REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    942              OF 2009 [Arising out of SLP (Civil) No. 23191 of 2005]

Peethani Suryanarayana & Anr. … Appellants

Versus

Repaka Venkata Ramana Kishore & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Jurisdiction of a civil court to allow an application for amendment of

plaint after a final decree is passed is in question in this appeal which arises

out of a judgment and order dated 10.08.2005 passed by the High Court of

Judicature of Andhra Pradesh in Civil Revision Petition No. 3666 of 2005.

3. The said question arises in the following factual matrix:

A suit for partition as also for a decree for setting aside some deeds of

sale  executed  in  favour  of  some  of  the  defendants  was  filed  by  the

respondent  No.  1.   Indisputably,  during  pendency  of  the  said  suit,  the

defendant  Nos. 3  to  7 sold  their  right,  title  and interest  in  favour  of the

appellants  by  reason  of  registered  deeds  of  sale  dated  29.06.1992  and

7.08.1992.  The said defendants having not taken any further steps in the

said suit, it was directed to be heard exparte against them.

4. Appellants herein filed an application for impleading themselves as

parties  in  the said  suit,  which was rejected by an order  dated 4.08.1993.

Aggrieved by and dissatisfied therewith,  they filed a revision application

before  the  High  Court.   The  High  Court  by  reason  of  an  order  dated

3.07.1998 purported to have allowed the appellants to participate in the final

decree proceedings, stating:

“The  plaintiff  had  filed  the  aforesaid  suit  for partition claiming half share in the total property. The said suit  was decreed in terms of the prayer made in the suit.  Before the suit was decreed, the defendants 3 to 7 in the said suit were set ex-parte from whom the present petitioners alleged to have purchased  their  shares.   When  the  preliminary decree  is  passed,  purchaser  of  the  shares  of  the

2

defendants  are  entitled to  participate  in  the final decree proceedings to work out the equities.”

5. Pursuant  thereto or in  furtherance of  the  said  order,  the  appellants

participated in the final decree proceeding.  The final decree was passed on

17.12.2001.   Validity  or  otherwise  of  the  said  final  decree  was  not

questioned.  It, thus, attained finality.   

6. Respondent No. 1 thereafter filed an application for amendment of a

mistake,  said  to  be a  clerical  one,  in  the  decree,  seeking  deletion  of  the

Town Survey No. 462 and substituting the same by the Town Survey No.

463.   

The  said  application  was  allowed  by  an  order  dated  25.08.2003.

Defendant No. 4 in the suit filed a revision application thereagainst, which

was dismissed by the High Court by an order dated 19.12.2003 opining that

the mistake was a clerical one.   

7. Appellants herein filed an application purported to be under Section

151 of the Code of Civil Procedure for setting aside the said order dated

25.08.2003, which was dismissed by an order dated 14.03.2005.  The High

3

Court, by reason of the impugned judgment dated 10.08.2005 dismissed the

revision application filed by the appellants thereagainst.   

Appellants are, thus, before us.

8. Mr. Mahabir Singh, learned senior counsel appearing on behalf of the

appellants, would submit:

(i) The  learned  Trial  Judge  as  also  the  High  Court  committed  a

serious  error  in  passing  the impugned judgment  insofar  as  they

failed to take into consideration that an application for amendment

of plaint was not maintainable after passing of a decree.   

(ii) Appellants  herein having been impleaded as a party in the final

decree proceedings in terms of the order of the High court dated

3.07.1998, the Trial Court was obligated to serve a notice on the

application  for  amendment  of  plaint  as  also  hear  the  appellants

thereupon.

(iii) Although entertainment of an application for amendment of plaint

after  a  decree  is  passed  may be  permissible  in  law,  by  reason

thereof, the lands in suit cannot be substituted by another.

4

9. Mr. P.S. Narasimha, learned senior counsel appearing on behalf of the

respondents, on the other hand, would contend:

(i) Amendments, which do not affect the interest of the other parties,

for a bonafide purpose and for effective execution of the decree,

should be allowed.

(ii) The main object of the rule being that the court should allow all

amendments which are necessary to determine the real question in

controversy between the parties  without  causing injustice  to the

other side and only because the parties at one point of time were

negligent  or careless  in mentioning the correct  plot  number, the

same, by itself,  shall  not be a ground for taking away the right

vested in a party by reason of a valid decree passed in his favour

as by reason thereof the identity of suit land is not changed.

(iii) Wrong description of a property in the plaint despite passing of a

decree should not be rejected where it is immaterial whether errors

were introduced in the plaint or any other document, if it is found

that only clerical mistakes were made which could be corrected for

the purpose of proper execution of a decree.

5

10. The factual matrix involved in the matter, as noticed hereinbefore, is

not in dispute.

It is also not in dispute that in the plaint suit land was described as

Revisional Survey No. 165.  The village became a part of the municipality,

by reason whereof a new Town Survey was assigned to the suit land being

Town Survey No.  463.   However,  in  the  plaint  and  consequently  in  the

preliminary decree as also in the final decree, Town Survey No. 462 was

mistakenly mentioned, which was evidently a typographical mistake.

11. The power of the court to allow such an application for amendment of

plaint is neither in doubt nor in dispute.  Such a wide power on the part of

the court is circumscribed by two factors, viz., (i) the application must be

bonafide; (ii) the same should not cause injustice to the other side and (iii) it

should not affect the right already accrued to the defendants.

