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Kalkonda Pandu Rangaiah Vs. Kalkonda Krishnaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 10749 of 1972
Judge
Reported inAIR1974AP201
ActsCode of Civil Procedure (CPC), 1908 - Sections 152 - Order 6, Rule 17
AppellantKalkonda Pandu Rangaiah
RespondentKalkonda Krishnaiah and ors.
Appellant AdvocateK. Mahipatthirao, Adv.
Respondent AdvocateB. V. Subbarayadu, Adv.
Excerpt:
property - amendment application - section 152 and order 6 rule 17 of code of civil procedure, 1908 - amendment application filed for amending schedule of lands appended to plaint - lower court dismissed application holding that preliminary decree was confirmed by high court - appeal preferred against order - clerical mistake occurred in copying plaint schedule - held, amendment application maintainable as per section 152 even after preliminary decree was passed. - - 6 should therefore be amended by inserting the correct survey number 279/1 in place of survey number 277/1. moreover in the b schedule to the plaint, as well as to the preliminary decree ,the total extent of the land was shown as ac. a and b were in their cultivation .thus the first defendant has failed to prove that any.....order1. this is an application for direction to amend the decree in a. s. no. 462 of 1963 arising out of o. s. 18 of 1957 in the following circumstances. the petitioner herein filed the suit o. s. no. 18 of 1957 on the file of the sub court. mahaboobnagar for partition of joint family properties into two shares and for allotment of one such share to him. he appended to his plaint details of properties mentioned in a. b. and c. schedules. on 23-4-1959 in preliminary decree was passed in his favour for half the suit properties and for past mesne profits for six years and an enquiry into future mesne profits was directed. defendants 1 and 2 carried the matter in a appeal a. s. no. 257 of 1959. the said appeal was dismissed except to the extent of past mesne profits for six years and only.....
Judgment:
ORDER

1. This is an application for direction to amend the decree in A. S. No. 462 of 1963 arising out of O. S. 18 of 1957 in the following circumstances. The petitioner herein filed the suit O. S. No. 18 of 1957 on the file of the Sub Court. Mahaboobnagar for partition of joint family properties into two shares and for allotment of one such share to him. He appended to his plaint details of properties mentioned in A. B. and C. Schedules. On 23-4-1959 in preliminary decree was passed in his favour for half the suit properties and for past mesne profits for six years and an enquiry into future mesne profits was directed. Defendants 1 and 2 carried the matter in a appeal A. S. No. 257 of 1959. The said appeal was dismissed except to the extent of past mesne profits for six years and only future profits were granted in that appeal.

2. Thereafter the plaintiff filed an application I. A. No. 112 of 1963 in the lower Court for passing final decree. By that time it was discovered that some mistakes have crept into the schedule of lands appended to the plaint. Schedule. A comprises of 10 survey number. Item No. 5 therein was shown as survey No. 265 measuring Ac. 5-23 Guntas. Item No. 10 was also shown as survey No. 265 measuring Ac. 2-02 guntas. According to the petitioner item 5 related to survey No. 264 and not 265. Item No. 6 of A Schedule was mentioned as survey No. 277/1 measuring Ac. 6-15 guntas. In the B Schedule 9 survey numbers were shown. of a total extent of Ac. 40-11 guntas. The extent of each of the survey numbers was not separately mentioned.

3. The petitioner-plaintiff filed I. A. 156/70 to amend the plaint schedules. That application appears to have been dismissed. Thereafter he filed I. A. 178 of 1971 to amend the plaint schedule to show the correct survey numbers in A Schedule and also a give the separate extent of each survey number in B. Schedule. On 19th August, 1971, I. A. 178 of 1971 was dismissed by the lower court holding that as the preliminary decree was confirmed in appeal by the High Court. the lower court had no jurisdiction to entertain that application. In the lower court a commissioner was appointed originally in I. A. 112/63 for dividing the suit items. The lower court asked the collector to partition the land as required by S. 54 and Order 20 Rule 18 C. P. C. An advocate Commissioner was appointed to partition the two houses and the sites attached therewith shown in the plaint C Schedule. The Commissioner filed his report about the same. The lower Court passed a decree on 5-8-1963 effecting the division of the Schedule C properties. Thereupon the defendants carried the matter in appeal in A. S. No. 462 of 1963 once again. The said appeal was allowed on 7-10-1968 holding that as the suit property is not situated in an estate, the lower Court was not justified in referring the matter to the Collector for partition, under Section 54 C. P. C. The matter was, therefore, remanded. Thereupon the lower Court appointed another advocate as commissioner to effect partition of the lands comprised in A and B Schedules and to submit a report. The Commissioner submitted his report and the respondents filed their objections. The lower court has by its order dated 19-1-1973 remitted back the report to the Commissioner for a fresh report. After re-partitioning the properties. excepting items 5, 6, 8 and 9 of A. Schedule. The lower Court directed a stay in regard to items 5 to 6 of A schedule in order to enable the plaintiff to get the decree suitably rectified.

