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Appat Krishna Poduval Vs. Lakshmi Nathiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 163 of 1948
Judge
Reported inAIR1950Mad751
ActsCode of Civil Procedure (CPC) 1908 - Sections 21 and 152; Suits Valuation Act, 1887 - Sections 11
AppellantAppat Krishna Poduval
RespondentLakshmi Nathiar and ors.
Appellant AdvocateK.P. Ramakrishna Iyer, Adv.
Respondent AdvocateN.R. Sesha Iyer, Adv.
DispositionPetition dismissed
Cases ReferredKumaran Nambiar v. Ramunni
Excerpt:
.....valuation act, 1887 - revision petition against order passed by district munsif court allowing application for amendment of plaint - amendment applied not barred by limitation - no irregularities in exercise of jurisdiction - no infirmity in order passed by court below - revision petition liable to be dismissed. - - 1, as failure to do so would not enable him to have the amendment prayed for and the proper remedy is to apply to set aside the decree and not ask for an amendment. no appeal was filed against the decision of the lower court but the learned counsel argues that it is still open to him when the decree comes to court either in execution or in application for amendment to refuse to amend the decree if the court is satisfied that the court which passed the decree had no..........applied in i. a. no. 1404 of 1946 to the district munsif of ottapalam for amendment of the plaint schedule and the preliminary decree by striking out survey nos. 9/6, 164/1 shown in respect of item 4 of the preliminary decree schedule and item no. 4 of the plaint schedule and substituting 6/1, 2, 3, 4, 5, 6, 7, 8 and 9 in the place of the above numbers. the application was opposed by the petitioner. the learned district munsif however ordered the amendment. as against the said order the present revision petition is filed.3. the learned counsel for the petitioner contends that the amendment ought not to have been granted as in effect it amounts to an amendment not only of the schedule to the decree and the plaint but also of the schedule to ex. b. 1 which is an assignment deed of.....
Judgment:
ORDER

Krishnaswami Nayudu, J.

1. Defendant 10 in O. S. No. 543 of 1933 on the file of the District Munsif's Court, Ottapalam is the petitioner. O. S No. 643 of 1938 was filed by the respondents who are jenmies for recovery of Michavaram against some of the defendants who are the kanomdars. The respondents represented two thavazhis, the tarwad consisting of three branches. The other thavazhi is represented by the other defendants. A simple mortgage decree was passed in favour of the plaintiffs on 9th August 1934. The final decree was passed on 27th July 1936. E. P. No. 1277 of 1935 was filed by the plaintiffs for bringing the property to sale and a Commissioner was appointed to report as to the survey numbers and the property that was sought to be sold and in his report it is stated that the parties are not at issue in respect of items 1 and 4 of the schedule to the decree. In E. P. No. 1277 of 1935 an order was made directing the plaintiffs to have the survey numbers given in the decree and the plaint corrected, and that the sale proclamation to mention the correct survey numbers and measurements. The application was disposed of by this order and the corrections were not included in the sale proclamation. The plaintiffs filed another execution petition, E. P. No. 288 of 1943 where for the first time it was pointed out that the survey numbers pertaining to item No. 4 were not correct and that wrong numbers have been given in the plaint and the decree. The learned District Munsif observed in his order on the said execution petition that it was not a proper petition before the Court on which the Court could initiate proceedings and that the mistake in the petition was material in its effect and the execution cannot proceed. As against the said order A. S. No. 423 of 1944 was filed and the learned District Judge held that the observations of the learned District Munsif were not correct and the execution petition was registered under Rule 17 and had reached the stage of setting proclamation of sale, and that the only question to be decided was whether execution should issue in the face of survey numbers for one of the items item No. 4 being incorrect. The learned District Judge however held that it was an execution petition filed in accordance with law.

2. The plaintiffs applied in I. A. No. 1404 of 1946 to the District Munsif of Ottapalam for amendment of the plaint schedule and the preliminary decree by striking out survey Nos. 9/6, 164/1 shown in respect of item 4 of the preliminary decree schedule and item No. 4 of the plaint schedule and substituting 6/1, 2, 3, 4, 5, 6, 7, 8 and 9 in the place of the above numbers. The application was opposed by the petitioner. The learned District Munsif however ordered the amendment. As against the said order the present revision petition is filed.

