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KM. MONA SINGH IN THE MATTER OF GOODS OF LATE BRIJ RA SINGH

High Court of Judicature at Allahabad

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Km. Mona Singh In The Matter Of Goods Of Late Brij Ra Singh - TESTAMENTARY CASES No. 5 of 2004 [2005] RD-AH 6986 (6 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Testamentary Case No. 5 of 2004

(Under Act No. XXXIX of 1925 and Chapter XXX,

Rule 6 of the Rules of Court)

Km. Mona Singh, aged about 19 years, daughter of late Brij Raj Singh, resident of Village-Hasanpur, Post Office-Lakshagriha, Tehsil Handia, District-Allahabad ........................................................Petitioner

In the mater of

The Goods of

Late Brij Raj Singh, son of Raj Bahadur Singh, Village-Hasanpur, Post Office-Lakshagriha, Tehsil Handia, District-Allahabad................................................................................Deceased

Hon. S.P. Mehrotra, J.

(1) Civil Miscellaneous Application Number 140587 of 2005 (Paper No.A-11).

(2) Civil Miscellaneous Application Number of 140589 of 2005 (Paper No.A-10).

Testamentary Case Number 5 of 2004 was filed by Kumari Mona Singh (Petitioner), inter-alia, praying for grant of Letters of Administration in respect of the estate of the deceased late Brij Raj Singh which he possessed of at the time of his death.

By the Order dated 16.2.2005, this Court directed for grant of Letters of Administration to Kumari Mona Singh (Petitioner) in respect of the estate of the deceased (Brij Raj Singh).  Relevant portion of the said Order dated 16.2.2005 is quoted below:

"Let Letters of Administration be granted to Kumari Mona Singh (petitioner) in respect of the estate of the deceased (Brij Raj Singh) on payment of ad-valorem Court Fee on the estate of the deceased (Britain R. Singh) and after the Registrar General gives a Certificate under Chapter XXX, Rule 9 of the Rules of the Court regarding the sufficiency of the Court Fee and after the requisite administration bond is given by the said Kumari Mona Singh (petitioner) as per the provisions of Chapter XXX, Rule 2 6 of the Rules of the Court, 1952.

"I order accordingly."

In the said Order dated 16.2.2005, this Court, referring to the averments made in paragraph 7 of the Testamentary Petition, observed as follows:

             

"It is, interalia, stated in paragraph 7 of the Petition that so far as the petitioner has been able to ascertain or is aware, the amount of assets, which are likely to come in the petitioner's hands as assets of the deceased, is Rs. 7,35,459/-- as detailed in the Schedule to the Affidavit of Valuation."

This Court, referring to paragraph 3 of the Affidavit of Valuation, further observed as under:

               

"In paragraph 3 of the said Affidavit of Valuation, it is stated that the said assets, exclusive of what the deceased (Brij Raj Singh) may have possessed of inclusive of all rights, interest and dividends and increased value since the date of death of the deceased are under the value of Rs.7, 35,459/--."

It is apparent that the figure of Rs.7,35,459/-- , mentioned in the above paragraphs of the Order dated 16.2.2005, is based on the contents of  paragraph 7 of the Testamentary Petition and those of paragraph 3 of the Affidavit of Valuation.

Paragraph 7 of the Testamentary Petition is as follows:

"7. That so far as the petitioner has been able to ascertain or is aware, the amount of assets which are likely to come in petitioner's hands as assets of the deceased is Rs.7,35,459/-- as detailed in the schedule to affidavit of valuation."

It may be mentioned that identical averments have been made in paragraph 8 of the Affidavit accompanying the Testamentary Petition.

Paragraph 3 of the Affidavit of Valuation is reproduced below:

"3. That the said assets, exclusive of what the deceased may have possessed of inclusive of all rights, interest and dividends and increased value since the date of death of deceased are under the value of Rs.7,35,459/--."

The figure of Rs.7,35,459/-- , mentioned in paragraph 7 of the Testamentary Petition and in paragraph 8 of the Affidavit accompanying the Testamentary Petition as also in paragraph 3 of the Affidavit of Valuation, is evidently based on the Schedule to the Affidavit of Valuation.

However, a perusal of the Schedule to the Affidavit of Valuation shows that the total value of the assets of the deceased has been mentioned as Rs.7,34,459/--, instead of Rs.7,35,459/-- as mentioned in paragraph 7 of the Testamentary Petition and in paragraph 8 of the Affidavit accompanying the Testamentary Petition as also in paragraph 3 of the Affidavit of Valuation.

It is relevant to refer to various items mentioned in the Schedule, which are as under:

1. Savings Bank Account No. 7624      with State Bank of India, Handia, Allahabad ...........................................................Rs. 1,500.00

2. Savings Bank Account No. 101-015327 with Corporation Bank, Lodhi Road Branch........................................................Rs. 3,500.00

3. Savings Bank Account No. 69250 with Dena Bank.....................................................................Rs. 4,194.00

4.Post retirement dues of late Brij Raj Singh, with Rural Electrification Corporation Limited ............................................ Rs.7,25,265.00

Total.........................Rs.7,34,459.00

_________________________________

It is pertinent to note that along with the Testamentary Petition, the Petitioner filed various documents, as per the details given in the List of Documents. The said documents include the relevant extracts of the Pass Books in respect of the aforesaid three Savings Bank Accounts. The said extracts of the Pass Books appear at pages 18, 19 and 20, respectively of the Paper Book of the Testamentary Petition.

A perusal of the said extracts of the Pass Books shows that the figure of Rs.4,194.00, shown in the Schedule to the Affidavit of Valuation in respect of the Savings Bank Account mentioned at Serial Number (3) above, tallies with the figure occurring in the extract of the Pass Book of the said Savings Bank Account occurring at page 20 of the Paper Book of the Testamentary Petition. However, the figure of Rs.1,500.00, shown in the Schedule to the Affidavit of Valuation in respect of the Savings Bank Account mentioned at Serial Number (1) above, does not tally with the figure occurring in the extract of the Pass Book of the said Savings Bank Account occurring at page 18 of the Paper Book of the Testamentary Petition. As per the extract of the Pass Book, the figure should be Rs. 150.00. Similarly, the figure of Rs.3,500.00, shown in the Schedule to the Affidavit of Valuation in respect of the Savings Bank Account mentioned at Serial Number (2) above, does not tally with the figure occurring in the extract of the Pass Book of the said Savings Bank Account occurring at page 19 of the Paper Book of the Testamentary Petition. As per the extract of the Pass Book, the figure should be Rs.1,271.40.

It will, thus, be seen that mistake has occurred in mentioning the amounts in respect of Items Nos. (1) and (2) in the Schedule to the Affidavit of Valuation. Consequently, the mistake has occurred in mentioning the total value of the assets in the said Schedule as Rs.7,34,459.00.

