Abdhu vs Assainar

T.V. Ramakrishnan, J.—Plaintiff in a suit for partition, where a preliminary decree for partition has already been passed and confirmed in appeal, filed an application in the final decree proceedings for amendment of the survey subdivision number of the property described in the plaint schedule and the schedule attached to the preliminary decree. That application was allowed by the court u/s 151 of the CPC though the application itself was filed quoting the provisions contained in Order VI, Rule 17, Code of Civil Procedure.

During the course of inspection by the Commissioner in the final decree proceedings, the Commissioner has with the assistance of the Taluk Surveyor identified the properties in the presence of all the parties concerned and found that the correct survey subdivision number of the property is A/2 and not B/3 as wrongly shown in Ext. A-1 document and the schedules attached to the plaint and the preliminary decree. The Petitioner has no case even in the memorandum of revision that the property in question is not comprised in R.S. No. 8/2 as reported by the Commissioner. The only case put forward is that such a correction of the survey subdivision number cannot be effected by the trial Court when the preliminary decree passed in the suit has already been confirmed in appeal. It was argued that the preliminary decree passed by the trial Court has merged in the appellate decree and as such no correction can be effected either in the plaint or in the preliminary decree by the trial Court. If at all such a correction can be carried out, it can only be done by the trial Court. Strong reliance was placed by the learned Counsel on the Full Bench decision of this Court reported in Kannan v. Narayani 1980 KLT 9 (F.B.). It was also submitted that even if it was found that the correction prayed for is allowable it could only have been allowed u/s 152, CPC and not u/s 151 Code of Civil Procedure.

I do not think that there is any merit in the first contention raised by the learned Counsel. In view of the fact that the amendment was prayed for in a pending final decree proceedings, I do not think that Kannan''s case 1980 KLT 9 (F.B.), has any application to the facts of the case on hand. As the final decree proceedings were pending, the records of the case was within the power of the Court for effecting corrections as the one found out in the course of the proceedings in this case. Such a power can be exercised by a Court in the course of the final decree proceedings is more or less clear from the decision of the Supreme Court reported in Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, which decision was referred to and distinguished by the Full Bench in Kannan''s Case 1980 KLT 9 (F.B.). It may be useful to quote the following passage from the Supreme Court decision wherein the Supreme Court has referred to the observations of Lord Justice Bowan, L.J. in Maller v. Swire (1985) 30 Ch. D. 239.

Every Court has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them.

(emphasis supplied)

Kannan''s Case 1980 KLT 9 (F.B.), was a case where the trial Court lost trail power over its own records whereas in this case as the Court dealing with the final decree proceedings in the suit, was having power over the records ot the case and as such inherent power to set right any mistake in them Accordingly, I find that the learned Munsiff was right in holding that it had inherent power to correct the error in the survey subdivision number of the property ordered to be partitioned as per the preliminary decree both in the schedule attached to the plaint and to the preliminary decree. The decisions reported in Appat Krishna Poduval Vs. Lakshmi Nathiar and Others, and Bela Debi Vs. Bon Behary Roy and Others, , would show that mistakes in the pleadings and decree may be amended even though they may have an origin anterior to the suit and may have been merely repeated in the pleadings and decree.

The first of the case Appat Krishna Poduval Vs. Lakshmi Nathiar and Others, was a case where survey number of the mortgage property was wrongly shown in the mortgage deed and that erroneous survey number was repeated in the plaint and the preliminary decree passed by the Court. The Madras High Court has held in the said decision that the Court has ample power to rectify the order u/s 152 of the Code of Civil Procedure. Of course, the Nagpur Judicial Commissioner''s Court and High Court of Rajasthan have, however, taken a different view to the effect and held that a suit for rectification would be the appropriate remedy. Taking note of the nature of the correction prayed for and the further fact that a final decree is yet to be passed in the suit for partition. I would hold that the view taken by the learned Munsiff is fully legal and justifiable. Instead of relegating the parties to a fresh suit to rectify the mistake it will only be in the interest of justice to correct the mistake in the final decree proceedings itself in exercise of the inherent power of the Court. By allowing the prayer for amendment the Petitioner cannot also be prejudicially affected in any manner whatsoever.

The view taken by the learned Munsiff that the correction can be ordered u/s 151, CPC may not he fully correct. The proper provision which may apply may be Section 152, CPC and not Section 151, Code of Civil Procedure. Even if it is so the fact that the correction was ordered as per Section 151, CPC may not be a ground to interfere with the order so long as power is there in the court u/s 152, Code of Civil Procedure.

Moreover, I find that it is a fit case where I should decline to exercise the power u/s 115, CPC in view of the provisions contained in the proviso to Sub-section (1) of Section 115 even assuming that the order is vitiated by any of the grounds mentioned in Sub-section (1) of Section 115, Code of Civil Procedure. I say so because I find that even if the order is allowed to stand that would not occasion either a failure of Justice or irreparable injury to the Petitioner in this case.

Revision is accordingly dismissed in limine.