Nirmaljit Singh vs Yash Pal & ors

RAMENDRA JAIN, J. (ORAL)

Through this petition under Article 227 of the Constitution of India, challenge has been laid to orders dated 06.02.2017 and dated 04.01.2018 of the

trial Court, whereby separate applications of the petitioner for correction of clerical error in the application for amendment of his plaint and for

amendment of the plaint was dismissed by the trial Court.

In nutshell, the petitioner-plaintiff filed a suit for mandatory and permanent injunction to restrain the respondents from encroaching upon and raising

any construction on Khasra No.236, Khewat No.175 and Khatoni No.269, of the revenue estate of Patti Gaddar, Kaithal, on the basis of jamabandi

for the year 2009-2010, claiming his co-sharership.

Upon notice, the respondents appeared and contested the suit. In the written statement filed, they took the stand that the disputed Khasra number is

235 and not 236.

Noticing this fact, the petitioner moved an application before the trial Court for correction of the aforesaid clerical mistake by way of amendment

which after contest was rejected by the trial Court vide order dated 06.02.2017(Annexure P-8) on the ground of maintainability observing that

instead, the petitioner ought to have filed an application for amendment of his plaint under Order 6 Rule 17 CPC.

In consonance with the above observation of the trial Court, the petitioner moved another application under Order 6 Rule 17 CPC for amendment of

the plaint, which has been dismissed vide impugned order dated 04.01.2018 (Annexure P-11).

Learned counsel for the petitioner INTER ALIA contends that typographical/clerical mistake occurred in the plaint was not intentional. The

respondents are already aware of the actual Khasra No.235, so they would not take it as a surprise, if the amendment is allowed for effective

adjudication of the real controversy between the parties.

Having given considerable thoughts to the submission made by learned counsel for the petitioner, I find merit in the instant petition for the simple

reason that amendment sought qua khasra number of the suit land, which has occurred due to typographical mistake, which according to the learned

counsel for the petitioner, is not going to change the nature of the suit nor in any manner would prejudice the rights of the respondents, inasmuch as

they are already aware of the fact that the suit property pertains to Khasra No.236 and 235 as well. Since the trial is at initial stage, therefore, the

amendment sought, if allowed, would not, in any way, prolong the litigation.

In view of the discussion made above, this petition is allowed, subject to payment of costs of `30,000/-, to be deposited with the Member Secretary,

District Legal Services Authority, Kaithal.

This order has been passed without issuing notice to the respondents with a view to impart justice to the parties and to save the huge expenses which

may be incurred by the respondents and also to avoid unnecessary delay in the adjudication of the matter. Still, if dissatisfied, the respondents may

move this Court for recalling this order within six weeks from today.

A copy of this order be also sent to Member Secretary, District Legal Services Authority, Kaithal, to recover the costs.