, the decree-holder prayed for an amendment to the draft sale deed. The said application was allowed by the Executing Court. The judgment-debtors, feeling aggrieved by the said order, preferred an appeal bearing Appeal No. 137 of 1975. The said appeal was allowed by judgment and order dated November 15, 1976 and the case was remanded for further inquiry. It further appears that Laxman, Judgment-debtor No. 1, died on April 14, 1977 and no application for bringing his heirs and legal representatives on record was filed during the pendency of the execution petition- Accordingly, the said Darkhast was closed on September 12, 1977. It is thereafter, on November 18, 1977, the decree-holder filed another application for amendment to the plaint in Civil Suit No. 45 of 1968 and consequently prayed for amendment of the judgment and decree. This application was made under Sections 151, 152, 153 read with Order VI, Rule 17 of the Code of Civil Procedure and it was, inter alia, contended therein that the description of the property in respect of the well and the standing mango trees have not been properly shown either in the agreement of sale or in the plaint or the decree passed by the Civil Court.

3. In the said application, besides the two original defendants, the name of the daughter of the deceased was also added. At this stage, it is necessary to state that the two sons of deceased Laxman were already parties to the proceedings and the daughter of the deceased was not a party to the proceedings. The said application was resisted by the judgment-debtors on more than one ground. It was, inter alia, contended that Laxman died on April 14, 1977, that no application for bringing his heirs and legal representatives on record was filed; and that the name of Kamal wife of Sadashiv Joshi has been for the first time shown in the application filed by the decree holder on November 18, 1977. The said application to bring Kamal wife of Sadashiv on record is not within the period of limitation and, accordingly, the suit and the proceedings are totally abated and consequently, it was contended that an order passed in Regular Civil Appeal No. 137 of 1975 in the District Court, Beed, had become final and, therefore, the application for amendment of the plaint, judgment and the decree was not maintainable. Lastly it was contended that the decree-holder is not entitled in law to get the decree amended at a late stage- The original suit and the appeal from the original decree were decided long back and the plaintiff, decree-holder, ought to have sought this proposed amendment while the original suit and the appeal were pending. It is further contended that unless the original agreement of sale is not amended or corrected, the plaintiff, decree-holder, cannot claim any right, title or interest other than those mentioned in the agreement of sale. Further it was contended in the said application that the proposed amendment is not legal in as much as there is no omission or mistake or accidental slip, which can be corrected by the Court while exercising the power under Section 152 and 153 of the Code of Civil procedure.

4. Now, the learned Judge, after hearing the parties, was pleased to allow the application filed by the decree-holder for amendment by his order dated June 23, 1980. The order passed by the learned judge runs as follows:

The application is granted partly, and the applicant is allowed to amend his plaint in the Regular Civil Suit No. 45 of 1968 as sought in the application. After his carrying out the proposed amendment, consequent amendment in the decree shall be made. The applicant to amend his pleadings within 15 days. The application is ejected in respect of the prayer for bringing the L.R. of the deceased defendant No. 1 on the record.

This order passed by the learned Judge dated June 23, 1980 is challenged in this writ petition under art- 227 of the Constitution of India,

5. Shri K.H. Kulkarni, learned Counsel appearing in support of this writ petition, contended that the order of the lower Court is contrary to the provisions of Order VI, Rule 17 of the Code of Civil Procedure and the powers of the Court envisaged by Sections 152 and 153 of the Code cannot be exercised in view of the fact that the Appellate Court decree had become final. It is further argued by Shri Kulkarni that the mutual mistake, if any, committed by the parties is in the original document of agreement of sale dated May 6, 1965 and on the basis of this agreement, the plaint was presented to the Civil Court- According to Shri Kulkarni, Section 152 of the Code is for the purpose of correcting the errors directly involved in the proceedings themselves and not for correcting the errors, which are anterior to the proceeding, particularly in documents on the basis of which the suit is filed. Lastly it is submitted by Shri Kulkarni that the provisions of Sections 152 and 153 of the Code of Civil Procedure can be exercised only for correcting the mistakes or omissions in the judgment or decree, but the said powers cannot be exercised to amend the plaint, According to Shri Kulkarni, if an amendment is to be carried out in the plaint, an application made in that behalf would attract the provisions of O- VI, Rule 17 of the Code. The said powers under 6. VI, Rule 17 can be exercised at any stage of the proceedings including the appeal and since the Appellate Court order had become final, the lower Court could not exercise the power to amend the plaint in the exercise of powers under Order VI, Rule 17.

