D. Kader Batcha and six others vs Goripalayam Darga

The defendants 3 to 8 and 10 aggrieved against the order passed in E.A.No.880 of 1991, in E.P.No.277 of 1988 in O.S.No.16 of 1976,

dated 15.4.1993, on the file of the learned District Munsif, Madurai Town, have filed the above Revision.

The respondent filed the suit in O.S.No.16 of 1976 for ejectment. The suit property is a vacant site measuring 49'' east west on the northern

side, 48'' east west on the southern side, 46'' north-south on the eastern side and 27'' north-south on the western side in old T.S.No.1285/1, new

T.S.No.3643/3 and 4. According to the respondent/plaintiff, the vacant site was taken on lease by the first defendant, one Dawood Sahib from the

plaintiff on 1.7.1956. The suit property forms part of Goripalayam Darga burial ground and so it is a wakf property. According to the plaintiff, the

first defendant is not entitled to the benefit of the Madras City Tenants Protection Act since the commencement of lease was from 1.7.1956, and

the suit property is a wakf property. The first defendant filed a written statement stating that the suit property is not a burial ground, and he became

a lessee of the suit property in 1950. Pending the suit, the first defendant filed a petition in O.P.No.12 of 1976 u/s 9 of the city Tenants Protection

Act. In the said petition, it is specifically stated that the property in question was originally assessed as Door No.21, Goripalayam Paltivasal Street

and later it was numbered as Door No.33. According to him, he is entitled to the benefits under the City Tenants Protection Act. In the counter

filed in the said O.P., the plaintiff has specifically stated that the vacant site leased out, forms part of Goripalayam Darga burial ground, and it is a

wakf property, and it is inalienable in law, and so the City Tenants Protection Act does not apply to the suit land.

The learned District Munsif in the judgment dated 14.10.1983 held that the property ought to have been put up prior to 1953 and the suit

property is not part of Goripalayam Darga Burial ground and so the first defendant is entitled to the benefits of the. City Tenants. Protection Act.

Aggrieved against the same, the plaintiff filed appeal in A.S.No.263 of 1984 against the dismissal of the suit and C.M.A.No.52 of 1984 against the

order in the O.P. The lower appellate court found that the vacant site was leased out to the first defendant on 1.7.1956 and the same forms part of

Goripalayam Darga Burial ground. On the basis of the abovesaid finding, the lower appellate court came to the conclusion that the suit property

cannot be alienated and so the first defendant is not entitled to any right under the City Tenants Protection Act.

Aggrieved against the same the defendants 3 to 7 and 10 filed further appeal in S.A.No.409 of 1987 and Revision in C.R.P.No.973 of 1987.

Ratnam, J., as he then was, while disposing the above Second Appeal and the Revision, confirmed the judgment and order passed by the lower

appellate court. In the Second Appeal, the appellants therein sought to rely on Exs.B-1 to B-6 to prove that the tenancy started from 1950 by

establishing that the, defendants try to sustain their stand that they are entitled to the rights under the City Tenants Protection Act. The learned

Judge has categorically found that the plaintiff established by the evidence that the tenancy commenced only on 1.7.1956 and the property is a

burial ground and therefore it cannot from the subject matter of the application u/s 9 of the Act. It is not in dispute that the said judgment has

become final. After the disposal of the Second Appeal, the defendants filed E.P.No.277 of 1988. In the E.P., the plaintiff filed E.A.No.1080 of

1988 seeking time for two months to handover possession. Though time was granted till 23.12.1988, they filed Revision in C.R.P.No.3221 of

1988 against the said order. K.M.Natarajan,J., as he then was, in his order dated 8.12.1988. dismissed the said Revision granting time till the end

of January 1989. Thereafter the petitioners filed RA.Nos.276 and 277 of 1989 for appointment of a Commissioner to identify the property in

question. The court below appointed a Commissioner. Aggrieved against the same, the plaintiff filed Revision in C.R.P.No.3418 of 1989.

Srinivasan, J., as he then was, allowed the Revision holding that the description of the suit property was never in dispute and it gives quite clearly

the boundaries, and the plaintiff is in possession of the suit property, and effected delivery of possession to the petitioner therein. Thereafter the

plaintiff filed E.A.No.880 of 1991 to substitute the boundaries as mentioned therein. The same was contested by the defendants. The court below

in the order dated 15.4.1993 allowed the petition. Aggrieved against the same, the petitioners have filed the above Revision.

According to the learned counsel appearing for the petitioners, the first plaintiff/respondent herein has given boundaries to the suit property,

which has been reflected in the decree, and the plaintiff is entitled to execute the decree only on the basis of the schedule as mentioned in the plaint

and decree. According to the learned counsel, the property which is in the occupation of the petitioners is a different one and not the same

property as that of the plaintiff, and by filing the present application the plaintiff is trying to take possession of the said property. I am not able to

accept such a submission.