Further mistake has occurred in mentioning the total value of the assets in paragraph 7 of the Testamentary Petition, and in paragraph 8 of the Affidavit accompanying the Testamentary Petition, as also in paragraph 3 of the Affidavit of Valuation as Rs.7,35,459/- , which is different from the figure mentioned in the Schedule to the Affidavit of Valuation, namely, Rs.7,34,459/-. As noted above, even the figure of Rs.7,34,459/--, mentioned in the Schedule to the Affidavit of Valuation, is not correct.

In the circumstances, the Petitioner has filed the afore-mentioned Civil Misc. Application No. 140587 of 2005 (Paper No. A-11), inter-alia, praying that the Petitioner be permitted to amend the Testamentary Petition, as mentioned in the said Application. The said Application (Paper No. A-11) is supported by an affidavit, sworn by Kumari Mona Singh on 19th July, 2005.

It is, inter-alia, stated in the said Application (Paper No. A-11) that inadvertently in paragraph 7 of the Testamentary Petition and in paragraph 8 of the Affidavit accompanying the Testamentary Petition, the valuation of the estate left by the deceased has been described as Rs.7,35,459.00 instead of Rs.7,30,880.60; and that the error is purely typographical/clerical and can be corrected even at this stage; and that the Petitioner is also filing a fresh Affidavit of Valuation.

It is, inter-alia, further stated in the said Application (Paper No. A-11) that the Petitioner be permitted to amend the Testamentary Petition by deleting the figure "Rs.7,35,459/-" occurring in paragraph 7 of the Testamentary Petition, and writing in its place, the figure "Rs.7,30,880.60".

It may be mentioned that alongwith the said application (Paper No. A-11), the petitioner has filed a fresh Affidavit of Valuation, sworn by Mona Singh (petitioner) on 19.7.2005 alongwith a Schedule annexed as Annexure-1 to the said Affidavit of Valuation.

The Petitioner has also filed Civil Misc. Application No. 140589 of 2005 (Paper No.A-10), inter-alia, praying that the Judgment/Order dated 16.2.2005 be amended, as mentioned in the said Application.

The said Application is supported by an affidavit, sworn by Kumari Mona Singh on 19th July, 2005.

It is, inter-alia, stated in the said Application that inadvertently in paragraph 7 of the Testamentary Petition and in paragraph 8 of the Affidavit accompanying the Testamentary Petition, the valuation of the estate left by the deceased has been transcribed as Rs.7,35,459.00 instead of Rs.7,30,880.60; and that the Judgment/Order dated 16.2.2005 be amended by deleting the figure "Rs.7,35,459/-" appearing in the Judgment/Order dated 16.2.2005, and writing in its place, the figure "Rs.7,30,880.60".

I have heard Sri P. K. Ganguly, learned counsel for the Petitioner, and perused the record.

Shri Ganguly has made the following submissions:

1. In view of the provisions of Section 268 of the Indian Succession Act, 1925, the Code of Civil Procedure applies to the proceedings for grant of Probate and Letters of Administration. The provisions of Section 300 of the Indian Succession Act, 1925 provides that the High Court has concurrent jurisdiction with the District Judge in regard to the grant of Probate and Letters of Administration.

2. In view of the provisions of Section 152 of the Code of Civil Procedure, 1908, the Court may correct the errors in the judgment, decree or order, arising from any accidental slip or omission.  Such errors may occur in the judgment, decree or order on account of the errors in the pleadings of the parties, arising from any accidental slip or omission.

In such a situation, the Court may permit the amendment of the pleadings to correct the errors occurring in the pleadings, and may accordingly correct the errors occurring in the judgment, decree or order.

Reliance in this regard is placed by the learned counsel for the Petitioner on the following decisions:

(A) Udhishter Singh & another v. Mt. Kausilla & others,  A. I. R. 1917 Allahabad 443(DB).

(B) Yerramilli Satyanarayana Rao & another v. Kandukuri Purnayya & others, A. I. R. 1931 Madras 260.

(C) Shiam Lal v. Mt. Moona Kuar & others, A. I. R. 1934 Oudh 352.

(D) Ruhulghani & others v. B. Uma Shankar, A. I. R. 1944 Oudh 5.

(E) Appat Krishna Poduval v. Lakshmi Nathiar & others,        A. I. R. 1950 Madras 751.

(F) Mt. Anupa Kuer v. Yogendra Jha & others, A. I. R. 1954 Patna 108.  

(G) Shahzad Khan v. Pt. Sheo Kumar, A. I. R. 1957 Allahabad 133.

(H) Smt. Vidyavati Bai v. Smt. Parkash Vati Devi & another, A. I. R. 1976 Delhi 275.

(I) Rania v. Smt. Kamla Devi & another, A. I. R. 1976 Himachal Pradesh 57.

(J) Shankergouda v. Garangouda & others, A. I. R. 1976 Karnataka 204.

(K) Order dared 2.11.1994 passed by this Court in Testamentary Case No. 3 of 1994 (In the matter of the Goods of Late Mr. Justice Manulal Chunilal Desai).

In view of the above legal position, the prayers made in the afore-mentioned applications deserve to be granted.

3. Even if the amendment of pleadings cannot be permitted under Section 152 of the Code of Civil Procedure, 1908, still the same can be permitted under Section 151 of the Code of Civil Procedure, 1908. Powers under Section 151 of the Code of Civil Procedure, 1908 are unlimited.  The Court can pass any order in the interest of justice or to prevent the abuse of  the process of Court. If there is no express bar to the grant of a relief in the Code of Civil Procedure, 1908, the Court may pass suitable order in the interest of justice or to prevent the abuse of the process of Court. Powers under Section 151 of the Code of Civil Procedure are in addition to and complimentary to the powers which are conferred by the Code.

There is nothing in the Code of Civil Procedure which prohibits the Court from permitting amendment after the judgment.  There is no provision that Court becomes functus officio after judgment.  In fact, Section 152 of the Code of Civil Procedure gives power to correct accidental slip or mistake.

There is nothing in the Code of Civil Procedure which prohibits grant of prayers made in the afore-mentioned applications.  The Court has all the necessary powers under Section 151 to pass suitable orders on the said applications.

Reliance in this regard is placed on the decision of the Apex Court in Shipping Corporation of India Ltd. v. Machado Brothers and others, (2004) 11 SCC 168.

I have considered the submissions made by the learned counsel for the Petitioner.

Besides the decisions relied upon by the learned counsel for the Petitioner, the following further decisions are relevant on the question under consideration:

I.Allah Dia & another v. Rahimuddin & others, 1924 ALJ 215.  

II. Ganesh v. Sri Ram Lalaji Maharaj & others, A.I.R. 1973 Allahabad 116 (FB).

III. Mohinder Singh & others v. Teja Singh & others, A.I.R. 1979 P. & H. 47.

IV. Decision of this Court in Civil Revision No. 1137 of 1979, Harbans Lal Tauh v. Allahabad Bank Ltd., Ghaziabad, decided  on 8.9.1981.[Reported in 1981 ALJ (NOC) 122].

In order to appreciate the controversy involved in the present case, it is necessary to refer to the provisions of Sections 268 and 300 of the Indian Succession Act, 1925 and Sections 151, 152 and 153 of the Code of Civil Procedure.  