6. Shri N.P. Chapalgaonkar, learned Counsel appearing on behalf of the respondents, submitted that the powers under Sections 152 and 153 of the Code are wide enough. The said sections empower the Court to correct any omission or a mistake in the body of the judgment and decree and even in the plaint if there is no dispute as to the identity of the property. According to Shri Chapalgaonkar, in the instant case, there is no dispute as to the identity of property, namely, Survey Nos. 39, 40 and 41 of village Salimba. The dispute is in respect of the situation of the well and the mango trees in either of the said lands. The well and the mango trees must go along with the lands, in which they are situated. It is, however, by way of abundant precaution an application for amendment is made by the decree-holder and the lower Court had a jurisdiction to allow the said application, and correct the errors or omissions, if any, even in the plaint, in the judgment and the decree passed by the Civil Court.

7. Having regard to the rival contentions of the respective Counsel, a question arises as to whether the Civil Court would-be justified in allowing an amendment while exercising the power under Section 152 of the Code. The said section clearly lays down that clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties- The said power under the said section is to correct mistakes in the judgments, decrees or orders, but not an omission or a correction in the pleadings of the parties. Order VI, Rule 17 of the Code empowers the Court to allow the parties to amend the pleadings. The pleadings are the documents filed by the respective parties after due verification and if any amendment is to be carried out or any mistake or accidental slip is to be corrected, an application for amendment could be made at any stage of the proceedings of that suit. Where an amendment is to be carried out to a plaint or in the written statement, it may give rise to an issue to be tried in a suit and it is, therefore, such an amendment should be made at the earliest opportunity- A clerical mistake or an accidental slip, in its nature, does not contemplate any dispute or any issue to be tried in a suit. Where there is no involvement of an issue to be tried, a mistake could be corrected as clerical or arithmatical mistake in the judgment, decree or order, but not a mistake which would give rise to dispute between the parties calling for a trial of the said dispute in the suit. If there is a mutual mistake between the parties in the pleadings and where there is no dispute as to the identity of the property, it is only a mistake in respect of a survey number where boundaries are correctly described or a mistake in the figures of acreage where the description of the property is fully set out. When the parties go to a trial in respect of an identical property and a mistake in the description of the property arises, in such a situation it cannot be said that there is an amendment to the pleadings of the parties, because there is no dispute as to identity of the property. There is no dispute that the parties intended to litigate in respect of a known property understood by the parties as to the description thereof and in such a case, if a mistake has occurred, the same can be described as accidental or clerical or arithmetical mistake. If this is the case, then, it cannot be said to be a correction of a mistake and it cannot further be said that the parties intended to amend the plaint, but the Court, while exercising powers under Sections 152 and 153 of the Code, could correct such a clerical or arithmetical or accidental mistake. The two provisions in the Code, namely, Order VI, Rule 17 and the powers under Section 152 and 153, are intended to meet different situations, the former is intended to correct the pleadings of the parties and the subsequent provision deals with the powers of the Court, after passing a judgment and a decree in a suit, whereby the Court gets wide powers to correct the clerical or arithmetical mistakes occurred in the judgment and the decree. The question in the instant case is as to whether the amendment sought by the decree-holder is an amendment of the pleadings or it is merely an amendment in the judgment and decree passed by the Civil Court. In my view, where the parties to the suit were definite about the disputed property and there is no dispute as to the identity of the property between the parties and some mistake is committed in the description of the property and the parties litigate in the Court knowing that the dispute is in respect of a definite, undisputed identity of the property, in such a case, it cannot be said that it is an amendment of the pleadings of the parties, but is only a clerical mistake in describing the said property and such a mutual mistake between the parties could be corrected while exercising the powers under Sections 152 and 153 of the Code.

8. In the instant case, there was no dispute between the parties as to the identity of the property. The dispute was as to the location of a well and the mango trees in either of the lands- If the Court has passed a decree for specific performance of a contract and a decree for possession in respect of the suit lands, existence of well and mango trees would fall within the meaning clerical or arithmetical mistake in the judgment and the decree. As stated above, Section 152 gives wide power to the Court to correct the mistakes, if any, in the judgment and the decree and in order to finally adjudicate the rights and give effect to the decision and the decree of a Court, any mistake, even in the pleadings or any document on which the plaint is based, could be corrected by the Court while exercising the powers under Section 152 of the Code,