4. Plaintiff, petitioner herein, has filed this application in A. S. 462 of 1963 on 8th December, 1971 itself even before the lower court passed the order dated 19th January, 1973. According to his affidavit in the schedules attached to the plaint. in the preliminary decree and in the final decree., survey No. 265 has been mentioned twice due to over-sight. Item No. 5 of A schedule is mentioned as survey No. 265 as also item No. 10 to consist of the same survey number. Item 10 relates to only survey number 264 and not 265 as has been shown inadvertently. The area mentioned in the village records for the land bearing survey number 264 is the same as mentioned in the decree. Therefore it was purely a clerical error. It is therefore necessary to delete survey number 265 from item No. 5. and to insert survey number 264 therein. Regarding Items. 6, 8, 9 and 3 of the plaint A schedule. and A schedule to the decree, survey number 277/1 is shown as consisting Ac. 6-15 guntas, and survey as consisting of Ac. 2,00 of these survey numbers is Ac. 9-15 guntas. In the previous revenue records the area of these survey numbers have been shown as follows:--

Survey number 279/1 ..... Ac. 6-15 guntas

Survey number 279/2 ..... Ac. 2.00 guntas

Survey number 279/3 ..... Ac. 1-00 guntas

Total Ac. 9-15 guntas.

The total area shown as A schedule to the plaint is as follows :-

Survey Number 277/1 Ac. 6-15

Survey Number 279/2 Ac 2-00

Survey Number 279/3 Ac 1-00

Total Ac. 9-15 guntas.

5. According to the petitioner instead of showing survey Number 279/1 in item No. 6 it was shown as 277/1 inadvertently. It was purely a clerical error . Item No. 6 should therefore be amended by inserting the correct survey Number 279/1 in place of survey Number 277/1. Moreover in the B schedule to the plaint, as well as to the preliminary decree , the total extent of the land was shown as Ac. 40-11 guntas comprised in nine survey numbers. The area for each survey number has not been given thinking that the suit was in respect of the whole of the survey numbers. In order to avoid complications , the petitioner gave separate extents to each survey numbers as follows in the amendment petition.

Survey number 119 Ac. 10-32 guntas

Survey number 266 Ac. 00-00 guntas

Survey number 192 Ac. 00-04 guntas

Survey number 277 Ac. 07-23 guntas

Survey number 278 Ac. 05-26 guntas

Survey number 303 Ac. 01-09 guntas

Survey number 374 Ac. 8-19 guntas

Survey number 208 Ac. 02-02 guntas

Survey number 207 Ac. 02-37 guntas

Total. Ac. 39-06 guntas

It was stated in the petition that as per revenue records and as per decree there was a slight variation of Ac. 1.05 guntas. It was, therefore necessary in the interests of justice to give area comprised in each survey number. By virtue of this amendment the nature of the suit and the decree will not change as they are purely clerical errors in the schedule. It was therefore prayed that the plaint A and B schedules , attached to the preliminary and final decrees may be directed to be amended in the manner indicated in the petition.

