Shri Innasi v. Smti Nancy And Others

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA CO/72/2025 SHRI INNASI ... PETITIONER VS.

SMTI. NANCY AND OTHERS ... OPPOSITE PARTIES For the petitioner : Mr. Rakesh Kumar For the opposite parties : Mrs. Anjili Nag, Sr.Adv.

Mr. Adarsh Ilango Mr. D.K. Bawali Reserved on : December 19, 2025 Judgment on : December 19, 2025 HIRANMAY BHATTACHARYYA, J.

1.

This application under Article 227 of the Constitution of India is at the instance of the defendant and is directed against an order dated July 21, 2025 passed by the learned Joint Civil Judge, Senior Division at Port Blair in Other Suit No.6770 of 2011. 2.

By the order impugned, the application under Order VI Rule 17 of the Code of Civil Procedure was allowed.

3.

The opposite parties herein filed a suit for specific performance of an agreement for sale being other Suit No. 60 of 2011. The said

suit was decreed on contest and the petitioner was directed to execute and register the sale deed in respect of the suit property in favour of the plaintiffs/opposite parties within the time limit prescribed in the said decree, failing which the opposite parties will be at liberty to have the sale deed in respect of the suit property executed and registered through court.

4.

The schedule of the property mentioned in the decree was land bearing Survey No. 147.

5.

Being aggrieved by the judgment and decree dated February 28, 2012 passed by the learned Trial Judge in O.S. No.60 of 2011, the petitioners preferred an appeal being Other Suit No.22 of 2014 and the learned District Judge, Andaman and Nicobar Islands dismissed the said appeal, on contest, thereby affirming the judgment and decree passed by the learned Trial Judge. 6.

The said decree was put into execution giving rise to Other Execution Case No.1 of 2012. In the Other Execution Case, the petitioner filed an application under section 47 of the Code of Civil Procedure and the leaned Executing Court, by an order dated 19th December, 2023 dismissed the execution case on merit. 7.

Thereafter, the petitioner filed an application for amendment of the plaint for correction of the survey number of the decretal property. The said application, after being remanded by this Hon'ble Court in an application under Article 227 of the Constitution of India, was allowed by the impugned order.

8.

Mr. Rakesh Kumar, learned advocate appearing for the petitioner submits that the proposed amendment, if allowed, ,would change the nature and character of the suit as the description of the suit property was sought to be changed by way of amendment. He submits that, after the judgment and decree passed by the learned Trial Judge was affirmed upto the First Appellate Court, the prayer for amendment of the plaint could not have been allowed by learned Trial Judge.

9.

Ms. Anjili Nag, learned senior advocate appears for the opposite parties. She submits that, though the plot in question was subdivided, but the original survey number was indicated in the agreement for sale. The schedule of property as described in the agreement for sale was incorporated in the schedule of plaint and accordingly, the decree was passed in respect of the property mentioned in the Schedule of the plaint. She submits that, immediately after the said defect came to the notice of the opposite parties, steps were taken to amend the plaint by filing an application under section 152 of the Code of Civil Procedure in the execution case and after the execution case stood dismissed, the petitioner applied for amendment of the schedule of the plaint before the learned Trial Judge. She submits that such an erroneous description of the property which is the subject matter of the suit can be allowed to be corrected at any stage.

10.

Heard the learned advocates appearing for the respective parties and perused the materials placed.

11.

It is not in dispute that the property was initially recorded as Survey No. 147. The said property was subsequently sub-divided and recorded under survey no.147/1. It is not in dispute that at the time of entering into the agreement with the opposite parties, the petitioner was the owner of the Survey plot no. 147/1 and not 147. 12.

However, in the agreement for sale, the plot number was mentioned as 147. The suit filed by the opposite parties praying for specific performance of the agreement for sale was allowed and the learned Judge of the appellate court dismissed the said appeal on merit. Thus the decision on the legality and validity of the said agreement already attained finality.

13.

Since there was an erroneous description of the suit property which was the subject matter of the agreement for sale, in the schedule of the plaint and such erroneous description was carried in the schedule of property mentioned in the decrees passed by Trial Court and the First Appellate Court, the petitioner applied for amendment of the plaint.

14.

It is well settled that an erroneous description of the suit property can be corrected by way of amendment even at the belated stage in order to avoid complications in execution. 15.

