Tapas Guha and Others vs Angurbala Das

Jyotirmay Bhattacharya, J.—The plaintiff/opposite party (decree holder) filed a suit for eviction against the defendants/petitioners (judgment debtor) from the suit, property on various grounds under the West Bengal premises Tenancy Act, 1956 including the ground of reasonable requirement of the plaintiff/opposite party. In the schedule of the plaint the suit property was described as follows:

All that two rooms and privy at the first floor and three rooms at the second floor and one kitchen and bathroom at the ground floor at premises No. 27D, Harikati Bagan Lane now known as Dr. Dhiren Sen Sarani, Kolkata - 700006, P.S. Burtolla.

On the North : 25A. Harikati Bagan lane, Kolkata - 700006.

On the South : Common passage.

On the East : 27D, Harikati Bagan Lane, Kolkata - 700006.

On the West : 28D, Harikati Bagan Lane, Kolkata - 700006.

The defendants contested the said suit by filing written statement denying the allegations made out by the plaintiff in his plaint. Though the defendants did not challenge the plaintiffs title in the suit property and/or the existence of relationship of the landlord and tenant between the parties in respect of the suit property but, still then, they alleged that the suit property has not been correctly defined in the schedule of the plaint. Though they claimed that the suit property has not been correctly defined in the schedule of the plaint but, still then, neither they specified the error in such description nor they disclosed the correct description of their tenancy in their written statement.

Since no dispute with regard to identity of suit property was raised specifically in details, no issue was framed on the said dispute in the suit.

Since the said suit was filed on the ground of reasonable requirement of the plaintiff, an inspection was held at the suit premises for ascertaining the respective accommodation available to the parties in the premises where both the plaintiff and the defendants reside in their respective accommodation. In fact, the suit premises was identified to the learned advocate Commissioner by both the parties at the time of holding such local inspection and both the parties duly represented themselves before the learned Advocate Commissioner at the time of holding such local inspection. The learned Advocate Commissioner held local inspection at the said premises and submitted his report with regard to the accommodation available to the respective parties in the said premises.

The suit was ultimately decreed on contest. The said decree was affirmed In appeal by the learned First Appellate Court which again was subsequently affirmed by the Hon''ble Court in Second Appeal.

Since the defendants/petitioners (judgment debtor) failed to deliver the vacant and khas possession of the suit premises to the plaintiff/opposite party (decree holder) in terms of the said eviction decree, the, plaintiff/opposite party (decree holder) put the said decree into execution for recovery of khas possession from the defendants/petitioners (judgment debtor).

The writ of possession which was issued in the said execution proceeding could not be executed by the Bailiff as he found that the description of the suit property as mentioned in the decree did not tally with the boundaries of the suit property at the site.

The defendants/petitioners (judgment debtor) filed an application u/s 4-7 of the CPC challenging the excitability of the said decree by alleging that the decreetal property as mentioned in the decree is not identifiable with the property where execution was sought to be made, as the boundaries of the suit property given in the plaint and/or in the decree does not tally with the boundaries of the property where execution was sought to be made. The petitioners alleged therein that the eastern and western boundary of the suit property have not been correctly described in the schedule of the plaint. The defendants/ petitioners for the first time disclosed in their said application that premises No. 27C, Harikati Bagan Lane, Kolkata 700006 situates on the eastern side of the suit property. They have further disclosed in their said application that premises No. 28/1, Harikati Bagan Lane, Kolkata - 700006 situates on the western side of the suit premises

Even in the said application, the petitioners did not challenge either the correctness of the extent of their tenancy in premises No. 27D, Harikati Bagan Lane, Kolkata - 700006 or the correctness of the southern and northern boundary of the said premises No. 27D, Harikati Bagan Lane, Kolkata - 700006.

For establishing their allegation regarding wrong description of the eastern and western boundary of the said premises, the petitioners herein applied for an investigation commission at the suit premises in the said execution proceeding.

