Biman Kumar Nath & Ors vs Pankaj Saha
2023 Latest Caselaw 1781 Cal

S/L 70
17.3.2023

Court No.652 SD CO 3748 of 2019 Biman Kumar Nath & Ors.

Vs.

Pankaj Saha

Mr. Dyutiman Banerjee Mr. Arnab Sinha Mr. Amartya Basu ... for the Petitioners.

Mr. Debabrata Roy Mr. Rishabh Ahmad Khan ... for the Opposite Party.

Affidavit of service filed by the petitioners be kept

with the record.

Being aggrieved and dissatisfied with the order dated

16.4.2019 passed by the learned Civil Judge (Senior

Division), 10th Court, Alipore in Title Execution No.29 of

2018, arising out of Title Suit No.58 of 2010, present

application under Article 227 of the Constitution of India has

been preferred.

The petitioners contended that the petitioners as

plaintiffs filed the said suit for eviction, arrear license fee and

damage against the opposite party herein.

In the said suit, the plaintiffs made out a case that one

Biman Kumar Nath and Tapan Kumar Nath were the joint

owners of the suit property and they granted license to the

defendant for a period of three years. The agreement for

license was never constituted as agreement of lease and

defendant has neglected to pay the licence fee from July

2007 and therefore, the plaintiffs have asked the defendant

to quit and vacate the suit property after revoking license by

sending a notice. As defendant in spite of receipt of notice

failed to vacate the suit property, the plaintiffs filed the

abovementioned suit. The opposite party/defendant

contested the suit by filing written statement and denied all

material allegations. The trial court vide its judgment and

decree dated 28.02.2018 decreed the suit in part on contest

against the defendant and directed the defendant to quit and

vacate the suit property within a period of 90 days. As

defendant failed to vacate the suit property, the petitioners

put the decree in execution, which was registered as Title

Execution Case No.29 of 2018.

In the said execution proceeding, the

plaintiffs/decree-holders filed an application on 13.7.2018

under Section 151, 152 and 153 read with Order XX Rule 6

and 9 of the Code of Civil Procedure for incorporation of the

address of the suit property including the boundary of the

suit property in the decree and making correction of suit

number and date in the cause title of judgment.

Learned court below vide its impugned order dated

16.4.2019 was pleased to reject the said application holding

that said address is not included in the plaint and that the

application has been filed at a pre-mature stage and it is not

specific which part of the provision is not in the decree, the

provisions of Order XX Rule 6 does not apply in the present

case.

Learned counsel appearing on behalf of the

petitioners submits that the learned court below acted

illegally in rejecting the application of the petitioners without

considering that if the schedule of the decree is not corrected

at this stage, then the decree may become inexecutable.

Learned court below failed to appreciate that without the

premises number of the suit property in the decree, baliff

may not be able to deliver possession in favour of the decree-

holder. Accordingly, he has prayed for setting aside the

order and for direction to make necessary correction in the

judgment and decree.

In support of his contention, he has relied upon

Muni Lal vs. The Oriental Fire & General Insurance

Company Ltd. & Ors. reported in AIR 1996 SC 642.

Learned counsel appearing on behalf of the opposite

party submits that Order XX Rule 9 says, where the subject

matter of the suit is immovable property, the decree shall

contain a description of such property sufficiently to identify

the same and the decree shall satisfy such boundaries or

numbers where such property can be identified by

boundaries or by numbers. But in the present case, plaintiffs

having been failed to incorporate the same in the schedule of

the plaint, cannot seek for such amendment at this stage

after passing the judgment and decree and as such, the court

below rightly observed that the prayer for amendment in the

judgment and decree as sought for by the

plaintiffs/petitioners cannot be allowed at this stage.

In the present case, it appears from the schedule of

the amendment made in the application under Section 151,

152 and 153 of the Code of Civil Procedure that in the first

paragraph of the schedule, the plaintiffs/decree-holders only

wants to correct and incorporate the year of the suit and date

of delivery of judgment which is merely a typographical

mistake and should have been allowed.

So far as the second part of the schedule of the

amendment is concerned, it relates to the addition of

premises number as well as boundary of the premises in

question, to make it elaborate.

I have gone through the plaint filed in the said suit

and it appears that in the first two paragraphs of the plaint,

the plaintiff has mentioned that Biman Kumar Nath and

Tapan Kumar Nath were the joint owners of premises No.31,

Hindusthan Road, P.S.-Gariahat, Kolkata-700029 and the

said persons on 01.8.2006 granted licence to the defendant

who is proprietor of Simco Knitting and Sewing Machine

Company for a period of three years. In paragraph 6 they

have also given detailed description of the suit property

pertaining to license where the defendant uses to run his

business in the suit property. Under paragraph 6, the suit

property pertaining to license consists of old one mezzanine

floor room, dining space, kitchen, bath cum privy, the front

verandah cum entrance will be of common use of bath

licensees and licensor, one key of entrance will be kept by

both parties which is called as suit property.