The plaintiff has given the details about the description of the property in the plaint and sought for eviction against the petitioners/defendants. The

petitioners filed an application u/s 9 of the said Act in O.P.No.12 of 1976 only with respect to the property mentioned in the said application,

wherein the boundaries have been mentioned differently. It cannot be disputed that the petition u/s 9 of the said Act cannot be filed for a different

property other than the one mentioned in the plaint, seeking eviction. Even before the courts below it was not the case of the tenant that the

property mentioned in the plaint and the property mentioned in the O.P.No.12 of 1976 are different, and they are not one and the same. Only

because the property mentioned in the O.P. is the property for which the landlord has sought for eviction, the defendants have filed the said O.P.

u/s 9 of the City Tenants Protection Act. The only contention that was raised before the courts below was that the property in dispute both in the

suit and in the O.P. are not forming part of the burial ground, and the lease was during the year 1950. The said submission of the defendants was

not accepted by the lower appellate court and the suit was decreed and their application u/s 9 of the said Act was also rejected. That was

confirmed by the High Court. The learned counsel is not correct in submitting that the case of the defendants was rejected not on the basis that the

defendants are not the tenants with respect to the suit property. This was not over the case of the defendants in any of the earlier proceedings.

Since no such plea was raised earlier, the petitioners cannot be allowed to take such a plea in the Revision.

In the present case, there is no dispute about the identity of the property between the parties. In the earlier proceedings, such a dispute was not

raised by the petitioners. The petitioners had proceeded further only on the basis that the property mentioned in the plaint and in the O.P. are one

and the same. In such circumstances the mistake that had crept in the decree can be rectified, exercising powers u/s 152 of the Code.

In Krishna Poduval v. Lakshmi Nathiar A.I.R.1950 Mad. 75 Krishnaswamy Naidu, J., as he then was, while considering the possibility of

amending the plaint and the decree passed exercising power u/s 152, has held as follows:-

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 Code.

The Apex Court went further and held in Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, , that a party cannot be

refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Apex Court has

further held as follows:-

The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his

blunder, he had caused injury to his opponents which may not be compensated for by an order of costs. However, negligent or careless may have

been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the

other side.

Further, no prejudice will be caused if the order is allowed to stand since there is no dispute about the identity of the property. As stated

earlier, even according to the petitioners the property mentioned in the O.P. is the property that is sought for eviction. So the only limitation to

exercise such power is that it should not prejudice the other side and the third parties who had acquired rights under the erroneous decree for

valuable consideration, and, ignoring the error of the decree, cannot also be said to be against the respondent.

The learned counsel has also relied on the decision of the Full Bench decision of the Kerala High Court in Kannan and Others Vs. Narayani

and Others, wherein the Full Bench has held that except in cases to which S. 153A of the Civil P.C. applies, where there has been an appeal, the

decree under appeal merges in the decree in appeal and it is only the Appellate Court that could correct or amend the decree under S.152 of the

Code.

The next submission of the learned counsel is that if at all such an amendment can be done, it can be only by the Court concerned and not by

the executing Court, and the executing court cannot go beyond the decree. In support of his submission the learned counsel appearing for the

petitioner has relied on the decision in Krishnaya Parbhaya Chintalwar Vs. Meghraj Paparam Teli, wherein the learned Judge has held as follows:-

The decree could not be corrected by the executing Court, and hence they could not make any such application in execution proceedings. It is

evident from the wording of the application as well as from the nature of the reliefs prayed for that it was made to the Court which passed the

decree and not to the executing Court.

Even if the abovesaid objection is accepted this Court can exercise power under Article 227 of the Constitution of India, in the interest of

justice, and in view of the fact that there is no dispute about the identity of the said property to amend the decree as prayed for by the respondent

herein, though the same has to be invoked sparingly. Moreover, the proceedings had become final only in the Second Appeal in S.A.No.409 of

1987. So, this Court has jurisdiction even to entertain that application and deal with the same. I find that the request of the respondent is justified.

Further, the attitude of the petitioners is only to delay the matter. This fact is justified from the fact that the petitioner filed C.R.P.No.3221 of 1988

in spite of the courts below having granted time for delivering the said property as prayed for. Even in C.R.P.No.3221 of 1988, the petitioners

were granted time to deliver possession of the property. In spite of the same, the petitioners have come forward with the present Revision on

untenable facts which are contrary to the stand taken in the earlier proceedings.

In view of the abovesaid discussion, it is very clear that no irreparable injury will be caused to the petitioners by allowing the application in

E.A.No.880 of 1991, and so the petitioners cannot maintain the present Revision, in view of the proviso to Section 115 of the Code. Hence the

application in E.A.No.880 of 1991 is allowed. Consequently, this Revision is dismissed. No costs.