9. Shri Kuikarai in support of his contentions relied upon a judgment of Division Bench of the Madras High Court in T.M. Ramakrishnan v. G. Radhakrishnan AIR 19481 Mad. 13. It is observed in the said judgment that Section 152 is for the purpose of correcting errors directly involved in the proceedings themselves and not for correcting errors which are anterior to the proceedings particularly in documents upon which suits are brought and, Hence, where there is a mutual mistake in the insertion of a wrong survey number in the mortgage deed and the error is repeated in the plaint and the decree, the Court cannot rectify the error under Section 152 as it is not a clerical or arithmetical error or an accidental slip or omission and the remedy lies by way of suit under s- 31 of the Specific Relief Act. The ratio laid down in the said case is not applicable to the facts of the present case. In the Madras case, the identity of the property itself was in dispute. A document on which the plaint was tiled has given a wrong survey number, even a decree was passed on the basis of recital of the said document. In the instant case, there is no dispute as to the identity of the disputed lands and the survey numbers. Even there is no error or a mistake in the document on which the suit was filed as to the identity of the property, namely, Survey Nos. 39, 40 and 41. The mistake, which was detected by the parties, is after passing of the judgement and the decree and when the decree was sought to be executed, the parties realised that the situation of the well and the mango trees have not been properly described and not the property itself- If the parties have understood correctly what is to be conveyed under a sale deed and the situation of the well and the mango trees is incorrectly described, such a mistake cannot be said to be a mistake as to the identity of the property and it would amount to a clerical or arithmetical mistake or accidental slip. The Court is empowered to correct the same under Section 152 of the Code. A remedy by way of a separate suit is a cumbersome remedy and is not expeditious in order to advance the cause of justice. The power under Section 152 of the Code could be exercised by the Courts to correct such errors, which would not ultimately call for a trial of an issue in a suit. Having regard to the facts of the present case, the authority relied upon by Shri Kulkarni is not applicable.

10. Shri Chapalgaonkar very strongly relied upon a judgment in Mohinder Singh v. Teja Singh . The said High Court observed that Section 152, C.P.C. gives power to rectify any mistake in the judgment, decree or order or errors arising therein from accidental slip or omission and it must include an accidental slip or omission traceable to the conduct of the parties themselves. No doubt the Court cannot go into the disputed questions regarding the principle in dispute, but if a mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed judgment, decree or order such correction can be made under Section 152, C.P.C.

11. Shri Chapalgaonkar also relied upon a judgment in Ear-Servicemen Enterprises (P) Limited v. Swmey Singh AIR[1976] Del 56. Therein the Delhi High Court observed as follows (pp. 59):

The expression 'at any stage' in its literal and actual meaning means without limitation either in frequency or duration or length of time. The expression gives the widest freedom 10 a court of law so that it may do justice to the parties in the case. The expression includes execution. Execution is a stage in the legal proceedings.

12. The third case relied upon by Shri Chapalgaonkar is Pvthan Veettil Sankaran Nair v. Poomulli Manakkal Moopil Sthanam Parameswaran Nomboodiripad : AIR1970Ker57 . It is observed in the said case that (at p- 57 headnote para. 3):

A reading of the provisions of Section 152 and Order 20, Rules 8, C and 7 shows that insistence is not on judgments being in accordance with decrees but vice versa and that corrections of both judgments and decrees can be made 'at any time.' The time factor does not control amendments under Section 152 because that factor applies only to acts of the litigants and not of Courts. The only limitation on the exercise of the power of amendment is the scope of Section 152 under which that power is exercised. Section 152 is based oil two important principles. The first of them is the maxim that an act of the Court shall prejudice no man and the other that Courts have a duty to sec that their records are true and that they represent the correct state of affairs, It is because these are considered to be some of the highest duties of courts that in Section 152 of the C.P.C. it has been provided that even in the absence of any move on the part of the parties the court can of its own motion make the correction.

13. From the above authorities, it is clear that the Court has got large powers under Section 152 of the Code to correct mutual mistakes of the parties even in the pleadings if there is no possibility of an issue being raised and tried in a Court. If the parties have gone to the trial with clear conception of a dispute between them in respect of an ascertained and identified property, and, if a mistake of the kind as in this case has crept in the pleadings, the Court can exercise its powers under Section 152 of the Code to correct such a mistake and finally adjudicate the dispute between the parties. There is no restriction as to the limitation of the exercise of such powers. The power under Section 152 of the Code is to be exercised for the advancement of justice between the parties and if justice is to be done, the Court would be justified in exercising the powers under Section 152 of the Code to correct such a mistake in the pleadings and it will not be an amendment of the pleadings, but it may amount to a correction of a judgment and decree in the matter of final adjudication of a dispute between the parties- Shri Kulkarni laid much emphasis on the fact that the appellate Court has finally decided the case and, therefore, it was not open for the lower Court to grant such an application. That decision is not a decision finally adjudicating the dispute between the parties. It is merely a decision by which the order of the trial Court is set aside and the case is remanded for further enquiry. Such a judgment cannot be said to be final, because it does not finally decide the dispute between the parties. In the said circumstance, the contention of Shri Kulkarni cannot be accepted. I do not think that the learned trial Judge has committed an error in allowing the application for amendment of the decree, judgment or the plaint and, it is, therefore, no interference is called for in the said judgment and order.

14. In the result, the writ petition is dismissed and the rule is discharged with costs-Rule discharged.


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