Section 268 of the Indian Succession Act, 1925 is reproduced below:

"268. Proceedings of District Judge's Court in relation to probate and administration.

The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908".

Section 300 of the Indian Succession Act, 1925 provides as follows:

"300. Concurrent jurisdiction of High Court.

(1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.

(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras and Bombay shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has by a notification in the Official Gazette, authorised it so to do."

Section 151 of the Code of Civil Procedure is as under:

"151. Saving of inherent powers of Court.-  Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

Section 152 of the Code of Civil Procedure lays down as follows:

"152.  Amendment of judgments, decrees or orders.- 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."

Section 153 of the Code of Civil Procedure is as under:

"153. General power to amend.-  The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."

In view of the provisions of Section 268 of the Indian Succession Act, 1925, the provisions of the Code of Civil Procedure, including Sections 151, 152 and 153 thereof apply to the proceedings for grant of Probate and Letters of Administration in the Court of the District Judge.

Section 300 of the Indian Succession Act, 1925 provides that the High Court has concurrent jurisdiction with the District Judge in regard to all the powers conferred under the Indian Succession Act, 1925 upon the District Judge.

Hence, in view of Section 300 of the Indian Succession Act, 1925, the High Court has concurrent jurisdiction with the District Judge in regard to the grant of Probate and Letters of Administration. Consequently, in view of the provisions of Section 268 of the Indian Succession Act, 1925, the provisions of the Code of Civil Procedure, including Sections 151, 152 and 153 thereof apply to the proceedings for grant of Probate and Letters of Administration before the High Court.

Therefore, the provisions of Sections 151, 152 and 153 of the Code of Civil Procedure are applicable to the present case under consideration.

Let us first take up Section 152 of the Code of Civil Procedure. Section 152 of the Code gives power to the Court to correct clerical or arithmetical mistakes in judgments, decrees or orders. It further gives power to the Court to correct errors arising in judgments, decrees or orders arising from any accidental slip or omission.

This power conferred by Section 152 can be exercised by the Court at any time.  Further, the power may be exercised by the Court either on its own motion or on the application of any of the parties.

Section 152 of the Code of Civil Procedure has been the subject matter of various decisions referred to above.  Let us discuss the said decisions.

In Udhishter Singh case (supra), properties mortgaged to the prior mortgagee as well as to the subsequent mortgages were mentioned in the preliminary decree. However, certain additional properties mortgaged to the prior mortgagee (but not mortgaged to the subsequent mortgages) were not mentioned in the preliminary decree. The question was whether such additional properties could be mentioned in the final decree, even though the same were not mentioned in the preliminary decree.  

Piggott, J. held as follows (at page 445 of the said  A. I. R.):

"....  so long as a Court is seized of the entire case, it seems to me that it is entitled to clear the any ambiguity existing in the preliminary decree and I would go further and say that it is entitled to frame its final decree so as to put right any patent error or omission which may be discoverable in the preliminary decree."

Walsh, J. in his concurring judgment held as under (at page 446 of the said A. I. R.):

"It is in such cases, and such cases only a Court is not only entitled but is bound in my humble judgment to brush aside a mere technicality which stands in the way of justice and to amend such mistakes, slips or omissions as may appear to prevent justice in order to give effect to the real and substantial rights of the parties."

In Allah Dia case (supra), there was mistake in the application. The result was that the order which followed the application was in a mistaken form, and the decree which followed the order, followed the same mistake.  It was held as follows (Head-note of the said ALJ):

"When a mistake in the final form of an order is due to an original mistake made by the party in his plaint or in a subsequent application (such as an application for obtaining a final decree in a mortgage suit), the court has jurisdiction to correct the mistake, and to pass further orders consequential on such amendment."

(Emphasis supplied).

In Yerramilli case (supra), there was mistake in the survey numbers of the mortgaged properties, as mentioned in the mortgage-deed. As a result, erroneous survey numbers crept into the plaint schedule. The said survey numbers, as mentioned in the plaint schedule, were copied in the preliminary decree, and as such, mistake occurred in the preliminary decree.

In the circumstances, the plaintiffs in the suit moved an application under Section 152 of the Code of Civil Procedure to amend the preliminary decree. The said application having been dismissed by the Subordinate Judge, the plaintiffs filed a Civil Revision before the Madras High Court.

The Madras High Court held that where wrong description of the mortgaged property was given through mistake or inadvertence in the mortgage deed, and it was copied in plaint and decree based on the mortgage, it was open to the plaintiffs to apply under Section 152 Code of Civil Procedure to have the description corrected.

Accordingly, the Madras High Court allowed the Civil Revision, and remitted the matter to the Subordinate Judge for dealing the application under Section 152 Code of Civil Procedure on the merits.

Pandalai, J. observed as under (at page 262 of the said A.I.R.):

"The object of empowering the Court to correct decrees and orders is to correct errors, and if it may be shown that an alleged mistake falls within the class of errors dealt with by Section 152 it seems to put an unnecessary hindrance upon the power to do justice which the section gives, to say that the only mistakes of which the Court can take cognizance are those made either in the plaint or in subsequent documents in Court.."

(Emphasis supplied).

It was further observed as follows (at page 263 of the said A. I. R.):

"The net result of the authorities appears to me to be that there is nothing which limits the power of the Court under section 152 to correcting errors, mistakes and omissions, which arose in the suit and there is nothing which prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the plaint. In my opinion, a suit for rectification although it may have been possible is not only remedy...."

(Emphasis supplied).

Reference was made by the Madras High Court (at page 262 of the said A. I. R.) to the following passage from the decision of the Privy Council in Somasundaram Chettiar v. Veluswamy Naicker, [1914] 22 I.C. 774:

"Following the ruling in Narayanaswami v. Natesa, [1893]16 Mad.424, we hold that the time when the clerical errors (provided they are in this case palpably clerical errors) were first introduced in the transactions or proceedings between the parties is immaterial and that the Court has got power to amend such clerical errors if they are found in the decree without the necessity of having the prior pleadings, in which the same errors had formerly appeared, themselves amended as a preliminary requisite to the amendment of the decree."

(Emphasis supplied).

In Shiam Lal case (supra), the khasra number of the grove mortgaged was wrongly mentioned in the plaint as well as in the preliminary decree and the final decree.

The plaintiff applied for amendment of the plaint, preliminary decree and final decree in respect of the wrong description of the mortgaged property contained therein.

The Munsif, Sitapur dismissed the said application for amendment.

Thereupon, the plaintiff filed Civil Revision under Section 115 Code of Civil Procedure.

Nanavutty, J. allowed the Civil Revision, set-aside the order of the Munsif, Sitapur, and directed that the amendments prayed for be made.