6. This application is opposed by the respondents, who have filed their counter affidavit. Their objections are that the petition is absolutely belated as it is filed after nearly 16 years. They also stated that the amendments involved disputed questions of facts and it is incorrect to say that the mistakes are clerical or arithmetical attracting the provisions of Section 151 and 152 of the C.P.C. as claimed in the petition. Moreover the matter has been litigated and the properties available for partition have been disputed both in the courts below and in appeal to the High Court. The alleged mistake, therefore, cannot be treated as a mistake liable to be corrected under Sections 151 and 152 of C.P.C. It was also stated that it was not open to the petitioner to substitute for the first time either the survey numbers or to incorporate various extents which are liable to be disputed and proved. It was further stated that the survey numbers which were sought to be amended are in the possession of strangers and do not constitute the joint family properties. Therefore the amendment affects the rights of third parties. The petitioner is seeking to incorporate in the survey numbers obviously by looking into the revenue records so as to fill up the gaps and lacuna in the decree, which cannot be permitted. It was, therefore, prayed that the petition may be dismissed.

7. This petition has been elaborately argued by both sides. According to the case of the petitioner there were arithmetical and clerical errors coming within the purview of Section 152 C.P.C. at the time of drafting the plaint in respect of items 5 and 6 of A schedule. In regard to B schedule the extent was shown by mistake at Ac. 40-11 guntas while its correct extent was Ac. 39-06 guntas. The learned counsel for the petitioner has also argued that the defendants have not disputed the survey numbers in the written statement. Issues 2 and 3 were framed touching the survey numbers as follows :-

2. Whether the properties mentioned in the written statement of the defendant No. 1 are the joint family properties ?

3. What are the properties liable to be divided The trial court considered these two issues together. It was admitted that all the properties shown in A to C scheduled were ancestral properties. The defendant as D. W. 2 has also admitted the same. He has also contended that B schedule land was, since a long time in the possession of joint family and therefore they are liable family and therefore they are liable for partition. The learned Judge ultimately held that all the properties mentioned in schedules A to C are joint family properties. Which are liable for partition. The separate claim made by the first defendant, regarding the B schedule was held to be not made out. In the appeal A. S. 257 of 1959 also the learned Judge, Kumarayya, J., has observed as follows:--

'It is not now disputed that the plaint A and C schedule properties are joint family properties............ This would only mean that all the land covered by either schedules i.e. A and B were in their cultivation ............... Thus the first defendant has failed to prove that any of these properties which were admittedly in the possession of joint family at the time when Venkatramayya died belonged exclusively to him or the second defendant. That being the case the court below is right in holding that all the properties were the joint family properties and are available for partition.'

8. From the above it is clear that neither of the parties detected the mistakes in the survey numbers of items 5 and 6 at any time before. Even in the present counter the respondents did not specifically say whether item No. 5 is 265 or 264. They merely say that the proposed amendment involved disputed questions of fact without stating as to how the dispute about the survey numbers would arise in this case. They also vaguely suggested that the disputed survey numbers were in possession of strangers and did not constitute joint family properties. The respondents have not made specific averments in the affidavit that items 5 and 10 which were both shown in the plaint schedule as comprised in survey number 265 are actually in survey No. 265 consists of any extent more than Ac. 2. 02 guntas shown as item No. 10. The mention of survey number 265 twice must have been obviously due to a clerical mistake. According to the revenue records the petitioner says that he extent of Ac. 5.23 guntas. possessed by the family is only in survey number 264 but not in 265. If the family owns an extent of Ac. 5. 23 guntas and is actually in possession thereof, there can be no dispute about it either by the family members or by third parties, if the correct survey number is shown as 264, as per revenue records. Similarly for item No. 6, the survey number has been shown by mistake as 277/1, instead of 279/1. The three items 6, 8 and 9 seem to be parts of same survey number 279. The family is in possession of Ac. 6-15 guntas in survey number 279/1. 2 and 3. But by mistake in the plaint A schedule it has been shown as 277/1. By correcting the survey number in item No. 6 and making it as 279/1 there can be no dispute amongst the members of the family and it is not states as to which third party is going to be affected by that amendment. Excepting the vague suggestions in the counter affidavit there does not seem to be any substance in the contest raised by the respondents.

9. Coming to the separate extent of each survey number shown in B Schedule, the petitioner says that his petition contains the properties possessed by the family only and he has not included therein the properties in the possession of third parties. The mention of separate extent for each survey number would also enable the court to pass the final decree dividing the lands into two equal shares as per the preliminary decree. I am, therefore of the view that the amendments sought for are purely clerical or arithmetical mistakes and do not involve any dispute questions of title. They are merely misdescription of properties and there does not appear to be any dispute about the identity of the properties.