I have also gone through the copy of written

statement and from the written statement I find that the

defendant has never disputed the portion occupied by him in

the suit property. Their main dispute as appearing from the

written statement was that according to the plaintiffs, the

defendant is a licensee and on the contrary, the defendant's

contention was that he is occupying the said property as a

monthly tenant since 1988 and the defendant has been

occupying the suit property continuously for about 23 years

on payment of rent regularly. The defendant dealt with

aforesaid contents of paragraph 6 of the plaint as matter of

record in paragraph 5 of the written statement.

In the judgment delivered in connection with the suit

also it appears that in page 2 of the judgment, court below

stated that plaintiff's case is defendant is a licensee in respect

of one room, one mezzanine floor room, dining space,

kitchen etc. which was granted by joint owners of Premises

No. 31, Hidustan Road, P.S- Gariahat. The court below has

also referred the defendant's written statement where

defendant has come up with positive defence that the

defendant has been using the ground floor to the suit

property as his office as a monthly tenant thereof since 1994.

Nine issues were framed while disposing the said case and

none of the said issues relates to dispute about the extent of

possession of the defendant in respect of the suit property.

Defendant in spite of receiving letter revoking license has not

denied or disputed his occupied portion by giving reply to

that letter.

It further shows that deed of license has been marked

as Exhibit 1 in the said case. In page 10 of judgment also the

court below observed that the defendant has three limbs of

argument. One is agreement dated 01.8.2006 is not an

agreement for license rather it is an agreement for lease, the

second limb is the defendant is admittedly in occupation of

the suit property from much prior date of the agreement and

for that no new right is created in favour of the defendant by

the agreement dated 01.8.2006 and there is no document

regarding the nature of the occupation of the defendant prior

to 01.8.2006 for that it must be presumed that it is a tenancy

and third limb of the argument of the defendant is where the

agreement dated 01.8.2006 is accepted by the court as

document of licence. Accordingly, there is no dispute

between the parties about the portion of the property

possessed by the defendant.

It has also been stated in the said petition under

Section 151,152 153 of the Code that both plaintiffs and

defendant during evidence have marked certain documents

as exhibit which clearly reflect the address and description of

the suit property. Such documents marked as exhibit on

behalf of defendants are exhibits A, B, C, D, D, F, G, H and I,

which also includes telephone and broadband bill of

defendant showing address as 31, Hindustan Road, P.S-

Gariahat, Kolkata-29, West Bengal.

It has also been stated in the petition that PW1 in his

evidence stated that the defendant is running the office in

the ground floor of the suit building having premises No.31,

Hindusthan Road, Gariahat, Kolkata-700029 and the said

PW1 further admitted that the defendant is occupying one

room, some vacant space, one kitchen, one bathroom in the

ground floor and defendant also occupies one mezzanine

floor of the suit building as part and parcel of the office

which is the suit schedule property. So, the suit property has

been sufficiently described by both the parties in their oral

and documentary evidence apart from pleading.

It is true that in schedule portion of plaint, the

address has not been given in details, but such

typographical/clerical error, which are not legal errors but

accidental omission and which requires no review and has

been crept in through inadvertence, can be corrected under

Section 151 and 152 of the Code. The test to determine

whether the slip or omission is accidental or not is to see

whether the order as it stands represents the intention of the

Judge, at the time when he made it. Accordingly, in the

present case when the judgment was passed the intention of

the Judge is to direct the defendant to quit and vacate from

the portion occupied him and which is the subject matter of

suit. Accordingly non-description of detailed address of the

suit property in plaint is merely an accidental slip and/or

omission. Now where there is such accidental slip or

omission in manifesting the intention of the court by

couching the reliefs to which, the plaintiffs were entitled in

the event of their succeeding in the suit, Section 152 of the

Code enables the court to make such correction and add such

description in the judgment and decree respectively, so as to

give effect to it's meaning and intention. Accordingly, I am of

the view, where the decree has overlooked to mention the

address of the suit premises, though mentioned in the body

of judgment, this was apparently an accidental omission,

which was certainly within the competence and jurisdiction

of the executing court under section 152 of the Code to add

details of undisputed address of the suit property with the

boundary in the decree and also to correct year mentioned in

cause title of judgment.

Since this is purely a case of accidental omission in

describing the schedule of the plaint and cause title of

judgment, the court below should have been corrected and

added by allowing the application filed under Section 152 of

the Code of Civil Procedure.

In view of the above, CO 3748 of 2019 is allowed.

The order dated 16.4.2019 passed by the learned Civil

Judge (Senior Division), 10th Court, Alipore in Title

Execution No.29 of 2018 arising out of Title Suit No.58 of

2010 is hereby set aside.

The court below is directed to make necessary

correction in the judgment as per first schedule of petition

and to add detailed address in the decree as per second

schedule of the petition within a period of four weeks from

the date of communication of the order.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)