It was observed as under (at page 353 of the said   A. I. R.):

"... (U)nder Section 152, Civil Procedure Code, errors in judgments and decree should be corrected by amendment, and if those errors followed from clerical or accidental mistakes committed in the plaint or other proceeding, it was open to the Court to ascertain by inquiry whether any accidental slip had occurred, and to rectify it if the real points at issue were not affected thereby.................(T)he Civil Procedure Code was not exhaustive, and that judicial tribunals had always, when necessity arose, acted upon the assumption of their being possessed of an inherent power to act ex debito justitiae, and to do that real and substantial justice for the administration of which alone they exist. "

It was further observed as follows (at page 354 of the said A. I. R.):

"...(W)here there was a clear case of clerical or arithmetical mistake or of an error arising from an accidental slip or omission in the judgment, decree or order, the Court could correct the mistake or error independent of the fact that the same mistake or error could have been corrected by a Court of appeal."

"... The mortgage -- deed upon which the plaintiff sued clearly shows that the grove which was mortgaged  ...........................................ently just and equitable and should have been allowed by the learned Munsif. His refusal to amend the plaint, judgment and decrees was tantamount to a refusal to exercise a jurisdiction which was legally invested in him by the provisions of Sections 151 and 152, Civil Procedure Code, and the plaintiff is therefore entitled under Section 115, Civil Procedure Code, to approach this Court to set-aside the order of the lower Court refusing to grant the application for amendment of the plaint, judgment and decrees as prayed for..."

(Emphasis supplied).

In Ruhulghani case (supra), the boundaries of certain property, which was the subject of the suit, had been incorrectly described in the mortgage deed. This resulted in similar mistakes in the plaint, decrees and sale certificate. The mistake was detected when the warrant of delivery of possession on the basis of sale certificate was sought to be executed.

In the circumstances, the decree-holder moved an application for amendment. The Court, which had passed the decree, allowed the said application for amendment of the boundaries in the plaint and decrees.

Thereupon, Civil Revision under Section 115 Code of Civil Procedure was filed.

Dismissing the said Civil Revision, it was held as follows (at page 7 of the said A.I.R.):

".........................We find upon a review of these cases that the more general opinion is that where a clerical mistake has occurred by inadvertence in a mortgage deed, which mistake has been repeated in the plaint and decrees, the Court which passed the judgment has power in execution to amend the decrees under Ss. 151 and 152, Civil P.C., and that this view has been adopted by this Court. It has been found by the Court below that the mistake alleged had occurred in the mortgage deed which gave rise to this litigation; and there is clearly no reason to doubt the correctness of this finding since it is not disputed by the applicants. It is clearly desirable in the interest of justice that the amendment should be made, and we can see no good reason therefore to interfere with the order passed. We accordingly dismiss the application with costs. The stay order of 22nd January, 1940 is vacated."

(Emphasis supplied)

In Appat Krishna Poduval case (supra), there was error in survey numbers of an item of property in plaint schedule, and as a result, the said error was carried over in decree schedule. While the matter was pending in execution, the plaintiffs filed an application for amendment of the plaint schedule and the preliminary decree for striking out incorrect survey numbers and substituting correct survey numbers.

The District Munsif allowed the application for amendment, whereupon Civil Revision was filed before the Madras High Court.

The Madras High Court held that where an application was filed for correction of an error as regards the survey numbers of an item of property in the plaint schedule and the decree schedule and there was no dispute as regards the identity of the property or boundaries to it, the amendment could be allowed under Section 152 Code of Civil Procedure. It was further held that the assignment deed of the property also had the same errors could not disentitle the plaintiffs to have the errors set right if they were entitled to it under the Code of Civil Procedure.  It was further laid down that the amendment could not be refused on the ground that the decree sought to be amended was barred by limitation.  [See Headnote (a) of the said A. I. R.].

Laying down the said propositions, the Madras High Court upheld the order of the District Munsif and dismissed the said Civil Revision.

In Mt. Anupa Kuer case (supra), one Boudhu Jha died leaving a widow, Mt. Phulbati Kuer, and a daughter, Mt. Anupa Kuer. Boudhu Jha had a half share in the ancestral property consisting of seven plots. The widow Mt. Phulbati Kuer as guardian of Anupa Kuer executed a sale deed in respect of southern portions of the said plots which constituted her husband's share in ancestral property.

After the death of Mt. Phulbati Kuer, Mt. Anupa Kuer filed a suit on the allegation that the sale deed in question was executed without any legal necessity and it was not binding on her and prayed for recovery of possession of the land purported to have been sold by the said sale deed.

In the plaint, it was omitted to mention as to from which direction the plaintiff claimed recovery of possession over those plots, but throughout the plaint, it was made very clear that the plaintiff was challenging the said sale deed by which the southern portions of those plots were conveyed and that she wanted recovery of possession of the portions which had been sold by that sale deed.

The Trial Court decreed the said suit in favour of Mt. Anupa Kuer. It was held that the sale deed in question was not binding on her and she was entitled to get a decree for recovery of possession of the land conveyed by that sale deed. The decree, having been drawn in accordance with the plaint, naturally omitted to mention as to from which direction the delivery of possession was to be given to the plaintiff -- decree holder.

The decree was affirmed in appeal.  However, when the plaintiff -- decree holder applied for delivery of possession, she was opposed by the defendants on the ground that there being no mention in the decree as to from which direction in the several plots the plaintiff -- decree holder was to get possession.

In view of the said opposition by the defendants, the plaintiffs-decree holder could not be given delivery of possession through Court.  The prayer of the plaintiff -- decree holder for delivery of possession was rejected.

Thereafter, the plaintiff -- decree holder filed an application in the Appellate Court which had affirmed the decree on appeal.  By the said application, the plaintiff -- decree holder sought amendment of the decree.

The said Appellate Court to the view that there was  ambiguity with regard to the identity of the property which was the subject matter of the suit, and, therefore, the amendment of the decree could not be allowed.

Thereupon, the plaintiff -- decree holder filed Civil Revision before the Patna High Court.

The Patna High Court allowed the said Civil Revision, set-aside the order of the Court below, and directed that the decree be amended as prayed for.

It was observed as under (at page 109 of the said  A. I. R.):

"In the present case, it is quite clear  that what was the subject matter of the suit was the land conveyed under the sale deed dated 20.6.1941, that is to say, the southern portions of the plots in question and that the plaintiff got a decree for recovery of such portion of the suit land as were conveyed by the said sale deed.  There being no ambiguity as to the identity of the subject matter of the suit, the Court should have exercised its jurisdiction and ought to have amended the decree, and, in not doing so, has failed to exercise its jurisdiction."

In Shahzad Khan case (supra), by a mortgage deed dated 26.7.1901, 25 plots were mortgaged. The area of the plots given in the mortgage deed was 40 bighas , 8 biswas and 14 biswansis. In the plaint, the property was described as 29 plots measuring 19 bighas.

The suit was decreed. The entire decretal amount was deposited and the property redeemed. On account of wrong description in the plaint, the same mistake cropped up in the decree.

An application under Section 152, Code of Civil Procedure, was filed seeking amendment of the decree in the suit. The Court below dismissed the application for amendment.

Thereupon, a Civil Revision was filed before this Court.