10. The learned counsel appearing for the plaintiff-petitioner herein submitted that it is a matter within the purview of Section 152 C. P. C. and also contended as follows: He says that after passing of the preliminary decree, his suit is still pending and therefore the amendment can be made either under Section 152 and 153 read with Order 6, Rule 17 C. P. C. He relied upon a decision in Somireddy Burrayya. v. Somireddi Atchavyamma, 1958 Andh. L. T. (SN) 23 for this purpose. he has also invited my attention to the decision in Satyanarayana Rao v. Purnayya, 61 Mad LJ 805 = (AIR 1931 Mad 260) and contended that it is a matter coming within Section 152 C. P. C.

11. The learned counsel appearing for the respondents however relied upon a Bench Decision of Madras High Court in Rama Krishnan v. Radha, Krishnan, AIR 1948 Mad 13 and contended that it was not a case coming under Section 152 C. P. C. at all. He has also relied upon the decisions in Sathappa v. Umaval Achi, : AIR1960Mad564 , Abid Hussain v. R. K. Paul, : AIR1961AP508 and Balwant Singh v. Jagdish Singh, AIR 1971 Punj 474.

12. I will now deal with the respective contentions as the matter has been seriously contested. Section 152 and 153 C. P. C. are as follows :--

'152 Clerical or arithmetical mistakes in judgments, decrees or order 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.

'Section 153: The court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceedings.'

13. On a review of the relevant case law by me. what emerges is accidental slips or omissions may arise in the following circumstances :--

(1) In cases of suits based upon mortgage, sale, exchange, lease or agreement to purchase, survey numbers may be given correctly in the document anterior to the suit but a wrong survey number may be incorporated in the schedules by mistakes. Which mistakes may be carried into the decree schedules as well :

(2) In the above cases, even in the original document on the basis of which the suit is filed, there may be a mistake in regard to the survey numbers, though the extent and boundaries of the land belonging to the parties may be correctly described, and the same wrong survey number may be carried into the plaint schedules and as a consequences into the decree schedules as well :

(3) In suits for partition and the like where there is no document anterior to the suit the mistake may occur in the plaint schedules by giving a wrong survey number or wrong extents though the properties have been correctly described by boundaries etc.

14. It has been held in 61 Mad LJ 805 = (AIR 1931 Mad 260) by Krishnan Pandalai J. that there is nothing which limits the power of the Court under Section 152 C. P. C. to correcting errors, mistakes and omissions which arose in the suit in order to do justice in a proper case where such mistakes arose by reason of copying an erroneous document into the plaint or at some date anterior to the plaint. That was a case in which a wrong description of mortgaged property was given in the bond and the same mistake was repeated in the plaint and in the preliminary decree. It was held that it was open to the plaintiff to apply under Section 152 to have the mistake rectified. A suit fro rectification or an application for review may also be appropriate but that was held to be no bar to an application under Section 152 C. P. C. The learned Judge considered in that case the decision in Narayanaswami v. Natesa, (1893) ILR 16, Mad 424 which was a case of wrong description of the hypothecated property in the plaint, whereas the mortgage consisted of the correct survey number and an application was made to bring the plaint schedule in conformity with that contained in the bond. It was held by the Full Bench consisting of Parker. Best and Muttusami Ayyar, JJ. that the alteration ordered was necessary to rectify a palpable error without which correction the decree was unexecutable. The error in the plaint was so palpable that to obstacle in the way of plaintiff executing his decree. The learned Judge in that decision referred to another decision of a Bench in Somasundaram Chettiar v. Vasuswami Naicker , 1914 Mad WN 107 = (AIR 1914 Mad 297 (1)) wherein there were errors in the description of the boundaries which makes the whole description palpably erroneous and if allowed to stand, would have made the decree absolutely useless and unexectuable. The latter Bench followed the earlier decision in (1893) ILR 16 Mad 424 and held that it was immaterial whether the errors were introduced into the plaint for the first time or in documents anterior to the plaint provided they are clerical errors and it was a case for amendment. Another Bench decision of their Lordships Sadasiva Ayyar and Spencer JJ. in Mahaboob Behum Sahiba v. Lal Begum Saheba, (1921) 14 Mad LW 445 which, followed the above decisions in ILR 16 Mad 424 and 1914 Mad WN 107 = (AIR 1914 Mad 297 (1)) was also followed in 61 Mad LJ 805 = (AIR 1931 Mad 260). The case in (1921) 14 Mad LW 445 was in respect of an amendment of survey numbers filed even after a final decree was passed.

