Nettam Govindappa vs Durgappa

A.S. Bopanna, J.—The petitioners are before this Court assailing the order dated 10.06.2009 passed on the IA filed under Order VI Rule 17 read with Section 152 and 153 of CPC in O.S. No. 238/1989 (Old No. 25/88) on the file of the Civil Judge (Jr.Dn) & JMFC, Pavagada.

The petitioners herein are the legal representatives of the plaintiff who had filed the suit in O.S. No. 238/1989 (old No. 25/88). The suit had been filed against the defendant therein seeking for judgment and decree of specific performance of the agreement dated 27.07.1987. The respondents herein are the legal representatives of the original defendant. The suit was ultimately disposed of by the judgment and decree dated 02.03.1994. The relief of specific performance was granted and a direction was issued to the defendant to execute and register the sale deed. The defendant is stated to have filed an appeal against the said order and failed in the same. Ultimately the plaintiff filed the Execution Petition seeking execution of the judgment and decree to obtain the sale deed in favour of the plaintiff. In the said proceedings, it was noticed that the description of the property only to the extent of mentioning village was wrongly indicated as ''Buddenahalli'' instead of ''Buddareddyhalli''. In that view, the plaintiff has filed the instant application in the suit seeking leave to amend the schedule to the plaint and also seeking corrections/amendment to the judgment and decree. The Court below by the order impugned has dismissed the application. It is in that view, the petitioners are before this Court.

Notice of this petition had been ordered. Respondents though served, they are unrepresented. From the writ petition papers, it is seen that even before the trial Court, notice had been ordered to the respondents before consideration of the instant application. The observation made in the order would indicate that though the opponents 1 and 3 viz., the respondents No. 1 and 3 herein had appeared before the Court during the first call, they had thereafter not appeared and subsequently the Court below has considered and disposed of the application. The Court below while considering the application has rejected the same only on taking note of the observation made in the course of the judgment that the defendant has executed the said agreement in favour of the plaintiff and agreed to sell the suit schedule property in favour of the plaintiff. The fact that the relief had been sought in respect of the suit schedule property cannot be in dispute. The question for consideration is as to whether the request made by the plaintiff seeking amendment only to the extent of correctly indicating the name of the village as ''Buddareddyhalli'' instead of ''Buddenahalli'' as indicated in the plaint which was thereafter reflected in the judgment and decree was necessary to be considered. It is no doubt true that the original of the agreement is not available. Even if that be so, the relevant aspect which requires to be kept in view is that the respondents who are the legal representatives of the original defendant have not opposed such claim.

In that light, a perusal of the judgment passed by the Court below would indicate that the plaintiff had claimed that on execution of the agreement which was marked as Ex. P1 possession of the property was also handed over to the plaintiff. While answering issue No. 1 the Court below has arrived at the conclusion that the fact of the agreement dated 27.07.1987 being executed and possession of the said property having given to the plaintiff has been proved. In such situation, when the plaintiff claims to be in possession of the said property and is presently seeking execution of the sale deed, in respect of the same the bona fide of the claim that the correct name of the village requires to be indicated in the document, is to be accepted. This is moreso for the reason that when all other descriptions of the property including the boundaries remains to be the same and only the name of the village being wrongly indicated is sought to be corrected, no purpose would be achieved by the plaintiff if such correction was sought for any other malafide reason, but for correcting the same and to enjoy the property effectively.

If that be the position, with all other matters remaining the same, the correction as sought for was liable to be granted. The Court below was not justified in dismissing the application in the manner it has done.

Hence the order dated 10.06.2009 is set aside. Consequent thereto, the application filed by the plaintiff/petitioners under Order VI Rule 17 read with Sections 152, 153, and 151 of CPC dated 05.10.2007 is allowed. The Court below is directed to permit the plaintiff/petitioners to carry out the amendment to the plaint to the said extent and consequently incorporate the correction/amendment to the judgment and decree.

In terms of the above, the petition stands disposed of.