This Court allowed the Civil Revision, set-aside the order of the Court below, and ordered the decree be amended as prayed for.

It was observed as under (paragraph 4 of the said A.I.R.):

"There is ample authority for the proposition that under Section 152 it is open to the appellate Court to correct mistakes and do justice in the case. The Court can under Section 152 amend a clerical error in a decree although the error may have occurred on account of a mistake of the parties themselves in their pleadings and this mistake in the decree was on account of its been copied from the plaint.  It has further been held that in such cases it is not necessary to amend the plaint itself.  It is enough to amend the decree."

       (Emphasis supplied).

In Ganesh case (supra), the description of the northern and southern boundaries of the property, as mentioned in the decree, did not tally with the actual not turn and southern boundaries of the house on the spot.  The discrepancy was only this: The boundary which was shown as the northern boundary in fact was the southern boundary of the house.  Similarly the southern boundary as shown in the decree was actually the northern boundary.

The said mistake in fact originated in the sale deed in question wherein the mistaken description of the northern and southern boundaries occurred.  In the plaint due to inadvertence the boundaries as given in the sale deed had been copied out.  The mistake, in consequence, was carried to the decree.

There was however, no dispute between the parties at all the material points of time in regard to the identity of the house, which was the subject matter of the suit and of decree.

The mistake was not detected before the Trial Court or before the First Appellate Court or before this Court in Second Appeal.  The mistake came to light when the decree was put in execution and the Amin went to the spot with warrant for delivery of possession.

In the circumstances, two applications were filed before this Court in which prayers were made for the amendment of the plaint as also of the decree.

In view of the apparent conflict between the two decisions -Shuiaatmand Khan v. Govind Behari, A.I.R. 1934 Allahabad 100(2), and Ruhulghana v. B. Uma Shankar, A.I.R. 1944 Oudh 5--, the matter was placed before the Full Bench.

The Full Bench referred to a Division Bench decision of this Court in Aziz Ullah Khan v. Court of Wards, Shahjahanpur, A. I. R. 1932 Allahabad 587, and agreed with the said decision, wherein it was held that such accidental mistakes could be corrected by the Court, apart from the powers exercisable under Section 152 of the Code of Civil Procedure, under the powers exercisable under Sections 151 and 152 of the Code of Civil Procedure, if such correction was necessary for the ends of justice.

The Full Bench observed as under (paragraphs 9 and 11 of the said A. I. R.):

"9.......... We, however, do not considered necessary to discuss these cases, as, in our opinion in the circumstances of the case for the ends of justice corrections can be made or permitted to be made in the plaint as well as the decree, as was held in Aziz Ullah Khan's case by a Division Bench of this Court and in Ruhulgani's case by the Oudh Chief Court.  Besides, we may mention that the Supreme Court in Janakirama Iyer v. P.M. Nilakanta Iyer (A. I. R. 1962 Supreme Court 633) has held that inadvertent or clerical mistake in the decree can be corrected by the High Court under Sections 151 and 152 of the Code of Civil Procedure even during the pendency of an appeal in the Supreme Court.  We are thus of opinion that under the circumstances of the instant case the two applications could be legally entertained and deserve to be allowed."

"11. In the result, both the applications are allowed.  Let amendments be made as prayed.  The parties shall bear their own costs."

(Emphasis supplied).

In Smt. Vidyavati Bai case (supra), a suit for partition and other reliefs was filed by the plaintiff Smt. Vidyavati Bai against Smt. Parkash Vati Devi and others. The parties proposed a settlement by which the entire suit was compromised, but there being minor defendants (namely, defendant numbers 4 and 5), the leave of the Court was sought on behalf of the minor defendants.  The application moved in this behalf was signed, inter-alia, by the defendant number 2 (father of the defendant numbers 4 and 5) in his personal capacity and as guardian of minor defendants 4 and 5.  It was not signed by the defendant number 3 (mother of the defendant numbers 4 and 5) in her capacity as guardian-ad-litem. The defendant number 2 was the natural guardian of his minor children and he signed the application in this capacity, but the defendant number 3 did not sign the application in her capacity as guardian --ad --litem.  In the application, it was is stated that the defendant number 2 was the natural guardian, father and guardian --ad -litem of the defendant numbers 4 and 5.  There was thus an accidental slip or omission by the parties inasmuch as they were under an erroneous impression that that the defendant number 2 was also guardian-ad-litem of the defendant numbers 4 and 5 in addition to his being natural guardian.

On the aforementioned application, I.A. No.1162/75, an order was passed by the Delhi High Court on 2nd May, 1975 granting the defendant number 2 leave to compromise the suit on behalf of the minor defendants.  

Apparently, therefore, the leave was granted to the defendant number 2, i.e., natural guardian, and not to the defendant number 3, i.e., guardian-ad-litem. Acting on the order, the parties then proceeded to accept the terms of the compromise and a judgment dated 2nd May, 1975, was passed by the Delhi High Court accepting the compromise and directing a decree to be passed in terms thereof as noted in the aforementioned judgment.

Before the decree could be drawn up, an application, being I.A. No.37/76, under Sections 151, 152 and 153 of the Code of Civil Procedure was moved to make necessary amendment in the orders and judgment passed on 2nd May, 1975, with a view to making them effective in respect of the defendant numbers 4 and 5 after permission had been granted to the guardian --ad -litem.

Noticing the facts of the case, the Delhi High Court observed as under (paragraph 3 of the A. I. R.):

"......It is also otherwise obvious, that there has been an accidental slip or omission, because there was an order of the Court appointing defendant number 3 as guardian --ad --litem.  The leave has been given to defendant number 2 to enter into the compromise.  In fact, defendant number 2 being the natural guardian of defendants numbers 4 and 5 was, in Hindu Law, entitled to seek such leave but, as defendant number 3 had been appointed guardian --ad --litem, it was also necessary for her to seek the leave of the Court.  The omission has now been brought to the notice of the Court, the previous application was also signed by defendant number 3 in her personal capacity and the present application has been signed in her personal capacity and also as guardian-ad-litem of defendant numbers 4 and 5.  It has been stated on her behalf that but for the accidental slip or omission, she would certainly have signed the original application on behalf of defendant numbers 4 and 5 in her personal capacity and also as their guardian-ad-litem along with the other parties..........."

The Delhi High Court held as follows (paragraphs 6, 7 and 8 of the said A. I. R.):

"6. I think that the result has largely to depend on the nature of the mistake. If the mistake is an accidental mistake, i.e., an accidental slip or omission in which, for instance, the plaintiff misdescribes the property claimed in the suit and thereafter gets a decree, it may be open to the defendant to say that if the description was correct, he would have taken a different defence.  Therefore, the nature of the mistake and the nature of the prejudice caused to the parties by having the omission corrected has a large bearing on the way in which the Court is to exercise jurisdiction under Section 152 of the Code of Civil Procedure.  Undoubtedly, I must note that the power to amend is uncontrolled.  There is nothing in the Section indicating that the error must be one committed by the Court itself and not one which has been brought about due to some other reason.  It is a different matter, when the Court having found that there is a mistake, may still refrain from correcting it in certain circumstances.  For instance, if a plaintiff brings a suit mentioning the sum claimed in the suit as Rs.1,500/-- and then later claims that the suit was really for Rs.15,000/--, the Court may say that the sort of mistake cannot be rectified under Section 152 of the Code, even though the Court may find that in fact it was a mistake."