12. Appellants  herein  are  pendent  elite  purchaser  from the  Defendant

Nos. 3 to 7.  A preliminary decree was passed against them.  It has attained

finality.   They  were  also  allowed  to  participate  in  the  final  decree

proceedings.  A final decree was also drawn up.  It also attained finality.

The respective shares of the parties inter se in the joint family property as

6

also the plots of the lands which were required to be allocated respectively

in  their  favour is  no longer in  dispute.   It  is  also not in dispute that  the

appellants, being purchasers of undivided share in a joint family property,

are not entitled to possession of the land what they have purchased.  They

have  in  law  merely  acquired  a  right  to  sue  for  partition.   [See  M.V.S.

Manikayala Rao v.  M. Narasimhaswami and others AIR 1966 SC 470 and

Hardeo Rai v. Sakuntala Devi and Others (2008) 7 SCC 46]  

13. In view of the aforementioned legal position, the appellants  merely

could  have  filed  a  suit  for  partition  either  as  a  plaintiff  or  defendant  in

respect of the property which was joint family property.   

14. On a query made by us, it was stated at the bar that the deeds of sale

dated 29.06.1992 and 7.08.1992, in terms whereof the appellants purchased

share in the joint family property, consisted of the suit lands including the

aforementioned Town Survey No. 463.  It is not the case of any of the party

to the suit that the Town Survey No. 462 was the joint family property or

could have otherwise been the subject matter of the said suit for partition.

In Sajjan Kumar v. Ram Kishan [(2005) 13 SCC 89], this Court held:

7

“5. Having heard the learned counsel  for the parties, we are satisfied that the appeal deserves to be allowed as  the trial  court,  while rejecting the prayer  for  amendment  has  failed  to  exercise  the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of  justice.  Such  an  error  committed  by  the  trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section  115  CPC  would  not  have  been  strictly applicable.  It  is  true  that  the  plaintiff-appellant ought  to  have been diligent  in  promptly seeking the amendment in the plaint at an early stage of the suit,  more  so  when  the  error  on  the  part  of  the plaintiff  was pointed out by the defendant  in the written statement itself. Still, we are of the opinion that  the  proposed  amendment  was  necessary  for the  purpose  of  bringing  to  the  fore  the  real question  in  controversy  between  the  parties  and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the  plaintiff-appellant  succeeding in the suit.”

In Niyamat Ali Molla v. Sonargon Housing Cooperative Society Ltd.

and Others [(2007) 13 SCC 421 : AIR 2008 SC 225] this Court held :

“25. It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their  entirety.  They are to  be  construed  liberally and not in a pedantic manner. It is also not a case where by reason of an amendment, one property is being substituted by the other. If the Court has the requisite  power  to  make  an  amendment  of  the decree, the same would not mean that it had gone

8

beyond  the  decree  or  passing  any  decree.  The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to  deprive  the  respondents  from the  fruit  of  the decree.  If  the  appellant  herein  did  not  file  any written  statement,  he  did  so  at  its  own  peril. Admittedly, he examined himself as a witness in the  case.  He,  therefore,  was  aware  of  the  issues raised  in  the  suit.  It  is  stated  that  an  Advocate- Commissioner  has  also  been  appointed.  We, therefore, are of the opinion that only because the JL numbers in the schedule was missing, the same by itself would not be a ground to interfere with the impugned order.”

In  North  Eastern  Railway  Administration,  Gorakhpur v.  Bhagwan

Das (Dead) By LRs. [(2008) 8 SCC 511], this Court held:

“16. Insofar as the principles which govern the question  of  granting  or  disallowing  amendments under Order 6 Rule 17 C.P.C. (as it  stood at the relevant  time) are concerned,  these are also well settled.  Order  6  Rule  17  C.P.C.  postulates amendment  of  pleadings  at  any  stage  of  the proceedings.  In  Pirgonda  Hongonda  Patil  v. Kalgonda  Shidgonda  Patil  and  Ors.  which  still holds  the  field,  it  was  held  that  all  amendments ought  to  be  allowed  which  satisfy  the  two conditions:  (a)  of  not  working  injustice  to  the other  side,  and  (b)  of  being  necessary  for  the purpose  of  determining  the  real  questions  in controversy  between  the  parties.  Amendments should  be  refused  only  where  the  other  party cannot  be  placed  in  the  same position  as  if  the pleading  had  been  originally  correct,  but  the amendment  would  cause  him  an  injury  which

9

could  not  be  compensated  in  costs.  (Also  see: Gajanan  Jaikishan  Joshi  v.  Prabhakar  Mohanlal Kalwar)”

15. There cannot be any doubt whatsoever that the principles of natural

justice are required to be complied with.  But, in a case of this nature, the

same would be an empty formality.  The facts are not disputed.  The identity

of the suit land has not been changed.  It is not a case where, as submitted

by Mr. Mahabir Singh, one land is being substituted by another.  The fact

that the town survey No. 463 is a joint family property is not in dispute.  As

indicated hereinbefore, it is the same plot which was the subject matter of

sale and only in respect thereof the appellants herein could claim partition.

Appellants have also furthermore not been able to show as to how and in

what manner they have been prejudiced.

16. For  the  reasons  aforementioned,  there  is  no  merit  in  this  appeal,

which is dismissed accordingly.  However, in the facts and circumstances of

the case, there shall be no order as to costs.

………………………….J. [S.B. Sinha]

10

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; February 12, 2009

11