KHALIQ SUMJI Vs. GH NABI SUMJI

JUDGEMENT

(1.) GHULAM Nabi Sumji, herein after called the plaintiff filed a suit for possession and injunction against Khaiiq Sumji, hereinafter called the defendant in the court of Munsiff Anantnag. The subject of dispute was land measuring 6 kanals and 12 marlas. The plaintiff based his title to the land on a sale deed dated 5th April, 1961 obtained by him from the original owner, Subhan Thukar, which he filed in original alongwith the plaint in the trial court. The plaint indvertantly mentioned that the suit land was covered by survery No. 1408/346 while actually it was coverred by Survey No. 1408/366 which was the precise survey number entered in the sale deed; The error in the plaint was carried over into the decree which was ultimately passed in the suit. It was not, however noticed by the parties nor also by the court till the decree was put into execution. In the course of execution it was pointed out by the revenue agency, to whom the decree was sent for delivery of possession, that Survey Number should have been 1403/366 and not 1408/346. On this the plaintiff applied for amendment of the decree. The application was granted by the trial court by its order dated 15 -11 -1972 and the necessary correction was ordered in the decree. The order was however made at the back of the defendant. He therefore, made an application on 27 -11 -1972 seeking recall of the order. Incidently his son too made an application praying that he be impleaded as a party to the proceedings. Both these applications were rejected by the trial court of Munsiff, Anantnag, by its order dated 29 -9 -1973. The defendant has come up in revision before this court but not so his son. Accordingly this court is concerned with that part of the order only by which the defendants application was rejected.

(2.) APPEARING for the defendant -petitioner, Mr. Ganjoo argued that the amendment changed the subject matter of the suit and could not therefore be validly allowed by the court below under section 152 C. P. C. particularly so, a number of years after the decree was passed. Replying, Mr. Handoo, contended that it was a case of mis -description and not one where the identity of the land was in dispute and, accordingly, Section 152 C. P. C. was applicable and the court could exercise its power thereunder unrestrained by any bar of limitation,

(3.) SECTION 152 C P. C. provides the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may, at any time, be corrected by the court either, of its own motion, or, on the application of any of the parties. This section is an exception to the general rule contained in 9.20 Rs. 3 and 6 C. P. C. that a judgment, decree or final order once drawn up and signed cannot be altered, varied or amended in any manner even with the consent of the parties. The object of the section is to further the ends of justice where it might otherwise get defeated on account of any inadvertant error or omission in the judgment, decree or order. Viewed on its terms the section does not limit the origin of such errors or omissions in any manner nor also is there any other reason to restrict its scope. To err is human. As a human being a litigant is as much fallible as a judge. It is therefore, difficult to assume that the section was intended to provide relief against an inadvertant error or omission made by the judge himself and not against such error or omission made by the parties. In my opinion, the section is applicable as much to the errors and omissions made in their pleadings by the parties which are copied in judgement, decree or order as to the errors and omissions made by the courts itself in drawing up such judgment, decree or order. Even the limitation does not stand as a bar to the exercise of the powers by the court under this section. The court can at any time correct the mistake or remove the error. On the facts of the present case it is clear that there was no ambiguity with regard to the identity of the suit land. The suit was based on a sale deed which was filed alongwith the plaint in the court. In fact the sale deed was a part of the plaint. It gave the survey number of the suit land as 1408/366. Neither the court nor also the parties had any doubt that the suit related to the land covered by the sale deed. As such the mistake was not one of identity with regard to the subject matter of the suit but as regards the description and could appropriately be rectified by the court under section 152 C. P. C. even though 6/7 years had elapsed, as the learned counsel for the petitioner put it, since the decree was passed.  5 The Judicial opinion seems to be no different. This is what may be noticed in the following cases: - 6 In Ghulam Ahmad V. Khazir Joo and ors A. I. R. 1970 J&K, 37 it was held by Nair J that where in the plaint, the plan attached to it and the decree, the property was correctly described by metes and bounds in all the particulars except in one particular, namely that of correct survey number and the correction of the survey number would not effect the identity of the plot, it was a fit case where the court should under section 152 allow the amendment of the survey number in the decree. 7 In Anupa Kuer V. Yogendra Jha and ors AIR 1954 Patna, 108 the facts were like this : One Mt. Phulbati Kuer transferred by sale the southern portions of certain plots which constituted her husbandâ„¢s share in the ancestral property. Her daughter sued for recovery of possession on the ground that the sale was without necessity. The plaint omitted to state the direction from which the recovery of possession over suit plots was sought. The decree also omitted to give such direction. The plaintiff decree holder applied for amendment. The trial court refused the amendment On appeal Choudhary J allowed the amendment observing: Mr. A. C. Roy for the petitioner has contended that in the present case there was no ambiguity with regard to the identity of the subject matter of the suit. The impugned sale deed clearly mentioned that Musament Phulbati Kuer had transferred the Southern portion of the plots in question and the title suit was brought to get a declaration that the said sale deed was not binding on the plaintiff and that she was entitled to recover possession over the land so conveyed by her mother Musammat Phulbati Kuer. Neither the court nor the parties concerned had any misapprehension that the subject -matter of the suit was the southern portions of the plots in question as conveyed under the said sale deed, and, therefore, the mistake that had occurred was not one of identity of the properties that were being dealt with in that suit but only a mistake of description which ought to have been amended." 8 In Shahzad Khan V Sheo Kumar AIR 1957 All 133 Bhargava J held that the Court can under section 152 amend the clerical error in a decree although the error may have occurred on account of the mistake of the parries themselves in their pleadings and this mistake in the decree was on account, of its being copied from the plaint. It was further held that in such case it is not necessary to amend the plaint itself and that it is enough to amend the decree 9 In these circumstances I find no force in this petition which is hereby dismissed. I make no order as to costs.