3. The learned counsel for the petitioner contends that the amendment ought not to have been granted as in effect it amounts to an amendment not only of the schedule to the decree and the plaint but also of the schedule to Ex. B. 1 which is an assignment deed of the jenmi's rights in plaintiff 2's favour and he relies on the decision in Ramakrishnan v. Radhalmshnan. : AIR1948Mad13 , where it was held that Section 152 does not give to a Court jurisdiction and authority to modify documents particularly documents upon which the suit is instituted, that there is a remedy by way of suit and that there is nothing in Section 152 which confers upon the Court similar powers as are conferred by Section 31, Specific Relief Act. Section 31, Specific Relief Act relates to rectification of documents. It may be pointed out that the plaintiff a have not based their claims in the suit on Ex. B. 1 but claimed the amount by virtue of the suit Kychit 1914 that is the kanom deed Ex. A. 2 in the case, and the application is not to amend the description in either EX. A. 2 or even in Ex. B. 1. The learned counsel argues that by granting an amendment it would amount to a correction of the survey numbers in the schedule to Ex. B. 1 also and that in any event in order to entitle him to have an amendment of the decree he should necessarily ask for amendment or rectification of the description in EX. B. 1, as failure to do so would not enable him to have the amendment prayed for and the proper remedy is to apply to set aside the decree and not ask for an amendment.

4. The further contention of the learned counsel is that in any event under Section 152 the Court has no power to grant amendment of the plaint though in cases where there are accidental slips or omission amendment of the decree may be granted.

5. In so far as amendment is concerned it is only a correction of the survey numbers. There is no dispute as regards the identity of the property nor as regards the boundaries to it and there was no controversy at all at the time of the suit as to the identity of the property which has been the subject of the kanom deed. It is only the errors as regards the survey numbers that have crept into the decree and the plaint that are sought to be amended and even before the Commissioner who was appointed to report as to the correct survey numbers as to the several properties which were the subject-matter of the decree the parties were not at issue as regards item No. 4 in respect of which amendment is sought for. I do not think therefore that the amendment asked for goes to the root of the claim or an amendment is sought for in respect of any matter which has been a subject of controversy between the parties to the suit. It is only an amendment for correction of certain errors that have crept into the decree and in the plaint schedules which errors happen to be also in Ex. B. 1. The fact that Ex. B. 1 also has the same errors as in the plaint schedule and in the schedule to the decree cannot disentitle the plaintiffs to have the errors set right if they are entitled to it under the provisions of the Code. Ramakrishna Chettiar v. Radhakrishna Chettiar : AIR1948Mad13 , would not apply to the facts of the case as it is not sought to amend the schedule to the document as was asked for in that case. In that case not only the decree but a series of other proceedings and documents were asked to be corrected, the correction was asked to be made in mortgage deed, in the judgment, in the preliminary decree and the final decree based upon the mortgage deed. It is not the case here. The decision of the learned Chief Justice in Katamraju v. Paripurnanandam, : (1948)2MLJ301 appears to be a decision on the point where it was held that where an application was filed to amend the description of an item of property in the plaint schedule and the decree schedule in a suit which was ultimately disposed of by the High Court in second appeal by substituting for a wrong survey number the correct survey number the application was not to amend the pleadings as such but only to correct an error which had crept into the decree by way of clerical mistake or accident and as on the merits there was no valid objection to the grant of the relief the application must be allowed. The learned Chief Justice observes ''The correction of an error need not always amount to an amendment of a pleading' and an application of that nature could not be taken to be an application under Order 6, Rule 17, and with reference to the passage quoted from Halsbury's Laws of England, Vol. 26, P. 56 which is also quoted before me the learned Chief Justice observes that it refers evidently to material and substantial amendment of the pleading. The amendment was granted as being an error in the proceedings, that is, in the plaint and in the decree.