15. The decision of Krishnan Pandalai v. was followed by Patanjali Sastry, J. (as his Lordship then was) in Mad LJ 452 = (AIR 1941 Mad 940 (1)). The learned Judge observed that the Madras High Court has applied section 152 also to cases where the mistake occurred earlier in the document evidencing the transaction itself and was copied in the plaint and decree in the suit brought to enforce the transaction. The decision in Satyanarayana Rao v. Purnayya, (1931) 61 MLJ 805. was followed and the decision to the contra in Shujaatmand Khan v. Govind Behari. Both these decisions were followed in Vimalamba v. Ratnamma, : AIR1966AP26 ) by Venkatesam J, who also followed the Madras view in preference to that of Allahabad. The same view has adopted in Subramonia v. Joseph George, by Kerala High Court and in Ghulam Ahmad v. Khizar Joo, AIR 1960 J & K 37 by the High Court of Jammu and Kashmir.

16. The view taken in Ramakrishnan v. Radhakrishnan (AIR 1948 Madras 13) by a Bench of Madras High Court consisting Gentle C. J. & Hapell J, no doubt struck a different footing. In that case there was a mortgage in 1922. In respect of three items of property, including an item, which was survey No. 1427. In 1928 a preliminary decree was passed , which was mortgagor had no title to survey No. 1467. In 1930 he filed E. A. 494 of 1930 for attachment of property in S. No. 464 to which it was common ground the mortgagor had a title. The attachment was ordered and affected. but nothing was done for three grounds years. In 1933 the mortgagee-decree-holder, assigned the decree to the respondent in the said appeal. Eight years later the assignee-decree-holder brought the properties in survey No. 1467 to sale in execution of the final mortgage decrees and at the sale he became the purchaser. The sale was confirmed and full satisfaction of the decree was entered up. When the assignee-decree-holder purchaser went to take possession, he was obstructed by one of the sons of appellant No. 1. An application to remove the obstruction was filed and was ordered by the trial court in 1943. In appeal to the High Court the appeal was allowed. Shortly after the appeal was allowed dismissing the application of the assignee-decree-holder for removal of obstruction. The assignee-decree-holder filed an application in the lower court to have the mortgage deed, plaint in the mortgage suit and the preliminary and final decrees altered by substituting properties in 1463 and 1466 in place of property number 1467. The provisions of law invoked for that application were Section 151 and 152 C. P. C. The Trial Court allowed the application and altered the instrument by substituting two survey numbers 1463 hypothecate of the mortgage. On those facts the learned Judges held that the remedy of the petitioner was only to file a suit under Section 31 of Specific Relief Act for rectification of the deed and not to file an application under Section 152 of the C. P. C. The learned Judges observed as follows:--

'I am unable to see how Section 152 gives to a court jurisdiction and authority to modify documents, particularly documents upon which a suit is instituted. There is a remedy by way of suit and I find nothing in the provisions of Section 152 which confers upon it similar powers as are conferred by Section 31, Specific Relief Act. In my view 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 proceedings are brought. I am unable to see that property, wrongly described in a deed, can be included in any of the mistakes which the section allows to be corrected. It is not a clerical or an arithmetical error. and I cannot see that it is an accidental slip or an omission.'

The learned Judges preferred to follow the view of Allahabad High Court in preference to the view of Madras High Court cited before it was enunciated in the two decisions of Madras High Court in (1931) 61 Mad LJ 805 = (AIR 1931 Mad 260) and (1941) 2 Mad LJ 452 = (AIR 1941 Mad 940 (1)) and the Rangoon High Court's view as enunciated in AIR 1924 Rang 104.'

