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Bhairon Lal Vs. Harbans Chaudhary and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All914; 157Ind.Cas.277
AppellantBhairon Lal
RespondentHarbans Chaudhary and ors.
Excerpt:
- - the plaintiff having made an application that by mistake he had not named bhairon lal, son of chunni lal, in the plaint, but had named hira lal son of chunni lal with the result that the decree was given against hira lal, as well as other defendants whereas the decree really should have been given against bhairon lal, the court has made the following order: but if he failed to show this, then there was no reason why the court should not make the necessary correction under the provisions of sections 151 to 153, civil p......that could be cured by a summary procedure of this kind. if he could show that the error was not of this nature then the plaintiff's application would no doubt have to be dismissed. but if he failed to show this, then there was no reason why the court should not make the necessary correction under the provisions of sections 151 to 153, civil p.c. in this case however the order would be, not that the decree should be set aside and the suit reheard, but merely that a nominal correction should be made in the record of the proceedings.3. to this extent therefore the application must be allowed. the order should not be one for setting aside the decree and rehearing the suit de novo. bhairon lal should be given a chance of showing that the error was not merely a nominal one, and the court may.....
Judgment:

Kendall, J.

1. The circumstances out of which this application for revision has arisen are given in the order of the learned Munsif. The plaintiff having made an application that by mistake he had not named Bhairon Lal, son of Chunni Lal, in the plaint, but had named Hira Lal son of Chunni Lal with the result that the decree was given against Hira Lal, as well as other defendants whereas the decree really should have been given against Bhairon Lal, the Court has made the following order:

It is therefore ordered that the decree is set aside and the suit will be re heard.

2. It is claimed on behalf of the present applicant Bhairon Lal that the Court could not set aside the decree which it had itself given merely on the ground that Bhairon Lal had not been impleaded as a defendant. If the plaintiff really made an accidental mistake of this kind and named Hira Lal in the plaint instead of Bhairon Lal, it appears to me that there must be a remedy such as that contemplated in Sections 151 to 153, Civil P.C. There might be an error arising from an accidental sip e.g., the naming of Hira Lal instead of Bhairon Lal, but on the other hand the fact remains that, Bhairon Lal has not been heard in his defence, and so it is not possible at this stage to say whether there has merely been an error arising from an accidental slip or a misconception in the framing of the suit. If there was an error that could be corrected by proceedings under Sections 151 to 153, Civil P.C., then it appears to me that the proper course for the Court was to send a notice to Bhairon Lal and give him an opportunity of showing that the error was not merely one that could be cured by a summary procedure of this kind. If he could show that the error was not of this nature then the plaintiff's application would no doubt have to be dismissed. But if he failed to show this, then there was no reason why the Court should not make the necessary correction under the provisions of Sections 151 to 153, Civil P.C. In this case however the order would be, not that the decree should be set aside and the suit reheard, but merely that a nominal correction should be made in the record of the proceedings.

3. To this extent therefore the application must be allowed. The order should not be one for setting aside the decree and rehearing the suit de novo. Bhairon Lal should be given a chance of showing that the error was not merely a nominal one, and the Court may then pass orders in the light of the above remarks. In the circumstances I need make no order as to costs, which will abide the result. It is therefore ordered that the decree is set aside and the suit will be re-heard.


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