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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 942 OF 2009
[Arising out of SLP (Civil) No. 23191 of 2005]
Peethani Suryanarayana & Anr. ...
Repaka Venkata Ramana Kishore & Ors. ...Respondents
S.B. SINHA, J :
1. Leave granted.
2. Jurisdiction of a civil court to allow an application for amendment of
plaint after a final decree is passed is in question in this appeal which arises
out of a judgment and order dated 10.08.2005 passed by the High Court of
Judicature of Andhra Pradesh in Civil Revision Petition No. 3666 of 2005.
3. The said question arises in the following factual matrix:
A suit for partition as also for a decree for setting aside some deeds of
sale executed in favour of some of the defendants was filed by the
respondent No. 1. Indisputably, during pendency of the said suit, the
defendant Nos. 3 to 7 sold their right, title and interest in favour of the
appellants by reason of registered deeds of sale dated 29.06.1992 and
7.08.1992. The said defendants having not taken any further steps in the
said suit, it was directed to be heard exparte against them.
4. Appellants herein filed an application for impleading themselves as
parties in the said suit, which was rejected by an order dated 4.08.1993.
Aggrieved by and dissatisfied therewith, they filed a revision application
before the High Court. The High Court by reason of an order dated
3.07.1998 purported to have allowed the appellants to participate in the final
decree proceedings, stating:
"The plaintiff had filed the aforesaid suit for
partition claiming half share in the total property.
The said suit was decreed in terms of the prayer
made in the suit. Before the suit was decreed, the
defendants 3 to 7 in the said suit were set ex-parte
from whom the present petitioners alleged to have
purchased their shares. When the preliminary
decree is passed, purchaser of the shares of the
defendants are entitled to participate in the final
decree proceedings to work out the equities."
5. Pursuant thereto or in furtherance of the said order, the appellants
participated in the final decree proceeding. The final decree was passed on
17.12.2001. Validity or otherwise of the said final decree was not
questioned. It, thus, attained finality.
6. Respondent No. 1 thereafter filed an application for amendment of a
mistake, said to be a clerical one, in the decree, seeking deletion of the
Town Survey No. 462 and substituting the same by the Town Survey No.
The said application was allowed by an order dated 25.08.2003.
Defendant No. 4 in the suit filed a revision application thereagainst, which
was dismissed by the High Court by an order dated 19.12.2003 opining that
the mistake was a clerical one.
7. Appellants herein filed an application purported to be under Section
151 of the Code of Civil Procedure for setting aside the said order dated
25.08.2003, which was dismissed by an order dated 14.03.2005. The High
Court, by reason of the impugned judgment dated 10.08.2005 dismissed the
revision application filed by the appellants thereagainst.
Appellants are, thus, before us.
8. Mr. Mahabir Singh, learned senior counsel appearing on behalf of the
appellants, would submit:
(i) The learned Trial Judge as also the High Court committed a
serious error in passing the impugned judgment insofar as they
failed to take into consideration that an application for amendment
of plaint was not maintainable after passing of a decree.
(ii) Appellants herein having been impleaded as a party in the final
decree proceedings in terms of the order of the High court dated
3.07.1998, the Trial Court was obligated to serve a notice on the
application for amendment of plaint as also hear the appellants
(iii) Although entertainment of an application for amendment of plaint
after a decree is passed may be permissible in law, by reason
thereof, the lands in suit cannot be substituted by another.
9. Mr. P.S. Narasimha, learned senior counsel appearing on behalf of the
respondents, on the other hand, would contend:
(i) Amendments, which do not affect the interest of the other parties,
for a bonafide purpose and for effective execution of the decree,
should be allowed.
(ii) The main object of the rule being that the court should allow all
amendments which are necessary to determine the real question in
controversy between the parties without causing injustice to the
other side and only because the parties at one point of time were
negligent or careless in mentioning the correct plot number, the
same, by itself, shall not be a ground for taking away the right
vested in a party by reason of a valid decree passed in his favour
as by reason thereof the identity of suit land is not changed.
(iii) Wrong description of a property in the plaint despite passing of a
decree should not be rejected where it is immaterial whether errors
were introduced in the plaint or any other document, if it is found
that only clerical mistakes were made which could be corrected for
the purpose of proper execution of a decree.
10. The factual matrix involved in the matter, as noticed hereinbefore, is
not in dispute.
It is also not in dispute that in the plaint suit land was described as
Revisional Survey No. 165. The village became a part of the municipality,
by reason whereof a new Town Survey was assigned to the suit land being
Town Survey No. 463. However, in the plaint and consequently in the
preliminary decree as also in the final decree, Town Survey No. 462 was
mistakenly mentioned, which was evidently a typographical mistake.