Reference may be made to the decision of the Hon'ble Supreme Court in the case of Sajjan Kumar vs. Ram Kishan reported at

(2005) 13 SCC 89. In that case, the erroneous description of the suit property was allowed to be corrected at the belated stage in order to avoid complications at the execution stage. 16.

However, in the case on hand, the petitioner approached the learned Trial Judge for amendment of plaint, after the decree of the Trial Court was affirmed by the learned Judge of the First Appellate Court.

17.

Section 153 of the Code of Civil Procedure deals with the general power to amend. It states that 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. 18.

Two questions arise for consideration:- (i) Whether the learned Trial Court can entertain an application for amendment of plaint after its decree has been affirmed by the Appellate Court in an appeal filed under Section 96 of the Code;

(ii) Whether the prayer for amendment to correct the description of the suit property can be allowed at this stage.

19.

This Court shall now decide the first questions. As to when the doctrine of merger shall apply has been explained by the Hon'ble Supreme Court in the case of State of Kerala and another vs.

Kondottyparambanmoosa and others reported at (2008) 8 SCC 65 wherein it has been held that doctrine of merger would only apply in a case, when a higher forum entertains an appeal or revision and passes an order on merit and not when the appeal or revision is dismissed on the ground that delay in filing the same is not condoned. The Hon'ble Supreme Court held thus:- "21. In this connection, the decision of this Court in S. Kalawati v. Durga Prasad may be strongly relied upon. In para 7 of the said decision, this Court observed as follows:

"7. The principle behind the majority of the decisions is thus to the effect that where an appeal is dismissed on the preliminary ground that it was not competent or for non-prosecution or for any other reason the appeal is not entertained, the decision cannot be said to be a 'decision on appeal nor of affirmance. It is only where the appeal is heard and the judgment delivered thereafter the judgment can be said to be a judgment of affirmance."

22.

Again in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat this Court laid down the preconditions attracting the applicability of the doctrine of merger in the following manner:

(i) the jurisdiction exercised should be appellate or revisional jurisdiction;

(ii) the jurisdiction should have been exercised after issue of notice; and, (iii) after a full hearing in the presence of both the parties.

23. Approving the principles laid down in Shankar Ramchandra Abhyankar case this Court again in Kunhayammed v. State of Kerala has observed as follows:

"12.... Once the superior court has disposed of the lis before it either way-whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view"

(emphasis supplied) 24.

Keeping these principles as enunciated by this Court in the aforesaid three decisions in mind and applying the said principles in the facts of this case, we have no hesitation in our mind to conclude that the High Court in the impugned order did not at all consider that in the earlier revision order of the High Court, revisional application was rejected not on merits but only on the ground of delay. Therefore, it must be held that since the earlier revision application was not rejected on merits, the said order rejecting the same on the ground of delay cannot be said to be the order of affirmance and that c being the position, we must hold that since the earlier revision petition was not decided on merits, the doctrine of merger cannot be applied to the facts and circumstances of the present case. In this connection an observation made by this Court in Chandi Prasad v. Jagdish Prasad needs to be reproduced which is as under: "28. when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply"

(emphasis supplied)"

20.

In the case on hand the first appellate Court exercised its appellate jurisdiction after issuance of notice and after a final hearing in the presence of both sides. By applying the aforesaid proposition of law this Court holds that the decree of the first appellate Court is final, operative and binding between the parties. 21.

This Court is, therefore, of the considered view that the learned Trial Judge exceeded its jurisdiction in allowing the prayer of the opposite parties for amendment of the plaint. Only on such ground, this Court is inclined to interfere with the order impugned. Accordingly, the order impugned is set aside. 22.

In view of the aforesaid finding, the second question is left unanswered.

23.

At this stage, Ms. Nag, learned senior advocate appearing for the opposite parties submits that liberty be given to the opposite parties to approach the First Appellate Court with a prayer for necessary amendment.

24.

In the light of the prayer made by the learned senior advocate for the opposite parties, liberty is given to the opposite parties to approach the appropriate forum with the prayer for amendment. 25.

If such an application is filed, such forum shall consider the same and pass orders accordingly after affording an opportunity of hearing to the parties.

26.

With the above observations and directions, CO/72/2025 stands disposed of.

27.

It is, however, made clear that the observations made herein before are only to support the ultimate conclusion and the same shall not prejudice the parties before the appropriate forum. 28.

There shall be, however, no order as to costs. 29.

Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.

( HIRANMAY BHATTACHARYYA, J. )