Suryanarayana & ANR. Vs. Repaka Venkata Ramana Kishore & Ors.  INSC
298 (12 February 2009)
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 :
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.
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
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:
had filed the aforesaid suit for partition claiming half share in the total
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 3 defendants are entitled to
participate in the final decree proceedings to work out the equities."
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
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. 463.
The said application
was allowed by an order dated 25.08.2003.
Defendant No. 4 in
the suit filed a revision application there against, which was dismissed by the
High Court by an order dated 19.12.2003 opining that the mistake was a clerical
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 there against.
Appellants are, thus,
Mahabir Singh, learned senior counsel appearing on behalf of the appellants,
(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.
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 thereupon.
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.
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.
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.
factual matrix involved in the matter, as noticed hereinbefore, is not in
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
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.
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 7 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]
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.
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:
8 "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 the suit."
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.
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 Kalwar)"
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
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]