Pending consideration of those two applications of the defendants/ petitioners (judgment debtor) by the learned Executing Court, two applications were filed by the plaintiff/opposite party (decree holder) in the suit. In one of such applications which was filed under Order 6 Rule 17 of the Civil Procedure Code, the plaintiff/opposite party sought for leave to amend and/or correct the eastern and western boundary of the suit property to identify the said property properly. In the other application which was filed I under sections 151 and 152 of the Civil Procedure Code, the plaintiff /opposite party (decree holder) prayed for correction of the decree in an identical manner as mentioned above. The opposite party stated therein that the eastern part of the suit premises is butted and bounded by premises No. 27, Harikati Bagan Lane, Kolkata - 700006 and the western part of the suit property is butted and bounded by premises No. 28, Harikati Bagan Lane. Kolkata - 700006.

The plaintiff/opposite party stated in those applications that since an erroneous description of the eastern and western boundary of the said premises was mentioned in the sale deed through which she purchased the said premises from her vendor, the eastern and western boundary of the suit premises could not be given in the plaint correctly. It was further stated therein that the said erroneous description of the eastern and western boundary of the said premises was rectified by a deed of rectification executed by the vendor of the opposite party on 16th September, 2006. The opposite party, thus, admitted that the suit property was not correctly defined in the schedule of the plaint. However, she claimed that misdescription was crept in, due to bona fide mistake on her hart, and such mistake is required to be corrected for avoiding future complication. Thus, the plaintiff not only sought for amendment for the schedule of the plaint but also she applied for correction of the decree passed in the suit on 10.7.2002.

The defendants/petitioners (judgment debtor) contested those two applications filed by the plaintiff in the suit, by contending inter alia that the plaintiffs prayer for amendment of the plaint and/or for correction of decree cannot be allowed as there was no bona fide mistake on the part of the plaintiff in giving proper description of the suit property in the schedule of the plaint. It was further stated therein that the amendment of the schedule of the plaint cannot be allowed by the learned trial Court after passing of the decree as the trial Court became functus officio after the passing of the decree in the said suit. It was further stated therein that only the clerical or arithmetical Mistake in the judgment and decree or errors arising therein from accidental slip or omission may be corrected by the Court u/s 152 of the Civil Procedure Code. But since the correction of the decree which has been sought for does not attract any of the said circumstances, the plaintiffs prayer for correction of the decree cannot be allowed. Thus, the defendants/petitioners prayed for rejection of both the aforesaid applications filed by the plaintiff.

Both the aforesaid applications of the plaintiff were allowed by the learned Trial Judge by the impugned order. The learned trial Judge held that the misdescription of the suit property was crept in the schedule of the plaint due to bona fide mistake on the part of the plaintiff. The learned trial Judge further held that there was no laches on the part of the plaintiff in applying for amendment of the plaint and/or for correction of the decree as the plaintiff/ opposite party immediately on discovery of such misdescription of the suit property given in the schedule of the plaint applied for amendment of the schedule of the plaint and/or for the correction of the decree. The learned Trial Judge further held that the plaintiffs prayer for amendment of the plaint and/or for correction of decree can neither be refused nor the consideration of these applications be kept in abeyance till the disposal of the petitioners'' application u/s 47 of the CPC and or their application for local investigation, as claimed by the petitioners herein. The learned trial Judge further held that the petitioners'' those application will be considered by the Executing Court in the executing proceeding and pendency of the execution proceeding cannot be a bar in considering the applications filed by the plaintiff in the suit.

The propriety of the said order is under challenge in this revisional application under Article 227 of the Constitution of India, at the instance of the defendants/petitioners (judgment debtor) herein.