11. The power of the court to allow such an application for amendment of
plaint is neither in doubt nor in dispute. Such a wide power on the part of
the court is circumscribed by two factors, viz., (i) the application must be
bonafide; (ii) the same should not cause injustice to the other side and (iii) it
should not affect the right already accrued to the defendants.
12. Appellants herein are pendent elite purchaser from the Defendant
Nos. 3 to 7. A preliminary decree was passed against them. It has attained
finality. They were also allowed to participate in the final decree
proceedings. A final decree was also drawn up. It also attained finality.
The respective shares of the parties inter se in the joint family property as
also the plots of the lands which were required to be allocated respectively
in their favour is no longer in dispute. It is also not in dispute that the
appellants, being purchasers of undivided share in a joint family property,
are not entitled to possession of the land what they have purchased. They
have in law merely acquired a right to sue for partition. [See M.V.S.
Manikayala Rao v. M. Narasimhaswami and others AIR 1966 SC 470 and
Hardeo Rai v. Sakuntala Devi and Others (2008) 7 SCC 46]
13. In view of the aforementioned legal position, the appellants merely
could have filed a suit for partition either as a plaintiff or defendant in
respect of the property which was joint family property.
14. On a query made by us, it was stated at the bar that the deeds of sale
dated 29.06.1992 and 7.08.1992, in terms whereof the appellants purchased
share in the joint family property, consisted of the suit lands including the
aforementioned Town Survey No. 463. It is not the case of any of the party
to the suit that the Town Survey No. 462 was the joint family property or
could have otherwise been the subject matter of the said suit for partition.
In Sajjan Kumar v. Ram Kishan [(2005) 13 SCC 89], this Court held:
"5. Having heard the learned counsel for the
parties, we are satisfied that the appeal deserves to
be allowed as the trial court, while rejecting the
prayer for amendment has failed to exercise the
jurisdiction vested in it by law and by the failure
to so exercise it, has occasioned a possible failure
of justice. Such an error committed by the trial
court was liable to be corrected by the High Court
in exercise of its supervisory jurisdiction, even if
Section 115 CPC would not have been strictly
applicable. It is true that the plaintiff-appellant
ought to have been diligent in promptly seeking
the amendment in the plaint at an early stage of the
suit, more so when the error on the part of the
plaintiff was pointed out by the defendant in the
written statement itself. Still, we are of the opinion
that the proposed amendment was necessary for
the purpose of bringing to the fore the real
question in controversy between the parties and
the refusal to permit the amendment would create
needless complications at the stage of execution in
the event of the plaintiff-appellant succeeding in
In Niyamat Ali Molla v. Sonargon Housing Cooperative Society Ltd.
and Others [(2007) 13 SCC 421 : AIR 2008 SC 225] this Court held :
"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 of 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 was missing, the same
by itself would not be a ground to interfere with
the impugned order."
In North Eastern Railway Administration, Gorakhpur v. Bhagwan
Das (Dead) By LRs. [(2008) 8 SCC 511], this Court held:
"16. Insofar as the principles which govern the
question of granting or disallowing amendments
under Order 6 Rule 17 C.P.C. (as it stood at the
relevant time) are concerned, these are also well
settled. Order 6 Rule 17 C.P.C. postulates
amendment of pleadings at any stage of the
proceedings. In Pirgonda Hongonda Patil v.
Kalgonda Shidgonda Patil and Ors. which still
holds the field, it was held that all amendments
ought to be allowed which satisfy the two
conditions: (a) of not working injustice to the
other side, and (b) of being necessary for the
purpose of determining the real questions in
controversy between the parties. Amendments
should be refused only where the other party
cannot be placed in the same position as if the
pleading had been originally correct, but the
amendment would cause him an injury which
could not be compensated in costs. (Also see:
Gajanan Jaikishan Joshi v. Prabhakar Mohanlal
15. There cannot be any doubt whatsoever that the principles of natural
justice are required to be complied with. But, in a case of this nature, the
same would be an empty formality. The facts are not disputed. The identity
of the suit land has not been changed. It is not a case where, as submitted
by Mr. Mahabir Singh, one land is being substituted by another. The fact
that the town survey No. 463 is a joint family property is not in dispute. As
indicated hereinbefore, it is the same plot which was the subject matter of
sale and only in respect thereof the appellants herein could claim partition.
Appellants have also furthermore not been able to show as to how and in
what manner they have been prejudiced.
16. For the reasons aforementioned, there is no merit in this appeal,
which is dismissed accordingly. However, in the facts and circumstances of
the case, there shall be no order as to costs.
[Dr. Mukundakam Sharma]
February 12, 2009