Indrawati Devi v. Hasma

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] ...

CO/31/2022 Indrawati Devi ... Petitioner/plaintiff Vs.

Hasma

...Respondent/defendant

Mr. Gopala Binnu Kumar ... for the petitioner December, 20 2022 [AKB] Item No.7 This revisional application is directed against the order dated 26th July, 2022 whereby learned Trial Court rejected the petition filed by the petitioner in Other Suit No. 48 of 2015 under Order VI, Rule 17 along a provision under Section 152 of the Code of Civil Procedure.

Briefly stated the petitioner's case is as follows: The petitioner filed a suit for specific performance of contract before the learned Civil Judge Junior Division - I, Port Blair being Other Suit No. 48 of 2015 against the respondent namely Hasma with a prayer to execute the sale deed in respect of land bearing Survey No. 985 measuring an area of 300 Sq.mtrs. situated at Garacharma village, Port Blair Tehsil, South Andaman District in terms of agreement dated 15.08.1997 executed between the petitioner and the respondent.

In that suit in spite of service of notice even recoursing the provision of order V, Rule 20 of the Code of

Civil Procedure, but unfortunately the respondent did not appear and the suit was decreed ex-parte against the respondent with a direction upon the respond to perform his part of contract by executing the deed within a span of three months failing which petitioner was given liberty to put the ex-parte decree into execution.

On 16.12.2019 petitioner took out an application for execution of decree before the Trial Court being Other Execution No. 01 of 2019. In the execution case Nazir presented the sale deed before the Sub-Registrar who found deficit stamp duty and directed the petitioner to pay stamp duty which was paid accordingly.

On 17.12.2021 Sub-Registrar vide his letter dated 16.12.2021 seeks clarification from the Nazir on behalf of the Civil Judge Junior Division raising a discrepancy in the name of the respondent in the decree. In fact the name of the respondent was Hasma but in the cause title of the suit name was appearing as Hasana.

In view of the said communication of the SubRegistrar, petitioner came to know about the mistake of name of the respondent in the cause title of the suit and accordingly the petitioner took out an application under Order VI, Rule 17 of the Code of Civil Procedure along with the application under Section 152 of the Code of Civil Procedure. But the learned Judge rejected the said application by the impugned order dated 26th July, 2022

without considering exhibit 7 as well as evidence adducted by the prosecution witness No.4.

Mr.Gopala Binnu Kumar, learned advocate appearing on behalf of the petitioner has contended that it was bona fide mistake on the part of the petitioner in mentioning the name of the respondent as Hasana instead of Hasma. In support of that bona fide mistake Mr. Gopala Binnu Kumar has referred to the evidence of prosecution witness No.4 and the original record entry containing the record of the name of the respondent Hasma.

Learned Civil Judge, Junior Division rejected those application under Order VI, Rule 17 of the Code of Civil Procedure filed by the petitioner/decree holder considering that the learned Judge did not have the jurisdiction to allow the amendment application after the suit was disposed of ex-parte and in respect of application under Section 152 of The Code of Civil Procedure learned Judge returned a finding that there was no clerical or arithmetical mistake in the judgement, decree or orders or arising therein from any accidental slip or omission and therefore the learned judge refused to allow the application under Section 152 of the Code of Civil Procedure.

Admittedly, respondent did not appear before the learned Civil Judge Junior Division in connection with Other Suit No. 48 of 2015 and the suit was taken up for exparte hearing and in course of disposal learned Judge

examined witnesses. From the evidence of prosecution witness PW 4 it is found that in course of evidence PW 4 being a person authorized by concerned Tehsildar, proved the original record entry and map showing survey No. 985 showing the name of Hasma, W/o Abdul Basheer Khan, was admitted in evidence as exhibit 7. The Record of Right (exhibit 7) also stands in the name of Hasma, W/o Abdul Basheer Khan appears against survey No. 985.

It is not in dispute that the Other Suit Being No. 48 of 2015 was filed against the respondent for specific performance of contract in respect of the land bearing survey No. 985 measuring 300 Sq. mtrs. in Garacharma village, Port Blair Tehsil, South Andaman District which is absolutely identical to that of record of right admitted in evidence as exhibit 7. Ex-parte decree was also drawn up with regard to that particular land. From the cause title of the plaint, I find that name of the respondent has been inscribed as Hasana, W/o Abdul Basheer Khan i.e. identical name of the husband which appears in the survey record.

After ex-parte disposal of the suit, petitioner put the decree into execution and at the time of the execution of deed at the instance of the learned Judge, Sub Registrar pointed out the mistake of the name of the respondent and knowing the fact the petitioner took out an application for amendment of the name in the cause title of the suit. The

learned Judge refused to consider the application on the plea of having no jurisdiction.

In this trying situation, decree passed by the learned Civil Judge, Junior Division will be frustrated and the petitioner will be deprived of all the right already accrued for execution of the same. In this circumstance learned Judge cannot be said to be a funtus officio in spite of having inherent powers under Section 151 of the Code of Civil Procedure to do justice in addition to exercise of powers under the Code of Civil procedure.

In wider sense the inherent powers of the Court are those powers which may be applied by the Court to perform full and complete justice between the parties before it. Section 152 of the Code of Civil Procedure deals with the amendment of judgement, decree and orders'.

According to Section 152 of the Code of Civil Procedure Court has power to change (either by own action or on the application of any of the parties) written or arithmetical mistake in the judgement, decree or orders or faults arising from an unexpected lapse or imperfection. Further, Section 153 deals with 'general authority of amend'. The Section empowers the Court to amend any fault or error in any proceeding in suits and all require improvements shall be made for the purpose of arranging raised issues or depending on such proceeding.

Conglomeration of Section 152 and 153 of the Code of Civil Procedure makes it clear that the Court can correct any mistake to do the justice and also to prevent abuse of process of Court.

Inherent power of the Court was codified under Seciton151 of the Code of Civil Procedure to address the situation for ends of justice or to prevent abuse of process of Court. Therefore, I am of the humble opinion that learned Judge ought to have exercised the inherent powers under Section 151 of the Code of Civil Procedure in disposing the prayer on behalf of the petitioner in the suit. With the aforesaid observation the order dated 26th July, 2022 stands set aside. Learned Judge, keeping the observation of this Court in mind, is requested to dispose of the application for amendment of cause title of the suit. Accordingly this revisional application stands disposed of. No order as to costs.

Let a copy of this order be communicated to the learned Civil Judge, Junior Division-I, Port Blair for information and compliance.

(Bibhas Ranjan De, J.)