Unfortunately, in the schedule to the plaint the suit property has been described, amongst other, as Municipal Holding No. 22 though actually the same should Municipal Holding No. 18. Consequently, the said mistake cropped up in the body of the judgment and in the decree.
21. The said mistake was detected at the stage of delivery of possession of the suit premises from the report of the nazir.
22. The plaintiffs, accordingly, made an application Under Section 152 of the Code of Civil Procedure for correction of the schedule to the plaint, the judgment and the decree by correcting the Municipal Holding No. as 18 instead of the Municipal Holding No. 22.
23. After going through the depositions of the witnesses for both the parties and the other materials on record I am of the firm view that it is a case of misdescription of the suit property and not a case of mistaken identity of the same.Schedule to the plaint, the judgment and the decree can be corrected.
Sri Dilip Kr. Chatterjee vs Sri Narayandas Mukherjee And Ors. on 22 April, 1993
Equivalent citations: (1993) 2 CALLT 472 HC; AIR 1994 NOC 89 (Cal)
Bench: N K Bhattacharyya
1. In a suit for eviction from the suit premises by the plaintiff, Smt. Lohit Barani Devi against the present petitioner/defendant on the ground of default and sub-letting in the Court of 2nd Munsif, Baharampur being Title Suit No. 196/72 the plaintiff got a judgment and decree in her favour on contest.
2. The defendant preferred an appeal against the said judgment and decree in the Court of 1st Additional District Judge, Murshidabad, and the said judgment and decree was confirmed on 15-7-81 in Title Appeal No. 220 of 1978.
3. In the schedule to the plaint the suit property has been described as :- One storied building being Municipal Holding No. 22 on Barakuthi Road within Baharampur Municipality, P.S.-Baharampur Town and Mouja-Khagra upon land measuring 5 decimals in Dag No. 785, C.S. Khatian No, 416.
4. During the pendency of the suit the original plaintiff Smt. Lohit Baram Debi died and in her place and stead her heirs and successors were substituted as plaintiffs.
5. In the suit six witnesses were examined on behalf of the plaintiff and two on behalf of the defendants,
6. In the plaint it was alleged that one 'Swargadham Sevak Sangha', a registered society, was a tenant under Lohit Barani Debi and the said Sangha sub-let the suit premises to the State of West Bengal without consent of the plaintiff and the District Inspector of Schools (Primary Education), Murshidabad, defendant No. 4, started a Primary School in the premises.
7. All the witnesses for the plaintiff and defendants referred to that school in the suit premises in their depositions and no dispute arose as to the identity of the suit premises.
8. The plaintiffs levied an execution and the nazir returned the writ of possession with the report that he could not deliver the possession of the suit premises as the decree-holders identified Municipal holding No. 18 as suit premises instead of Municipal Holding No. 22.
9. The plaintiffs/decree-holders, thereafter, made an application before the Learned Munsif, 2nd Court, Baharampur, in Title Suit No. 196/92 Under Section 152 of the Code of Civil Procedure for amendment of the schedule of the plaint, the judgment and the decree by amending the same from Municipal Holding No. 22 to Municipal Holding No. 18, Barakuthi Road.
10. The said prayer was allowed by the learned Munsif by order No. 169 dated 6-6-86.
11. The General Secretary of the defendant, 'Swargadham Sevak Sangha' moved this Court in Revision impugning the said order, and obtained an order of ad interim stay.
12. Mr. Dipak Kumar Mukherjee, the learned Advocate for the petitioner, challenged the said order on twin grounds :-
(a) Such amendment cannot be made Under Section 152 of the Code of Civil Procedure.
(b) It is not a case of misdescription of the suit property but of mistaken identity.
13. Mr. Bhaskar Ghosh, the learned Advocate for the plaintiff /opposite parties No. 1 to 5, on the other hand, contended that the plaint, judgment and the decree can be amended Under Section 152 of the Code of Civil Procedure. In the next place he contended that it is a case of misdescription of the property and not of mistaken identity of the same.
14. Mr. Ghosh cited the cases of Kamala Bala Garai v. Samar Sen reported in 1990(I) CLJ 550 and an unreported decision of a Division Bench of this Court in case of Sujata Mitra v. Gopal Das Jawasal passed in FA 124 of 1981 as authorities on the point that the Court has the power and jurisdiction to allow amendment of the plaint, the judgment and the decree Under Sections 151, 152 and 153 of the Code of Civil Procedure.
15. I have given my anxious consideration to the respective submissions of the learned Advocates for the parties, the materials on record and the judgments cited.
16. In Sujata Mitra's case (supra) a Division Bench of this High Court has enunciated the principle that the decree, the judgment and the plaint can be corrected Under Sections 151, 152 & 153 of the Code of Civil Procedure, for ends of justice.
17. In Kamala Bala Garai's case (supra) a similar view has taken by another Division Bench of this Court with the extension of that principle that even at the stage of execution such amendment can be made.
18. In the foregoing paragraphs of this Judgment I have already pointed out that six witnesses on behalf of the plaintiffs and two witnesses on behalf of the defendants have been examined and they referred to the suit premises without any dispute about the identity of the suit premises.
19. They have also deposed that in the suit premises there is a school and that Smt. Lohit Barani Debi is the owner of the suit premises.
20. Unfortunately, in the schedule to the plaint the suit property has been described, amongst other, as Municipal Holding No. 22 though actually the same should Municipal Holding No. 18. Consequently, the said mistake cropped up in the body of the judgment and in the decree.
21. The said mistake was detected at the stage of delivery of possession of the suit premises from the report of the nazir.
22. The plaintiffs, accordingly, made an application Under Section 152 of the Code of Civil Procedure for correction of the schedule to the plaint, the judgment and the decree by correcting the Municipal Holding No. as 18 instead of the Municipal Holding No. 22.
23. After going through the depositions of the witnesses for both the parties and the other materials on record I am of the firm view that it is a case of misdescription of the suit property and not a case of mistaken identity of the same.
24. Accordingly, in my opinion the impugned orders should be sustained.
25. In the result the revisional application is dismissed without any cost. The order of ad interim stay stands vacated.
No comments:
Post a Comment