Their Lordships also negativated that there was power to amend as prayed for under Section 151 C. P. C. It is therefore clear that the application, out of which the said appeal arose, was for amending the mortgage deed itself and as a consequence the schedules in the plaint and the decrees. Their Lordships clearly laid down that Section 152 is intended only to correct errors involved in the proceedings themselves in the suit and not for correcting errors which are anterior to the proceedings and particularly in the document upon which the proceedings are brought.

17. At this stage attention may be invited to another Bench decision in Latchavya v. Seethamma. (1932) 62 Mad LJ 350 = (AIR 1932 Mad 275) rendered by their Lordships Pillay and Anantakrishna Aiyar JJ. That was a case in which there was a mistake in the mentioning of survey number in the mortgage deed itself. It was mentioned therein as survey No. 166 instead of survey number 168 and that mistake had been repeated in the plaint and decrees. On the basis of the said mortgage the suit O. S. 302 of 1919 was filed. A preliminary decree was passed against which there was no appeal. At that stage, the mortgagee decree-holder discovered that there was a mistake in the survey number. The mortgagee thereupon filed a suit under Section 31 of the Specific Relief Act for rectification of the mistake in the suit O. S. 302 of 1919. The said suit was decreed as the mention of survey number 166 was done by mistake of the parties. The court also directed the amendment of the mortgage-preliminary decree. The decision was confirmed in appeal by the learned Subordinate Judge. But the suit was dismissed by waller J in appeal L. P. A. was preferred against that decision. Their Lordships considered relevant case law and ultimately held that where a mortgage deed has been rectified in respect of a mutual mistake in spite of a decree having been passed on the basis of the mortgage, though the plaintiff has adopted a wrong course in applying in the same suit for rectification of the prior decree, the order of the court should be allowed to stand as it amounted to an amendment which the plaintiffs might have got by first getting the mortgagee deed rectified and then amending the plaint by applying for review or on an application under S. 152 C. P. C. but it was out of a suit for rectification of the mistake in the bond as well as the decree. It was therefore a converse case and their Lordships held that such a rectification of the decree cannot be interfered with., as it was a mutual mistake.

18. It may be relevant at this stage, to note the decision of Supreme Court in Sheodhyan Singh v. Mst. Santichara Kuer : [1962]2SCR753 . That was a case in which a suit was brought in respect of 10 plots of land, for declaration and possession. They were originally mortgaged to the defendants, on the basis of which a morgage suit was filed in 1932. The mortgaged property was sold in court auction and was purchased by the decree holders 1936. They took possession of the property through court and remained in possession till 1943. After the sale to the respondents, there were trouble created by the appellants, who ultimately took possession by force. The respondents thereupon filed the suit out of which the appeal arose. The appellants resisted the suit on a number of grounds. One of grounds related to plot No. 1060. the appellants contended that it was neither included in the final decree for sale in favour of the respondents' predecessors in interest nor in the sale certificate. The final decree contained 10 plots. It gives the Tauzi number, the Khasra number the Thana number, the survey number and the area and the boundaries of each plot. Among the 10 plots mentioned in the final decree there was a plot No. 160 but not plot bearing No. 1060. In the sale certificate also the same plots were mentioned. The High Court held that plot 100 in the final decree and in the sale certificate was a mistake for 1060. In the sale certificate also the same plots were mentioned. The High Court held that plot 100 in the final decree and in the sale certificate was a mistake for 1060, and it was a case of misdescription and not a case of disputed identity. The plot which was taken possession of also was the plot in 1060 as per the description and the boundaries. It was also found that there was no plot bearing No. 160 in the Khata number as the identify of the lot was correctly given and it was only a misdescription of the plot in the final decree as well as in the sale certificate. The decree for possession was held to be good. Their Lordships also confirmed this decision and held that where there is no doubt as to the identity and there is only a misdescription that can be treated as a mere irregularity. This case no doubt related a suit wherein the possession of the correct plot was sought to be recovered. But there is no reason why the same principle laid down by their Lordships viz., that where there is only a misdescription of the plot and there is no dispute about the identity and the suit could be decreed for the correct plot not covered by the decree and sale certificate, should not be applied even in cases arising, should not be applied even in case arising under Section 152 C. P. C. or clerical or mutual mistakes.