Mr. Bachawat, learned counsel appearing on behalf of the petitioners criticized the impugned order passed by the learned trial Court by submitting that since the wrong description of the suit property was not given due to bona fide mistake on the part of the plaintiff/opposite party herein, his prayer for amendment of the schedule of the plaint ought not to have been allowed by the learned trial Court. He pointed out from the written statement that his clients disputed the correctness of the description of the suit property and extent of his tenancy as mentioned by the plaintiff in para 3 of the plaint. He also pointed out that the correctness of the description of the suit property as mentioned in the schedule of the plaint was also challenged by his clients in their written statement. But, still then, no effective step was taken by the plaintiff for rectification of such erroneous description of the suit premises by way of amendment of plaint during the pendency of the suit. He, thus submitted that if the said conduct of the plaintiff is considered, then it cannot be concluded that such error in describing the suit property was crept in due to bona fide mistake of the plaintiff.

Mr. Bachawat further contended that since the learned trial Judge became functus officio after the disposal of the suit, the learned trial Judge ought not to have allowed the plaintiffs prayer for amendment of the plaint.

Mr. Bachawat further contended that since the decree of the learned trial Court was affirmed by the learned First Appellate Court and the same was further affirmed by this Hon''ble High Court in second appeal, the learned Trial Judge ought not to have allowed the plaintiffs claim for amendment of plaint. According to him, it is only the last Court of Appeal which ultimately affirmed the decree of eviction passed by the learned trial Judge, has the only jurisdiction to rectify the decree, because of merger of the decree of the trial Court within the ultimate decree passed by this Court in appeal. In supports of such submission he relied upon a decision of the Hon''ble Patna High Court in the case of Mt. Kulwanti Devi and Others Vs. Ajodhi Singh and Others, wherein it was held that once the judgment and decree off the trial Court is affirmed in appeal by the Appeal Court, the trial Court ceased to have any jurisdiction to rectify its decree even if, such correction is needed for any of the reasons as contemplated in section 152 of the Civil Procedure Code.

Mr. Bachawat further submitted that the learned trial Judge acted illegally and with material irregularity in allowing the plaintiffs for amendment of the plaint and/or for correction of the decree as the error which was sought to be corrected was neither caused due to clerical or arithmetical mistake in judgment and/or decree nor such error was resulted therein from any accidental slip or omission, in the decree. Mr. Bachawat mentioned correction very firmly submitted that unless any of the conditions as in section 152 of the CPC requiring of decree is satisfied, no Court can amend the judgment and/or decree in exercise of its power u/s 152 of the said Code. To support his aforesaid submission he relied upon the following decisions of the Hon''ble Supreme Court:

1) In the case of Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and Others,

2) In the case of Jayalakshmi Coelho Vs. Oswald Joseph Coelho,

3) In the case of Dwaraka Das Vs. State of Madhya Pradesh and Another,

4) In the case of Sri Ramnik Vallabhdas Madhvani and Others Vs. Taraben Pravinlal Madhvani, 497.

Mr. Bachawat further submitted that when the petitioners'' application u/s 47 of the CPC and the application for local investigation are still awaiting consideration before the learned Executing Court, the learned trial Judge ought to have allowed those applications filed by the plaintiff particularly when the petitioners claimed in their objection that even the misdescription of suit property cannot be rectified, by substituting the proposed schedule in the place of the schedule of the plaint.

According to Mr. Bachawat, when the identity of the suit property is yet to be ascertained by local investigation, the learned trial Judge ought not to have allowed the plaintiffs prayer for amendment of the schedule of the plaint and for similar reason, the plaintiffs application of the correction of decree should have been rejected by the learned trial Judge.

Thus, Mr. Bachawat invited this Court to interfere in the impugned order in the facts of the instant case.

