Ajay Kumar vs Kishori Lal and others

Gokal Chand Mital, J.—The petitioner sought to pre-empt the sale made in favour of 7 vendees. On 8th October, 1982 one written statement was filed by three of the vendees without taking an objection that any of the vendees is left out from the array of the defendants, and, therefore, the suit is bad either for partial pre-emption or for not impleading all necessary parties. On 28th October, 1982 a separate written statement was filled by three more vendees. In para (h) of the additional pleas it was pleaded that Bhim Singh son of Gopal is also one of the vendees, who is necessary party to the suit and he has not been made a party and as such the suit is bad for non-joinder of parties. The case was adjourned to 2nd December, 1982, for replication, issues and statements of the parties. On 2nd December, 1982, the plaintiff petitioner filed an application for amendment of the plaint to correct the name of defendant No. 6, whose name was stated to be Chiman Singh son of Gopal son of Devi Sahai to be read as Bhim Singh son of Gopal son of Devi Sahai as the name stated in the plaint was typed due to inadvertence. This application was opposed by the vendees and they pleaded that the time for filing of the suit on the date of the application of amendment to pre-empt the entire sale had run out and, therefore, valuable right had accrued to the vendees and the application not being bona-fide should be dismissed. The trial Court by order dated 31st March, 1983 came to the conclusion that the mistake was not bona-fide in as much as the name of Bhim Singh one of the vendees had clearly been mentioned in the copy of the sale deed obtained by the pre-emptor and, therefore, such an omission cannot be held to be inadvertent nor due to some bona-fide mistake. Since the time for filing a pre-emption suit by the time, the application for amendment of the plaint was filed had run out, that application was disallowed. This is plaintiff''s revision against the aforesaid order.

After hearing the learned counsel for the parties, I am of the view that this revision deserves to be allowed. It is true that in the certified copy of the sale deed which was obtained by the pre-emptor to pre-empt the sale the name of Bhim Singh as one of the vendees is correctly mentioned. The total number of vendees is 7. The suit for pre-emption was filed against all the seven vendees. The plaint typed in Hindi mentions the name of one of the vendees as Chiman Singh son of Gopal son of Devi Sahai. Admittedly, there is no such person either in the list of vendees or in the village The father and grand father''s name are correctly mentioned. On these facts, the only inference that can be drawn is that it was a typographical mistake which is in the nature of a clerical mistake and should have been allowed to be corrected. This view is supported by the judgment reported in Sodhi Singh v. Basanti Singh (1962)64 P.L.R. 633, Deep Chand v. Bahadur Chand (1968) 70 P.L.R. 416, Banta Singh v. Mehar Singh 1969 Cur. L.J. 913 and Deedar Singh v. Dalbir Singh 1970 Cur. L.J. 143.

The learned counsel for the vendees vehemently argued that even if the name of Bhim Singh vendee was wrongly typed as Chiman Singh, due to typographical or clerical mistake, no indulgence should be shown to the petitioner on the peculiar facts of this case because the mistake was pointed out on 28th October, 1982 when the written statement was filed and yet on the same day or on the following day the mistake was not corrected. It shows that they have not acted with due care and attention in rectifying the mistake. In this behalf reliance is placed on recent judgment of the Highest Court in Munshi Ram v. Narsi Ram AIR 1983 S.C. 27. In fact the petitioner''s counsel also relied on this judgment. It is true that in the case before the Supreme Court, application for including the name of the left out out vendee was filed on the following day and on the peculiar facts of that case it was held that the filing of such an application was bona-fide and the pre-emptor acted with due diligence and the permission to amend the plaint was granted even after the expiry of the limitation. However, no rule was laid down in the aforesaid judgment that if application is filed beyond the following day it has necessarily to be dismissed. It will depend on facts and circumstances of each case whether the plaintiff acted with due diligence or not

As already noticed above, the written statement was filed on 28th October, 1982 which included one of the pleas that Bhim Singh son of Gopal has not been impleaded as a defendant who was a vendee, According to the procedure and practice in the Courts, a copy of the written statement is offered to the plaintiff''s counsel in the Court on the date fixed for the purpose and before the next date of hearing he goes through it and if necessary replication is prepared and issues are got framed and if necessary, the statements of he parties before issues are got recorded. At that stage the typographical mistake was noticed by the counsel and the application for correction was made by seeking the amendment in the plaint. Therefore, I consider that the plaintiff acted with due diligence in filing the application for correction on the next date of heaving. Therefore, the rule laid down in the aforesaid Supreme Court decision in Munshi Ram''s case (supra) would be fully applicable to the present case.

For the reasons recorded above, this revision is allowed, the order of the Court below declining the amendment is set aside and the amendment prayed for is allowed on payment of Rs. 500/- as conditional costs. The amendment plaint will relate back to the original date of filing of suit under proviso to Section 21 of the Limitation Act because the mistake committed in this case was due to typographical mistake. The parties through their counsel are directed to appear before the trial Court on 26th August, 1983 when the Court will fix the date for filing of the amended plaint. In case costs are not paid on the date fixed by the trial Court, i.e., for filing of the amended plaint, it shall be deemed that the revision was dismissed and the amendment prayed for was disallowed.