19. I am also of the view that in view of the above principles laid down by their Lordships in the above Supreme Court case, the reasoning of the Bench in Ramakrishnan v. Radhakrishnan, AIR 1948 Mad 13 may have to be re-considered in a proper case. I need not pursue the matter further in this case as this case is not based upon a document anterior to the suit.

20. I may now refer to a recent decision by a Bench of this Court in Peraju v. Venkamma, : AIR1971AP74 . Their Lordships preferred to follow the view of Madras High Court in (1931) 61 MLJ 805 = (AIR 1931 Mad 260) and a decision of Rajamannar C. J. in Katamraju v. Paripurnandam. (1948) 2 Mad LJ 301 = (AIR 1949 Mad 282) and that of Krishnaswami Nayudu in Apart Krishna Poduval v. Lakshmi Nethiar, : AIR1950Mad751 . In both the above cases, it was held that where an application is filed for correction of errors as regards survey numbers, in the plaint schedule and decree schedules, and there is no dispute as regards identity of the property amendments may be allowed under Section 152 C. P. C. The fact that the deed anterior to the plaint also contained the similar mistake cannot disentitle the appellant to have the error set right. The above Bench have distinguished the decision in AIR 1948 Mad 13 on facts stating that it related to the rectification of the document itself.

21. It may also be mentioned here that a suit still continues even after the preliminary decree and it is only after passing of final decree the suit can be said to have terminated. It is certainly, therefore open to courts to amend a plaint and decree schedules at any stage before passing of final decree. (Vide somireddi Burrayya v. Somireddy Atchayyamma : AIR1959AP26 ; Basavayya v. Guruvayya, : AIR1951Mad938 (FB) and Venkata Reddi v. Pothi Reddi : AIR1963SC992 .

22. The three decisions relied upon by the learned counsel for the respondents are not in point. The decision in : AIR1960Mad564 related to costs taxed in the plaint on the plaint value. Later on the plaint was amended to a lower value. Their Lordships held that the decree for costs based upon the original plaint cannot be amended as it affects the rights of the parties, and it is not a clerical or arithmetical error. The decision of Munikanniah J, in Abid Hussain v. R. K. Apul, : AIR1961AP508 also related to a case where third parties have acquired rights and hence amendment was not ordered under Section 152 C. P. C. The learned Judge followed the two earlier Madras Bench decisions in Narayana Iyer v. Biyari Bivi, AIR 1923 Mad 57, and Butchaiah Chetti v. Tayer Rao Naidu, AIR 1931 Mad 399. The third decision in Balwant Singh v. Jagdish Singh, AIR 1971 Punj 474 relied upon by the learned counsel for the respondents also related to a presumption decree and the E. P. was dismissed on the ground of the failure to deposit the amount within time. Therefore on the facts it was mentioned that Section 152 C. P. C. was not the remedy. I am therefore not satisfied that any of these cases have any application here in this case. The decision in AIR 1948 Mad 13 relied upon by the learned counsel is, as I, have stated distinguishable on facts and also the principles therein require reconsideration in view of the decision of the Supreme Court in (1961) 2 Mad LJ 116 = (AIR 1963 SC 1870). Moreover the said decision does not lay down a contrary rule in regard to power of the court under S. 152 C. P. C. for amending clerical or arithmetical mistakes in the plaint or in the decrees.

23. As a result of the above discussion my conclusions on the three points formulated above are as follows :--

Where clerical or arithmetical mistakes occur in copying the plaint schedules from the documents anterior to the suit the proceedings in the suit can always be corrected under Section 152, C. P. c. In such cases even the documents on the basis of which the suit was filed may be amended either in a suit under Section 31 of the Specific Relief Act or in a proper case even by an application under Section 152 C. P. C. provided it in a case of misdescription and not one of disputed identity. In such cases if Section 152 is invoked it would obviate a suit which have ultimately bring the same result. In all cases where clerical or arithmetical errors creep-in in the plaint and as a consequence in the decrees as well, they can be rectified at any time even after a final decree. A case of such an amendment petition under Section 152 C. P. C. filed in a pending suit even after a preliminary decree is passed therein is an a fortiori case.

24. Applying the above principles to this case, in view of my finding that the mistakes are merely clerical or accidental. I allow the amendment petition. There will be no order as to costs.

25. Application allowed.


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