Mr. Roy Chowdhury, learned senior counsel appearing on behalf of the plaintiff/opposite party refuted such submission of Mr. Bhaghawat by submitting that this is a case where the defendants/petitioners were holding a single, tenancy under the plaintiff/opposite party herein. Mr. Roy Chowdhury pointed out from the pleadings made out by the defendants in their written statement that the dispute with regard to the misdescription of the suit property mentioned in the schedule and/or extent of their tenancy in the said premises was raised by the defendants in their written statement very evasively. Mr. Roy Chowdhury further pointed out that the petitioners never mentioned as to what would be the correct description of the suit property in the written statement. Mr. Roy Chowdhury further pointed out that the defendants never challenged the plaintiffs title in the suit property and/or the existence of relationship of the landlord and tenant between the parties in the written statement. Mr. Roy Chowdhury further pointed out that even the suit property and/or the defendants tenancy was identified by both the plaintiff and the defendants to the learned Advocate Commissioner at the time of holding local inspection in the suit premises. Mr. Roy Chowdhury, further contended that this is not a case where one property is sought to be substituted in the place of another property. According to him, it is not a case where a mistaken identity of the property is sought to be corrected by amendment, but it is a case where misdescription of the suit property was sought to be corrected by amendment. Mr. Roy Chowdhury contended that mistaken identity of the suit property mentioned in the decree cannot be rectified by the Court u/s 152 of the CPC as rectification of such error requires further adjudication for establishing the identity of the suit property and such identification is not possible by the Court after passing of the decree. According to Mr. Roy Chowdhury misdescription of the property in the decree can be rectified by the Court u/s 152 of the CPC as further adjudication is not necessary for such rectification.

Mr. Roy Chowdhury, thus, submitted that since the defendants/ petitioners are aware of the identity of the suit property, they cannot suffer any loss and injury, if such rectification is made for correcting the misdescription of the suit property in the decree. In support of his said submission Mr. Roy Chowdhury relied upon a Division Bench decision of this Hon''ble Court wherein it was held that misdescription of the schedule of the suit property can be corrected by the learned trial Court u/s 152 of the Civil Procedure Code.

In fact, this Court finds that the refusal to correct the decree by the learned trial Judge for rectifying the misdescription of the suit property the decree was set aside by the Division Bench of this Hon''ble Court in the said case and the said decree was allowed to be corrected even though the decree of the learned Trial Court was affirmed in appeal.

By relying upon another decision of the Hon''ble Supreme Court in the case of Tiko and Ors. v. Lachman Mr. Roy Chowdhury submitted that even the Hon''ble Supreme Court in the said decision did not accept the view of the High Court to the effect that the trial Court has no jurisdiction to rectify the decree after the said decree is affirmed in appeal.

Mr. Roy Chowdhury also relied upon the decision of the Hon''ble Supreme Court in the case of Niyamat All Molla v. Sonargaon Housing Co operative Society Ltd. (supra) which was cited by Mr. Bachawat, to demonstrate that the Court''s power to amend the decree under sections 151 and 152 of the CPC is not restricted in a case where further adjudication is not necessary for establishing the identity of the suit property and thus the power of the Court to rectify its own decree was recognised by the Hon''ble Supreme Court in the said decision.

Thus, Mr. Roy Chowdhury supported the impugned order and prayed for the rejection of this revisional application.

Let me now consider the submission of learned counsel of the parties in the aforesaid background.

Court''s power to amend the schedule of the suit property in the plaint, even after disposal of the suit and/or to make the consequential amendment in the decree, is well recognised by the Hon''ble Supreme Court as well as by this Hon''ble Court in the decision cited by the parties. Even such power of the Court can be traced out from sections 151 and 152 of the Code of Civil Procedure.

Now the question is as to under what circumstances such power is to be exercised by the Court. In this regard, I may refer to the decisions of the Hon''ble Supreme Court in the case of Niyamat All Molla v. Sonargaon Housing Co-operative Ltd. wherein the Hon''ble Supreme Court after dealing with the relevant provision of sections 151 and 152 of the CPC and also by taking note of the previous judicial precedents in this regard, held that such correction can be made when the defendants could not be said to have been misled by such correction and in fact, by such amendment one property is not substituted by the other. The relevant paragraphs of the said decision are set out hereunder:

para 25: "It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. It is also not a case where by reason for an amendment, one property is being substituted by the other. If the Court has the requisite power to make an amendment of the decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. If the appellant herein did not file any written statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule were missing, the same by itself would not be a ground to interfere with the impugned order.

