Palaniappa Gounder and Another vs Nallusami and Others

S. Sardar Zackria Hussain, J.—The revision petitioners are the plaintiffs in O.S. No. 7 of 1998 on the file of the District Munsif Court,

Paramathi. The revision is filed challenging the rejection of the amendment petition General Number 1227 of 2002 filed under Sections 151 and

152, C.P.C. for amendment of the plaint and consequently to amend the judgment and the decree dated 28.2.2001 in the suit.

The revision petitioners/plaintiffs filed the suit O.S. No. 7 of 1998 for declaration and permanent injunction and also for possession as sought in

the plaint. The suit was resisted by the defendants, viz., the respondents herein and after trial, the suit was decreed as prayed for on 28.2.2001

granting two months'' time to hand over possession and directing the plaint plan Ex.A-1 and two plans of the advocate-commissioner Exs.C-2 and

C-3 to form part of the decree.

After obtaining certified copy of decree and judgment, the plaintiffs filed amendment petition in General No. 1227 of 2002 on 18.6.2001 to

amend the plaint, judgment and decree as follows:

(1) to amend the word (eastern) as (western) in the 5th line of 8th para at 5th page of the amended plaint and accordingly to amend the word

(eastern) as (western) in the 2nd line of para 11(c) of the plaint. To amend the number ""5"" as ""6"" in the 3rd line of para 11(g) of the plaint.

(2) to amend the number ""280/1"" as ""279/1"" in the 13th line of 3rd page of the certified copy of judgment; to amend the number ""226/1B"" as

276/1B"" in the last but 3rd line of 5th page of the certified copy of judgment and to amend the number ""226/1B"" as ""276/1B"" in the 11th line of

19th page of the certified copy of judgment and accordingly amend the original judgment and

(3) to amend the word (eastern) as in the 5th line of 2nd page of the certified copy of decree) and also accordingly to amend the word (eastern) as

in 2nd line of 5th clause at page No. 3 and also to amend the number ""5"" as ""6"" in the 1st line of 14th clause at 4th page.

In the affidavit filed in support of the petition, it is stated that such mistakes have crept in by inadvertence in the plaint, which are sought to be

amended and which resulted in stating incorrectly in the judgment and decree also.

The learned District Munsif without taking the petition on file, rejected the same on the ground that the petition has been filed by the plaintiffs

after delivering the judgment and drafting the decree in the suit and as such, the plaintiffs have no right for seeking such amendment either under

Order 6, Rule 17, C.P.C. or under Sections 151 and 152, C.P.C. Challenging the correctness of the rejection order dated 6.6.2002, the plaintiffs

have filed the above revision.

Heard the learned counsel appearing for the revision petitioners/plaintiffs and the learned counsel appearing for the respondents/defendants.

The learned counsel for the revision petitioners/plaintiffs by referring to the relevant paragraph in the plaint, vehemently contended that despite

the fact that the suit was decreed after contest as prayed for by the plaintiffs, since mistakes have crept in by inadvertence, in the plaint, which

resulted in stating so in the judgment and decree also, the amendment as sought for by the plaintiffs has to be allowed.

The learned counsel for the revision petitioners also relied on the decision of this Court rendered by me in Mrs. Kasturi Gandhi and J. Gopala

Krishnan Vs. B. Shanmugaraja and S. Regupathy, in which by following earlier judgment of this Court in Minor Murugan, etc. v. Thirupathi

Gounder and Ors. 2002 (3) LW 54 I have held thus:

Where the amendment sought for in the plaint is necessary for the disposal of the suit, it is just and proper to allow the amendment especially when

it does not change the character of the suit and causes no prejudice to the defendant.

The learned counsel appearing for the respondents/defendants argued that inasmuch as the suit was decreed as prayed for by the plaintiffs and

since the petition, which is subject matter of this revision, has been filed after delivering the judgment and drafting the decree in the suit, the plaintiffs

cannot be allowed to amend as sought by them. The learned counsel further submitted that liberty may be given to the respondents to contest the

amendment petition.

It is well settled that arithmetical and clerical mistakes can be corrected u/s 152, C.P.C. As per the proposed amendment, the plaintiffs sought

to mention correct direction, change in some of the survey numbers and array of the respondents/defendants.

In paragraph 6 of the plaint it is stated that the defendants have been trying to encroach the lands mentioned as ""P1"" and ""P2"" of the plaintiffs

situated adjacent on the east and north to the lands of the defendants mentioned as ""D"". In paragraph 7 of the plaint, it is stated that the defendants

5 and 6 have encroached the lands marked as ""X1"" and ""X2"" belonged to the plaintiffs which is on the east of the lands of the 6th defendant

marked as ""D4"". In paragraph 8 of the plaint it is stated that though the plaintiffs requested to deliver the portion encroached by the defendants 1 to

3 on 1.12.1997, viz., the portion shown in rose colour and marked as ""X"" in southern extremity of Survey No. 276/1B, the defendants 1 to 4

refused to deliver possession. Therefore, as per the averments in the plaint paragraph 6, the lands of the defendants are situated on the east and

south of the lands of the plaintiffs marked as ""P1"" and ""P2"". Further, in paragraph 8 of the plaint, it is stated that the plaintiffs have right for

declaration that they are entitled to fix the boundary after measuring the lands of the plaintiffs mentioned as ""P1"" and ""P2"" on the south and east

adjacent to the lands of the defendants mentioned as ""D"". Similarly in paragraph 11(f) of the plaint the plaintiffs sought declaration that the portion

encroached by the 6th defendant and shown as ""X2"" in the plaint plan, belonged to the plaintiffs and the 6th defendant should hand over

possession of the said portion after removing the coconut saplings to the plaintiffs, but, however, in the following prayer 11(g) it is stated that the

5th defendant should not interfere instead of 6th defendant. In the schedule of property it is stated that the western and southern survey boundary

of ""P1"" and ""P2"" is the subject matter of the suit. Therefore, it is clear that by mistake it is stated in paragraph 8 of the plaint as set out above and it

follows, due to such typographical error, the mistakes have crept in. In that view, such amendment as sought by the plaintiffs can be considered by

the trial Court, even after delivering the judgment and drafting the decree, since such mistakes can be amended, after affording opportunity to the

defendants. In that view, the order of the trial Court being erroneous is to be set aside.

In the result, this Civil Revision Petition is allowed. No costs. The order dated 6.6.2002 passed in General No. 1227 of 2002 in O.S. No. 7 of

1998 by the District Munsif, Paramathi, is set aside. The District Munsif, Paramathi, is directed to restore the amendment petition General No.

1227 of 2002 in O.S. No. 7 of 1998, subject matter of this revision and to dispose the same in accordance with law after affording opportunity to

the respondents/defendants.