"7. I do not, however, agree at all with the view that the mistake, error or omission giving rise to the exercise of jurisdiction under Section 152 of the Code of Civil Procedure must necessarily be one committed by the Court itself.  The jurisdiction arises as soon as the Court is satisfied that there has been an accidental slip or omission.  In the present case, there is obviously an accidental slip or omission.  That accidental slip or omission had occurred first in the application seeking leave to enter into the compromise on behalf of defendants numbers 4 and 5, inasmuch as in that application, defendant number 2 was described as guardian --ad -litem of defendants numbers 4 and 5.  That accidental slip or omission has been repeated in the order of the Court inasmuch as defendant number 2 has there are also been recorded as being guardian --ad --litem of defendants numbers 4 and 5.  Whatever way one looks at it, it is an accidental slip or omission and, therefore, amenable to the jurisdiction under Section 152 of the Code of Civil Procedure.  I, therefore, proceed to correct the error in the proceedings and accordingly correct the order passed in I.A. No. 1162/75 on 2nd May, 1975.  The result of the correction will be that leave will be deemed to have been given to both defendants numbers 2 and 3 to enter into the compromise on behalf of the minor defendants numbers 4 and 5.  Defendant number 2 has already been given leave and it will be deemed to have been given to him in his capacity as natural guardian and permission will be deemed to have been given to defendant number 3 in a capacity as the guardian --ad --litem of defendants numbers 4 and 5."

"8. All the parties have joined together in this application and it has also been urged before me that the original application may be allowed to the amended.  I am a bit doubtful whether the application can be allowed to be amended after the suit has been decided.  Furthermore, the cases show that the correction has to be made in the proceedings, i.e., in the judgment, decree or orders passed by the Court and need not be made in the original proceedings.  For instance, if  there is an accidental slip or omission in the proceedings, it may lead to an accidental slip or omission in the judgment or decree passed by the Court.  Once the order, judgment or decree has been passed and the accidental slip or omission is brought to the notice of the Court, it is sufficient for the order or judgment or decree to be corrected with a view to removing the accidental slip or omission.  However, the present case is somewhat unusual, because in this case, permission was granted to enter into a compromise and thereafter a compromise was entered into.  The judgment on the compromise was passed on 2nd May, 1975, soon after the permission was given and a decree was ordered to be passed in terms of the compromise.  The compromise itself is a part of I.A. No. 1162/75.  If the original document is not allowed to be amended and the accidental slip or omission occurring  therein  not removed, there may be no proper decree and further complications may arise.  I accordingly have to allow an amendment under Section 153 of the Code is in the original application to remove the accidental slip or omission so as to prevent any further misunderstanding as to the scope of the compromise.  The correction permitted to be made in I.A. No. 1162/75 is as follows:

..................................................................." (Emphasis supplied).

In Rania case (supra), Rania had filed a suit for possession by pre-emption of the land as detailed in the head -- note of the plaint.  A decree was passed accordingly in his favour by the Senior Sub-Judge, Kangra at Dharamsala.

While the correct Khata number of the land in question was 38, it was incorrectly mentioned as Khata number 58 in paragraph 2 of the plaint. The same mistake crept in the decree where also Khata number of the land in question was mentioned as 58, instead of 38.

The decree-holder (Rania) filed an application purporting to be one under Sections 151 and 152 of the Code of Civil Procedure for correction of the judgment and decree, wherein Khata No.  38 had been wrongly mentioned as Khata No. 58 and that this was an inadvertent clerical mistake which could be rectified.

The said application was dismissed by the Senior Sub-Judge holding that as the decree-holder (Rania) as plaintiff had himself given Khata Number of the land in question as 58 in paragraph 2 of the plaint, it could not be said that there was any mistake in the judgment or decree.

Thereupon, Civil Revision was filed by the decree holder (Rania) before the Himachal Pradesh High Court.

The Himachal Pradesh High Court allowed the said Civil Revision, reversed the order of the Senior Sub-Judge, and ordered that amendment be made in "the decree so as to insert and read Khata No. 38 min for 58 min."

It was observed as under (paragraph 5 of the said A. I. R.):

"5. Therefore, what follows is that the Court has to do a substantial justice and for that Court is competent to correct any mistake, clerical or arithmetical, which has crept in the decree or in the plaint or the written statement itself, so as to give effect to the decree.  In the instead case the sale was of Khata No. 38 min and the head -- note of the plaint as also para 1 of the plaint also correctly mention the same although in para 2 a typographical mistake has occurred.  The learned Senior Sub-Judge therefore was wrong in rejecting the application of the plaintiff-- decree holder merely on the ground that he had himself so mentioned in para 2 forgetting that not only in the head -- note rather in para 1 of the plaint also, he had given the correct description and the documentary evidence also speaks to the same effect.  The sale deed which was the subject-matter of the suit also mentions Khata No. 38.  Therefore, in order to do substantial justice and to give effect to the decree it was the duty of the Senior Sub-Judge to have corrected this typographical error in the decree."

(Emphasis supplied).

In Shankergouda case (supra), the Karnataka High Court, while deciding the Second Appeal filed by the appellant (Shankergouda), held the land in question to be the exclusive property of the appellant and directed its exclusion in the partition of the joint family properties between the appellant and the respondents.  In the judgment and decree passed in the Second Appeal, the Survey Number of the land in question of was mentioned as 304 while the correct Survey Number was 203.  The said mistake crept in the judgment and decree on account of the same mistake committed in the plaint of the suit giving rise to the said Second Appeal.

The appellant moved an application before the Karnataka High Court under Section 152, Code of Civil Procedure praying for amendment of the judgment and decree in the said Second Appeal by substituting the figure 203 for the figure 304 denoting the Survey Number of the land in question.

The Karnataka High Court, on a consideration of the facts and circumstances including the admissions of the defendants themselves, concluded that the mention of Survey Number 304 was an inadvertent or clerical error and that the correct number of the land in question (claimed by the appellant to be his self-acquired property) was 203 and not 304. Accordingly, the High Court allowed the said application filed by the appellant.  

It was concluded as follows (paragraph 11 of the said A.I.R.):

"11..............  As there is no ambiguity as to the identity of the land claimed by him as his self acquired property and the mistake as to its survey number in the plaint was due to an inadvertent or clerical error, I allow the application, I.A. II, and correct the mistake in my judgment in the second appeal and the decree based thereon by substituting Survey No. 203 for Survey No. 304."

(Emphasis supplied).

In Mohinder Singh case (supra), the decree - holders as plaintiffs filed a suit for possession of the land in question.  The Khasra number of the land in question was 24 as per the revenue record.  However, by mistake, the Khasra number was incorrectly mentioned as 20 in the plaint.