Other decisions which were cited by Mr. Bachawat also held uniformly that the omission sought to be corrected which goes to the merit of the case, is beyond the scope of section 152 for which the proper remedy of the aggrieved party is to file an appeal or review application. It was, however, held therein that section 152 of the CPC cannot be pressed into service to correct an omission which is intentional, however, erroneous that may be.

In my view here is the case where there was no intentional omission on the part of the plaintiff in describing the suit property incorrectly. The wrong description of the suit property was given in the plaint as wrong description was given in the schedule of the sale deed through which the plaintiff has acquired title in the suit property. In fact, the said mistake was discovered by the plaintiff long after the passing of decree, in 2006 and immediately thereafter the plaintiff applied for the amendment of the schedule of the plaint and correction of the decree. This shows that there was no intentional omission on the part of the plaintiff in describing the suit property in the plaint incorrectly.

Accordingly, this Court holds that those line of decisions which were cited by Mr. Bachawat, have no application in the facts of the instant case.

In fact, the Hon''ble Supreme Court in the case of Tiko (Smt.) & Ors. v. Lachman (supra) remitted the plaintiffs application for amendment of plaint and consequential amendment of the decree to the learned trial Judge for consideration of the said application on merit by not accepting the submission of the learned advocate for the respondent therein that such correction cannot be allowed by the learned trial Court after the decree passed by the trial Court is affirmed in appeal. As such, this Court is unable to hold that the trial Court cannot correct the error in decree to rectify the schedule of the suit property, after the said decree is affirmed in appeal. Had it been a case that the decree was reversed in appeal on the ground of erroneous description of the suit property, the Trial Court certainly could not have corrected such decree inasmuch as such correction may have ultimately upset the decree of the Appeal Court.

Before concluding, this Court wants to put on record that a premises in any Municipal town and/or under a Corporation is normally identified by the holding number allotted to the premises and not by its boundary. Here is the case where there is no wrong description of the holding number of the premises wherein the tenancy is situated. The petitioners are also aware of the identity of the suit property and the extent of their tenancy in the said premises. The petitioners themselves identified the property and/or their tenancy in the said premises to the learned advocate Commissioner at the time of holding local inspection in the said premises. They never disputed the correctness of the report submitted by the learned Commissioner. As such, they can neither be taken by surprise nor they can suffer any injury if the plaintiffs prayer for amendment of the schedule of the plaint and/or for correction of the decree is allowed. On the contrary, if such correction is not allowed then the decree which was passed by the learned trial Judge and was affirmed upto this Hon''ble Court in the second appeal, will be a decree on paper only and the decree holder will be deprived of enjoying the fruits of such litigation which continued for such a long time before different Courts at different stages.

This Court agrees with the findings of the learned trial Judge that the plaintiffs prayer for amendment of the plaint and/or for correction of the decree cannot be refused only because of pendency of the petitioners'' application u/s 47 of the CPC before the Executing Court.

Thus, though this Court does not find any illegality in the order impugned but, still then, this Court makes it clear that while considering the petitioners'' application u/s 47 of the CPC and their application for local investigation the learned Executing Court will consider the merit of these applications independently, as the petitioners still maintain their stand that the suit property cannot be identified even by the substituted schedule which was brought on record by way of amendment of the schedule of the plaint and/or byway of correction of decree in the manner as aforesaid inasmuch as even now the eastern and western boundary of the suit premises which are mentioned in the corrected decree do not tally with the boundaries of the suit property at the site.

This Court, thus, does not find any merit in this revisional application. The revisional application is, thus, rejected.

Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.