SANTOSH KUMAR SAHOO Vs. RADHANATH SAHOO

JUDGEMENT

(1.) This writ petition has been filed by the plaintiff-petitioner Santosh Kumar Sahoo challenging the order dated 1-12-2005 passed by the learned Civil Judge (Senior Division), Cuttack in C.S. No. (1) 234 of 2003 wherein the application filed by the petitioner under Order 6, Rule 17 read with Sections 151 and 152 of the Code of Civil Procedure for amendment of the plaint and two applications filed by both the plaintiff and defendants under Sections 151 and 152 of C.P.C., for amendment of the compromise petition and accordingly correction of the Final decree respectively, as indicated in the Schedules of the proposed amendments, were dismissed.

(2.) Heard Mr. Patnaik, learned counsel for the plaintiff-petitioner and Mr. Samal, learned counsel for the opposite parties-defendants. Mr. Patnaik, learned counsel appearing on behalf of the plaintiff-petitioner submits that at the time of filing of the suit for partition i.e. C.S. No. (1) 234 of 2003 in the Court below, inadvertently only the descriptions of the khata number in the schedules of property have been wrongly mentioned i.e. at some places khata number has been wrongly described in the plaint even though the plot numbers have been correctly mentioned in all the places. On the basis of the plaint schedule, both the parties filed compromise petition and on the basis of the said compromise petition, the suit was decreed finally and the final decree was drawn up on stamp paper. As such the incorrect khata number mentioned in the plaint and the compromise petition have been carried to the Final Decree. In view of the above, the plaintiff filed the petition for amendment of the plaint and both the plaintiff and defendants jointly filed petitions for amendment of the compromise petition, as well as for correction of the final decree. Learned counsel further submits that if the impugned order is not set aside and the prayers made in the above stated petitions for amendment of the plaint and the compromise petition and accordingly petition for correction of the final decree are not allowed, both the plaintiff and the defendants shall suffer irreparable loss at the time of execution of the decree, since the final decree cannot be given effect/executed, due to wrong description of khata number at different places in the final decree. Mr. Samal, learned counsel appearing on behalf of the defendants-opposite parties supported the plaintiff/appellant and submits that since all the concerned parties have filed the respective petitions in the interest of justice, to avoid all future complications, the petitions ought to have been allowed. He further submits that in the meantime final decree has already been signed and sealed and if the prayers of both the parties are not allowed, the same cannot be executed.

(3.) In support of their contention Mr. Patnaik, learned counsel filed a Xerox copy of the order dated 5-9-2005 passed by this Court in the case of Pathani @ Premnath Sahoo v. Krushna Chandra Sahoo and others. Mr. Patnaik, further submits that keeping in view the above order passed by this Court, the prayer for amendment of the plaint, compromise petition as well as correction of the final decree can be allowed, A bare perusal of the above-cited Judgment clearly indicates that a suit was decreed ex parte against all the defendants and a preliminary decree was passed. Thereafter on an application filed by the plaintiff for making the preliminary decree final, the decree was made final. In course of the execution of the final decree, the Civil Court Commissioner found error in the plot number of the suit schedule property. The Trial Court on an application filed under Section 152 of the Code of Civil Procedure, on the ground that the mistake was typographical one, allowed the petition. The defendant challenged the order by way of filing the writ petition on the ground that since he was not having interest initially in the suit plot, he did not contest the suit and the suit was decreed ex parte. Now that the suit plot is changed, he is having interest in the new suit plot the ex parte Judgment/preliminary decree as well as the final decree has to be set aside and he should be allowed to contest the suit. This Court exercising its jurisdiction under Articles 226 and 227 of the Constitution of India set aside the Final Decree as well as the Preliminary Decree as well as allowed the prayer for amendment and remitted back the matter to the trial Court for enabling the defendant to file his written statement and contest the suit and also directed the trial Court to dispose of the matter as expeditiously as possible.