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Abdul Kader Vs. Chinnaswarny Padayachi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.M.P. Nos. 9821 and 9822 of 1978 in S.A.S.R. No. 64744 of 1978
Judge
Reported inAIR1980Mad116
ActsCode of Civil Procedure (CPC), 1908 - Sections 151, 152, 153 - Order 6, Rule 17
AppellantAbdul Kader
RespondentChinnaswarny Padayachi
Appellant AdvocateR. Murugesan, Adv.
Respondent AdvocateK. Raghunathan, Adv.
Cases ReferredIn Jai Ram Manoharlal v. National Building Material Supply Gurgaon
Excerpt:
.....section 153, the court has extensive powers to correct mistakes in applications or plaints.;it has to be noted that these sections do not give power to a court to pass an order in respect of a suit which is not pending before it. but then, in this case, an appeal has been filed before this court and remains to be registered as an appeal and before it could not be so registered, the mistake concerned to be corrected.;petition to amend the cause title was allowed. - - .....the file of the sub-court, chidambaram, in respect of the second claimant therein by changing the name sheik rader into abdul rader and also to amend the cause title in the copies of the printed judgments and of the certified copy of the decree in a. s. no. 227 of 1016, on the file of the district court , cuddalore ,by making a similar change therein and to direct the sub court and the district court to likewise amend the cause title in the respective copies of the judgments and of the copies of the decretal order and dear" kept in their respective records and to pass such further or other orders as the court may deem at in the facts and circumstances of the case.2. the petitioner herein who has filed s. a. s. r. no. 64744 of 2978 and who had preferred previously the appeal a. s. no......
Judgment:
1. C. M. P. No. 9821 of 1978, is a petition under Section 151 to Section 153 C.P. C. and O. 6, R. 17 C. P. C. to amend the cause title in S. A. S. R. No. 64744 of 1978, by changing the name of the appellant as Abdul Rader instead of sheik Rader and also to amend the cause title in the copies of the Printed orders and of the certified decretal order made In O. P. No. 152 of 1974 on the file of the Sub-Court, Chidambaram, in respect of the second claimant therein by changing the name Sheik Rader into Abdul Rader and also to amend the cause title in the copies of the printed Judgments and of the certified copy of the decree in A. S. No. 227 of 1016, on the file of the District Court , Cuddalore ,by making a similar change therein and to direct the Sub Court and the District Court to likewise amend the cause title in the respective copies of the Judgments and of the copies of the decretal order and dear" kept in their respective records and to pass such further or other orders as the Court may deem At in the facts and circumstances of the case.

2. The petitioner herein who has filed S. A. S. R. No. 64744 of 2978 and who had preferred previously the appeal A. S. No. 227 of 1976, on the file of the Dist. Court of South Arcot at Cuddalore, wants the aforesaid amendments on the ground that his name is Abdul Rader but by some mistake his name has been given as Sheik Rader in all the proceedings starting from the proceeding which resulted out of a reference made to the Sub Court, Chidambaram under Sec. 31 of the Land Acquisition Act by the special Tahsildar Land Acquisition, Five Year Plan Scheme, Cuddalore.

3. The petitioner and the respondent Chinnaswami Padayachi both claimed to be owners of 1 acre and 16 cents Punja out of R. S. No. 81/28 in Ramanatham village, Vridhachalam taluk, South Arcot, which land was acquired by the Government. The petitioner's claim for the amount of compensation was however negatived by the Sub Court in O.P. No. 152 of 1974 and by the District Court on appeal in A S No. 227 of 1976 and the petitioner has filed S.A.S R. No. 64744 of 1978 against those Judgments and decrees, The special Tahsildar, Land Acquisition who made a reference under Section 31 of the Land Acquisition Act has noted the name of the second claimant as Sheik Rader, son of' Mustafa Sahib. The first claimant was the respondent. The petitioner contends that it is by a mistake on the part of the Special Tahsildar that he, the second claimant, has been named as, Shall; Rader instead of Abdul Kader, and as a result of it in all the records relating to before the Sub Court,and the District Court his name has been wrongly stated as Sheik Kader in stead of Abdul Kader.