6. The next contention of the learned counsel for the petitioner is that the decree in respect of which the amendment was applied was barred by limitation on the date when the order for amendment was made. The lower Court rightly observed that it was not necessary to go into the question of limitation and in fact the amendment is allowed in respect of a decree which is already barrad by limitation the amendment cannot be obviously helpful to the decree-holders. The learned counsel argues that the matter ought to have been decided by the lower Court. The final decree was passed on 27th July 1935. The last but one execution petition was E. P. No. 288 of 1943 which was disposed of on 19th December 1944. It is pointed out that subsequent to the passing of the order of amendment by the lower Court the plaintiffs filed E. P. No. 240 of 1947 on 26th July 1947. If the previous application 283 of 1943 was one which was filed in accordance with law certainly E. P. No. 240 of 1947 which is filed within three years from the date of the disposal of the previous execution petition would be in time and the decree could not have become barred on 25th July 1947 when the order of amendment was passed. It is contended that E. P. No. 288 of 1943 was not filed in accordance with law and the learned counsel relies on the obvervations of the learned District Munsif in the order which, however, as pointed out, has been upset by the judgment of the learned District Judge though eventually the application was dismissed for other reasons. Further on 25th July 1947 the date of the order amending the plaint the decree was not only not barred in the view I have taken of the previous E. P. No. 288 of 1943 but it is also saved by the 12 years' period provided for under Section 48, Civil P. C. Therefore the lower Court allowed the amendment of a decree which was not barred by limitation on the date when the order was passed.

7. A further argument was raised against the order of amendment namely that there has 'been considerable delay in applying for the amendment and on that ground it should be disallowed. In fact there was no dispute as regards item No. 4 and the plaintiffs were not aware of the error until they were pointed out in 1946 in the appellate order in A. S. No. 423 of 1945 and I do not think there has been any delay in filing the application.

8. The learned counsel also argues that the decree which is sought to be amended is a nullity and therefore the amendment ought not to have been allowed. It is contended that the suit was filed by two of the plaintiffs who represent two tavazhis out of three of the tarwad and that the kanom deed was in favour of the entire tarwad and it is not open to the plaintiffs to claim in a mortgage suit only 2/3 share of the mortgage money and must have claimed the entire amount then due. The claim in the plaint was for Rs. 2007-11-8 and if another 1/3 share is added to it, that is, the share in respect of arrears of rent due to the third thavazhi, the value would be Rs. 3022-11-8 and the District Munsif would have no pecuniary jurisdiction to entertain the claim. This objection was raised at the time of the trial and was rejected. No appeal was filed against the decision of the lower Court but the learned counsel argues that it is still open to him when the decree comes to Court either in execution or in application for amendment to refuse to amend the decree if the Court is satisfied that the Court which passed the decree had no jurisdiction to pass it and in such cases the decree must be treated as nullity. The learned District Munsif has dealt with this aspect of the case elaborately and I do not think it necessary to reiterate the reasons which he has given for rejecting the contention relying on the following observations in Kumaran Nambiar v. Ramunni, 1938-1 M. L. J. 193 : A. I. R. 1938 Mad. 257:

'To treat want of territorial or pecuniary jurisdiction as amounting to incompetency, seems incompatible with the idea underlying the two statutory provisions mentioned above (Section 11, Suits Valuation Act and Section 21, Civil P. C.). These sections provide that even had the objection not been waived, that is to say, had been taken in the Court of first instance, the presence of a further element is essential, viz. that there has been consequent failure of justice. The principle that they appear to embody is that these defects of jurisdiction ate not fundamental in character and are no more than irregularities in the exercise of jurisdiction.'

9. In this case I do not see any justification for holding that there has been a failure of justice by reason of the claim not having been in respect of the entire amount due for all the three thavzahis but only in respect of two thavazhis represented by the plaintiffs and I do not see much substance in this point and especially when the petitioner who raised this point at the time of the trial but did not take it up in appeal.

10. In the result, I am of opinion that the learned District Munsif was right in allowing the amendment as prayed for. The petition is dismissed with costs.


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