KUNJA Vs. GHASIRAM

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution is directed against the order dated 22/7/2013, whereby an application filed by the plaintiffs, Annexure P/4, dated 24/4/2013 is allowed by the Court below. Shri Shrivastava, learned counsel for the petitioner, assailed this order on the ground that at the stage the amendment application was filed, the matter was already fixed for plaintiffs' evidence. The trial has begun and, therefore, unless due diligence was shown, amendment could not have been allowed by the Court below.

(2.) It is contended that the plaintiffs have not shown any due diligence and without establishing due diligence, it was not open for the Court below to allow the amendment application. It is further submitted that by no stretch of imagination, the error in the plaint can be treated as a "typing error". It is submitted that not only at one place, but at three places in the plaint, the plaintiffs have mentioned the name of father as "Funda". In addition, in "Vakalatnama" and the registered address furnished by the plaintiffs before the Court below, the name of father is shown as "Funda". He submits that if these documents are read conjointly, conclusion will be inevitable that the alleged mistake occurred is not a typographical one and, therefore, the Court below has erred in mechanically allowing the said amendment application. In support of this, he relied on the judgments of Supreme Court, ( Vidyabai and others Vs. Padmalatha and another, 2009 2 SCC 409) and (J. Samuel and others Vs. Gattu Mahesh and others, 2012 2 SCC 300). Lastly, it is contended that the amendment was allowed subject to payment of Rs.1,000/- (Rs. One Thousand Only) as costs. The Court below has further erred in permitting the amendment to be incorporated without even ensuring payment of this costs, which amounts to serious flaw in the decision making process.

(3.) Per contra, Shri Nirankari, learned counsel for respondents No.1 to 5/Plaintiffs, supported the order. He submits that the error in the plaint is a typographical error and the arguments advanced by learned counsel for the petitioner are hyper-technical in nature. He submits that no prejudice is caused to the other side, and therefore, the Court below has not erred in allowing the amendment by imposing costs. He also relied on the same judgment of J. Samuel to submit that in the facts and circumstances of the present case, the error does fall within the four corners of "typing error". It is submitted that the facts and circumstances of J.Samuel were different and the said judgment has no application in the fact situation of the present case. He relied on (Smt. Manoj Kumari & Ors. v. Gokaran Nath Misra & Anr., 2009 AIR(All) 178) to submit that such amendment and correction of typing error is permissible under Order 6 Rule 17 of CPC.