4. The respondent Chinnaswami Padayachi who was the first claimant in the proceedings which arose out of a reference under Section 31 of the Land Acquisition Act, has apparently opposed this petition firstly on the ground that such a petition as this is not maintainable at all for this court has no jurisdiction either under O. 6, Rule 19, C. P. C. or under section 152 and 153 C. P.C. to allow the amendment prayed for, and secondly on the ground that the second claimant in the proceedings before the Sub Court , arising out of the reference was one Sheik, Rader who claimed to be the owner of the property and even at that stage the said Sheik Kader did not contend that his real name was Abdul Kader and after the disposal of O. P. No. 152 of 1974 the second claimant therein filed A. S. No. 221 of 1976 before the District Court as Sheik Kader and his name as such in all the appeal papers and had also filed LA. Nos. 482 and 483 of 1975 before the District Court. for excusing the delay in filing the appeal and for stay of operation of the order of the learned Subordinate Judge, in O. P. No. 152 of 1974, respectively signing himself as Sheik Kader in the affidavits and all these would clearly show that the petitioner before this court viz, Sheik Kader who figured in the proceedings before the Sub Court and the appellate Court are different persons and as such the amendments sought for could not be allowed. Thirdly, the learned counsel for the respondent contended that if a mistake had occurred in the proceedings before the Sub Court and the District Court, the petitioner should go before those Courts for seeking the necessary amendments and since before this Court there is no appeal actually pending this Court cannot either under S. 151 or under Section 152 or Section 153 allow the amendments.

5. No doubt, in the proceedings before the Sub Court, and before the District Court, the second claimant in the O. P. had described himself only as Sheik Kader for he was so described in the reference made by the Special Tahsildar. It should however be noted that the certified copy of the vakalat filed in O. P. 152 of 1974 in the Sub Court of Chidambaram, the second claimant signed as Abdul Kader; likewise in the vakalat filed by him in A.S. No. 227 of 1976 before the District Court, also he has signed as Abdul Kader. Though in the vakalat filed in O. P. No. 152 of 1974, in the Sub Court, the second claimant's name is mentioned in the cause title as Sheik Kader, the second claimant has signed his name as Abdul Kader, But in the vakalat filed before the District Court in A. S. No. 227 of 1976, the second claimant has given his name as Sheik Kader alias Abdul Kader and has signed it as Abdul Kader. In yet another vakalat filed in the O. P. he has signed his name only as Abdul Kader. It is also not disputed that the father of the second claimant in the Land Acquisition proceedings is one Mustafa Sahib. It was on the basis of a sale deed, a copy of which is Ex B. 1 executed in favour of Mustafa Sahib by one Chellamal that the second claimant claimed to be entitled to the compensation amount as he was the son of the said Mustafa Sahib. It is not the respondent's case, that there is one Sheik Kader, son of Mustafa Sahib who is the second claimant therein and that Sheik Kader, son of Mustafa is not the Petitioner herein. It is perfectly obvious that it is only by a mistake that the Special Tahsildar has given the name of the second claimant in the land acquisition Proceedings as Sheik Kader. This was overlooked in the proceedings be for the Sub Court and no attempt was made to correct that mistake by the petitioner or his counsel and even when in appeal was filed in the cause title the second claimant's name was given as Sheik Kader alias Abdul Kader and again no attempt was made to correct the mistakes in the records with regard to the name of the second claimant though in the vakalat both before the Sub-Court and the District Court the second claimant signed as Abdul Kader.It is only while filing the memorandum of second appeal before this court that the petitioner has given the second claimant's (the appellant's) name as Abdul Kader and then fearing that in view of the fact that the name of the second claimant has been throughout given in the earlier proceedings only as Sheik Kader, he corrected the name of the appellant In the second appeal as Sheik Kader and has come forward with this petition to make necessary corrections in all the proceedings.

6. Of course, if without making those corrections he files a second appeal as Abdul Kader, there will be (sic) in respect of that appeal and further it the name of the second claimant is not corrected in all the proceedings, if he succeeds in this second appeal, he would have difficulty in getting the compensation amount for again the question will arise whether he is the person who was named as the second claimant in the Land acquisition proceedings and realising the difficulties he has come forward with this petition.

7. Order 6 Rule 17 C. P. C. relates to the amendment of pleadings and it authorises a court at any stage of the proceedings to allow either party to alter or amend his pleadings. Section 151 C. P. C. deals with the inherent powers of the Court making such orders as may be necessary for the ends of justice or preventing abuse of the process of the court. Section 152 relates to the correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. Sec. 153 relates to powers of the court to amend any defect or error in any proceeding in a suit at any time. The learned counsel for the 'respondent however contends that since the matter is not pending before this Court in view of the fact that the memorandum of appeal filed into this court has not been registered as an appeal this court cannot, invoking any of the aforesaid provisions, allow the amendments prayed for. No doubt, the memorandum of appeal filed into his court has not been registered as an appeal in view of the difficulty which I have already mentioned and it is to get over that difficulty that this petition has been filed. The question is whether in those circumstances, this court would have jurisdiction to allow the amendments prayed for.