The said suit was decreed.  The mistake in the Khasra number of the land in question crept in the decree, prepared on the basis of the Khasra number as given in the plaint.

The said mistake in the plaint and in the decree came to light during execution proceedings.  In the circumstances, the decree holders made an application before the Executing Court praying that in fact the Khasra number in the revenue record was 24 and it was wrongly described as 20, therefore, correction be made in the plaint, judgment and the decree under Section 152, Code of Civil Procedure.

The Executing Court allowed the application of the decree holders and directed that the correction of the Khasra number be made in the plaint, the judgment and the decree.

Against the said order of the Executing Court, the judgment-debtors filed Civil Revision before the Punjab & Haryana High Court.

The Punjab and Haryana High Court dismissed the said Civil Revision.

Question before the High Court was as to whether under Section 152, Code of Civil Procedure, the Court is only empowered to make corrections of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission, or the Court is also empowered to make corrections of such mistakes or errors in the pleadings. It was held as follows (paragraphs 8 and 13 of the said A.I. R.):

" 8. Section 152, Civil Procedure Code, gives power to rectify any mistake in the judgment, decree or order or errors arising therein from accidental slip or omission traceable to the conduct of the parties themselves.  No doubt the Court cannot go into the disputed questions regarding the principle in dispute, but if a mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed judgment, decree or order, such correction can be made even under Section 152, Civil Procedure Code............................."

"13.  In the instant case, the mistake in the judgment and the decree, occurred due to an accidental slip, by writing Khasra No. '20' instead of Khasra No. '24' in the plaint and its notice was not taken even by the defendants while contesting the suit.  In fact there was no doubt about the identity of the land in dispute, as the same had been kept for establishing a school.  The correction of the khasra number, thus will not affect the identity of the field in dispute.  Justice, therefore, requires that the necessary correction be made in the plaint, judgment and decree under Section 152, Civil Procedure Code.  Thus I do not see any illegality in the order under revision.  The result is that this civil revision petition is dismissed.  No order as to costs."

(Emphasis supplied).

In Harbans Lal Tauh case (supra), the facts of the case were as follows. In 1964, the defendant-revisionist had a cash credit account in the plaintiff-opposite party-Bank and to furnish necessary security for the loan taken by him, the revisionist created an equitable mortgage by deposit of title deed in favour of the Bank.  Since the money was not paid, the Bank filed a suit for the recovery of the loan in question which was decreed on 20.3.1968.  In the plaint of the said suit, two properties were mentioned which were said to have been mortgaged in favour of the Bank.  There was no dispute as regards the property mentioned at item number 1.  However, at item number 2, House No.427 was described with the particular set of boundaries while it should have been mentioned as House No.412 with entirely a different set of boundaries.

The said mistake, which occurred in the plaint, was carried into the judgment and the decree.

The plaintiff-decree holder-Bank moved an application under Sections 151,152 and 153 of the Code of Civil Procedure, for amending the plaint as well at the judgment and the decree following upon it, by amending property at item number 2, which was House No.427 mentioned in the plaint, to House No.412 with a different set of boundaries.

The Court below allowed the said application of the plaintiff-decree holder-Bank.

Thereupon, the defendant-revisionist filed a Civil Revision before this Court.

This Court dismissed the said Civil Revision holding that the Court below had not committed any mistake in exercise of jurisdiction.

It was observed as follows:

 "The preponderance of judicial review, therefore, all over country appears to be that under section 152 C.P.C. the Court has the power not only to correct its own mistakes which arise in the judgment, decree and order but it can also correct those mistakes which may have been initially committed by the parties in the pleadings which was then repeated in the judgment, decree and order of the Court.  Some of the decisions have also gone a little further and have held that even the mistakes occurring in the documents which formed the basis of the suit and which had somehow been repeated in the pleadings, can also be corrected provided the mistakes result in misdescription of the property and there is no dispute about the actual identity of the property in suit.  Where the very identity of the property was in dispute, section 152 C. P. C. cannot be called in aid.

          "As a result of the review of the case law referred to above, certain principles emerge regarding power of the Court to correct mistakes arising due to arithmetical or clerical mistakes or errors due to accidental slip or omissions which may be enumerated below: --

(i) to correct such mistakes committed by the Court;

(ii) to correct such mistakes though committed by the parties in their pleadings and carried into judgment, decree or order passed by the Court on its basis;

(iii) to correct even those mistakes which arise in the pleadings of the parties on account of some such mistakes occurring in the document which forms foundation of the suit provided that no third party has acquired a vested interest in the subject -- matter of the suit during intervening period;

(iv) no mistake which does not amount to mere misdescription of subject -- matter of the disputed property can be corrected;

(v) where the identity of the property itself is disputed, the same cannot also be corrected, under section 152 C. P. C.

The Court, therefore, has power to correct in appropriate cases where the nature of the mistake and other circumstances justify allowing of the amendment sought.  No such amendment can, however, be allowed when rights of third party get involved and are likely to be adversely affected."

(Emphasis supplied).

In the matter of the Goods of Late Mr. Justice Manulal Chunilal Desai, this Court was dealing with a Testamentary matter. It was held as under:

"On 10.8.1994, this Court had allowed this petition for grant of Letters of Administration in respect of the Estate of late Mr. Justice Manulal Chunilal Desai subject to the payment of ad valorem Court fees.  Subsequently, on 28.9.1994, a supplementary affidavit has been filed stating therein that certain shares which had already been transferred in the name of the daughter of the deceased (Petitioner) has been inadvertently included in the schedule of the properties and, therefore, the said schedule required correction.  Along with the supplementary affidavit, a corrected list of the shares also showing their market value on the death of the deceased has been annexed praying that the same may be treated to be a part of the petition and Letters of Administration regarding the schedule of properties filed along with the Supplementary affidavit.

Learned counsel for the petitioner has placed reliance upon the provision of section 152 C. P. C. and has submitted that this Court has jurisdiction even after passing the judgment to correct any clerical or arithmetical mistake in the judgment or any error arising from any accidental slip or omission.  In support of this submission, the learned counsel has placed reliance upon the following decisions:

1. A. I. R. 1917 Allahabad page 443.

2. A. I. R. 1931 Madras page 260.

3. A. I. R. 1957 Allahabad page 133.

I have perused the aforesaid decisions and I find the submissions made by the learned counsel well founded.  From the affidavit I am satisfied that by inadvertence, certain shares were included wrongly in a schedule of properties and the schedule filed along with the supplementary affidavit should be treated to be the correct schedule on the basis of which Letters of Administration can be granted.

I, therefore, order that the schedule of the properties now annexed to the supplementary affidavit filed on 28.9.1994 be taken to be a part of the petition and the Letters of Administration be granted to the petitioner in respect of the said schedule and the earlier schedule filed along with affidavit of valuation stands superseded."

(Emphasis supplied).