8. Order 6, P. 17 relates only to the amendment of pleadings. Such an amendment can be made even before the appellate court when it is not of such a character as to be objectionable either as changing the subject matter of the suit or as being otherwise unfair. In this matter, there was no pleading to be amended, for the proceedings are under the Land Acquisition Act. Section 151 C. P. C. however, in my view, is wide enough to provide for such amendment, as have been prayed for. In fact, it has been held that even the inherent powers of the court are not limited to Secs. 151 and 152. Dealing with the powers of the court under Section 546 of the *Code of 1882, Woodroffe J. observed as follows

"Court has an inherent power ex debito justitiae to consolidate, postpone. pending the decision of a selected action and to advance the hearing of suits; to stay on the ground of convenience cross suits ; to ascertain whether proper parties are before it; to enquire whether the plaintiff is entitled to sue as an adult to entertain application of a third person to be made a party, to add a party, to allow defence in forma pauperis etc."

Of course, the inherent 'powers are Intended for exceptional cases and are non intended to enable courts to ignore the provisions of law which govern procedure nor could all the inherent powers of a court be used in order to relieve a party from the consequences of his own mistake or to enable him to evade the law of limitation. The Code has reserved to every court 'under Section 151 the inherent power to make such orders as should be made ex debito Justitiae, and every court should have In view. The shortening of litigation preventing duplication of proceedings, and saving the parties from harassment and expenses. Where a purely clerical error is brought to the notice of a High Court when it is seized of the matter as court of appeal, it can, correct the error, and extensive powers of amendment may be exercised under Sections 151 and 153. The provisions of Section 152 give power to the court not only to correct clerical or arithmetical mistakes in judgment, decrees or orders but also errors arising therein from any accidental slip or omission and such correction may be done at any time by the court, even without an application by any of the parties (vide(1941) 2 Mad LJ 452). The court's powers of amendment are not restricted to errors that have crept in the judgment or decree but extend to errors that have crept in plaint, decree, sale certificate etc. Where a property was wrongly described in a plaint in mortgage suit and the mistake is repeated in the and final decree without being noticed either by the parties or by the court, the court has ample powers to amend the plaint, decrees and the judgment and correct the mistakes. Under Section 153, the court has extensive powers to correct mistakes in applications or plaints and it was held that where in a suit on a mortgage the name of the village in which the mortgaged property was situated was miss described and the mistake is discovered an appeal it is the duty of the appellate court to allow an amendment of the plaint and thus rectify a clerical mistake.

Lord Buckmaster observed in (1921) ILR 48 Cal 832, as follows:-

"All rules of court are nothing but provisions intended to secure the proper, administrations of justice, and it is therefore, essential that they should be made to serve and be subordinate to that purpose so that full Powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another-, nor to change by means of amendment the subject matter of the suit".

9. Again it has been observed In AIR 1921 All 321, that the courts do not sit as disciplinary bodies to punish parties for inept procedure when their right is clear and no misunderstanding, surprise or prejudice can occur to the other side.

10. Of course, it has to be noted that these sections do not give power to a court to past art order: in respect Of a suit which is hot pending before it. But then, in this case, an appeal has been filed -before this court and remains to be registered as an appeal and before 2 could be so registered, the mistake concerned has to be corrected.

11. In Jai Ram Manoharlal v. National Building Material Supply Gurgaon (1969) 1 SC WR 758, it has been held that the ordinary rule is to grant all amendments and disallowing an amendment is an exception and courts should always allow an amendment where any loss to the opposing party can be compensated for by costs. In that case also, there was a miss description In the plaint with regard to the plaintiffs The Supreme Court held that there in no rule that unless in an application for amendment of plaint It to expressly averred that the error omission or miss description is due to a bona fide mistake, the court has no power to grant leave to amend the plaint and the power to grant amendment of the pleadings is Intended to serve the ends of Justice and is not governed by any such narrow or technical limitations.

12. In the case now before me it 18 patent that It is by mistake that the name of the second claimant in the Land Acquisition proceedings was given as Sheik Kader in reference by the Special Tahsildar for Land Acquisition and that mistake continued even though the petitioner has been signing himself as Abdul Rader in the vakalats which he filed in the proceedings before the Sub Court and in the appellate court. In these circumstances, I am of the view that these amendment sought for should be allowed. Hence C. M. P. No. 9821 of 1978, to allowed.

13. C.M.P. No. 9822 of 1978, is for it direction to the Sub Court of Chidambaram to retain with it the compensation amount deposited in O. P. No.. 152 of 1974, on its file; and an interim direction was given to that effect by me on 6-18-1978. Till the second appeal is registered as an appeal and brought for orders for admission that direction will continue.

14. Petition allowed.


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