Let us now take up Section 151 of the Code of Civil Procedure.  Section 151 of the Code of Civil Procedure saves inherent powers of Court.  It provides that nothing in the Code of Civil Procedure shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.  Hence, the Court has inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

In Shipping Corporation of India Ltd. case (supra), the Supreme Court dealt with the scope of Section 151 of the Code of Civil Procedure. It was held as under (paragraphs 19 and 20 of the said SCC):

"19. Coming to the maintainability of IA No.  20651 of 2001, the learned counsel for the appellant in support of his contention that an application under Section 151 CPC for the dismissal of the suit on the ground of same having become infructuous was maintainable, has relied on a number of judgments.  In Ram Chand & Sons Sugar Mills (P) Ltd. V. Kanhayalal Bhargava (A. I. R. 1966 Supreme Court 1899)  while discussing the scope of Section 151 C. P. C. this Court after considering various previous judgments on the point held: (A. I. R. page 1902, para 5)

'The inherent power of a Court is in addition to and complimentary to the powers expressly conferred under the Code.  But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code.  If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions.  Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.' "

"20. From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 C. P. C. to make a suitable order to prevent the abuse of the process of Court.  Therefore, the Court exercising the power under Section 151 C. P. C. first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application."

(Emphasis supplied).

Taking up now Section 153 of the Code of Civil Procedure, the said Section deals with the general power of the Court to amend. According to Section 153 of the Code of Civil Procedure, the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit.  It is further provided that all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

The following principles, amongst others, follow from the decisions and legal provisions noted above:

1. Under Section 152 of the Code of Civil Procedure, the Court may make correction in judgment, decree or order in respect of the following:

(a)   Clerical mistakes.

(b)   Arithmetical mistakes.

(c)   Errors arising from any accidental slip or omission.  

2. Error arising from any accidental slip or omission [mentioned in category (c) in Principle Number 1 above] may arise in the judgment, decree or order

(i) on account of any accidental slip or omission in  the judgment, decree or order itself,

(ii) on account of any accidental slip or omission in the pleadings of the parties which travelled into the judgment, decree or order,

(iii) on account of any accidental slip or omission in any document wherefrom it travelled into the pleadings, and from the pleadings, the same travelled into the judgment, decree or order.

3. Error in the judgment, decree or order arising under any of the categories (i), (ii), or (iii) in Principle Number 2 above, may be corrected under Section 152 of the Code of Civil Procedure.

4. Correction of error in judgment, decree or order in cases falling under categories (ii) or (iii) of Principle Number 2 above, may be done without first amending the pleadings of the parties.

However, in such cases, the Court has power to permit amendment of pleadings, and thereafter, make correction in the judgment, decree or order regarding accidental slip or omission.  Such permission to amend the pleadings may be granted under Section 152, Code of Civil Procedure, itself, or in any case, under Sections 151 and 153, Code of Civil Procedure, read with Section 152, Code of Civil Procedure.

5. While correcting any error under Principle Number 4 above, whether without first getting the pleadings amended or after getting the pleadings amended, the Court must have regard to the nature of error, and the prejudice that may be caused to the contesting party by correcting such error.

6. Power of correction under Section 152, Code of Civil Procedure, should not be exercised when rights of third party get involved and are likely to be adversely affected."

7. Usual example of Principle Number 4 above is where the identity of land in question is not in dispute, but mistake is committed in giving number and/or boundaries in the document and/or in the pleadings, and as a result, the mistake travels to the judgment, decree or order.  However, the principles mentioned above are of general application, and apply to other kinds of mistakes also.  

Keeping in view the above principles, let us now consider the facts of the present case, which have already been noticed in detail in the earlier part of this judgment.

As is evident from the facts narrated in the earlier part of this judgment, while taking the figures from the Passbooks in respect of the Savings Bank Accounts, shown at Item Nos. 1 and 2 in the Schedule to the Affidavit of Valuation, mistake has occurred in mentioning the amounts in respect of the said Items in the said Schedule. Consequently, the mistake has occurred in mentioning the total value of the assets in the said Schedule, as Rs. 7,34,459.00.

Further mistake has occurred in mentioning the total value of the assets in paragraph 7 of the Testamentary Petition, and in paragraph 8 of the affidavit accompanying the Testamentary Petition, as also in paragraph 3 of the Affidavit of Valuation as Rs. 7,35,459.00, which is different from the figure mentioned in the Schedule to the Affidavit of Valuation, namely, Rs. 7,34,459.00. As noted earlier, even the figure of Rs. 7,34,459.00, mentioned in the Schedule to the Affidavit of Valuation, is not correct.

In the circumstances, the petitioner has filed the aforementioned Civil Misc. Application No. 140587 of 2005 (Paper No. A-11), interalia, praying that the petitioner be permitted to amend the Testamentary Petition, as mentioned in the said application.

Having regard to the facts and circumstances of the case, it is evident that the mistakes, mentioned above, have arisen from accidental slips.

In view of the above mistakes in the Testamentary Petition and the Affidavit of Valuation, the mistakes travelled into the said Order dated 16.2.2005 passed by the Court wherein the total value of the assets of the deceased was mentioned as Rs. 7,35,459.00.

Thus, the mistakes occurring in the said Order dated 16.2.2005, passed by the Court, owe their origin to the mistakes occurring in the pleadings of the Petitioner on account of accidental slips.

In view of the principles mentioned above, such mistakes in the said Order dated 16.2.2005 may be corrected under Section 152 of the Code of Civil Procedure.

Further, the Court has power to permit amendment of pleadings for correction of such mistakes.

Therefore, I am of the opinion that the aforementioned Civil Misc. Application No. 140587 of 2005 (Paper No. A-11), filed by the Petitioner, interalia, praying for permission to amend the Testamentary Petition, deserves to be allowed.

Further, Civil Misc. Application No. 140589 of 2005 (Paper No. A-10), interalia, praying for amendment of the said Judgment/Order dated 16.2.2005 also deserves to be allowed.

Accordingly, the aforementioned Civil Misc. Application No. 140587 of 2005 (Paper No. A-11), filed by the Petitioner, is allowed

Let necessary amendments be made by 9.12.2005.

The Affidavit of Valuation filed by the Petitioner earlier alongwith the Testamentary Petition will stand superceded, and the fresh Affidavit of Valuation filed alongwith the said Application (Paper No. A-11) will be read as part of the Testamentary Petition.

Further, Civil Misc. Application No. 140589 of 2005 (Paper No. A-10) is allowed.

Accordingly, the figure "7,35,459.00" after the word "Rs.", occurring in the passages of the said Order dated 16.2.2005, quoted in the earlier part of this Order, is deleted, and in its place, the figure "7,30,880.60" is written after the word "Rs." in the said passages of the Order dated 16.2.2005.

Let the record of the Testamentary Case be placed before the Court on 13.12.2005 for making the necessary corrections in the said Order dated 16.2.2005, as mentioned above.

The aforesaid Civil Misc. Application  No. 140587 of 2005 (Paper No. A-11) and Civil Misc. Application No. 140589 of 2005 (Paper No. A-10) stand disposed of accordingly.

Dt. 6.12.2005

safi


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