Vijay Kumar Sethi vs Manak Chand & Ors.
1998 Latest Caselaw 311 Del

JUDGMENT

Manmohan Sarin, J.

1. By this petition under Article 227 of the Constitution of India, the petitioner challenges the order dated 2.9.1992, passed by the Additional Rent Controller and the order dated 11.2.1997 of the Rent Control Tribunal, dismissing the appeal preferred by the petitioner against the order dated 2.9.1992.

2. The learned Additional Rent Controller vide his order dated 2.9.1992, had allowed an application under Section 151, CPC, moved by respondent No.1- landlord and struck out from the record, the unathorized amendments/additions made in the written statement by the petitioner and others. The petitioner and others, were permitted to file written statement confined to the amendment in the eviction petition. They were all also permitted to aver, if they had been misled in their defense or prejudiced due to the omissions in the amended petition, filed by respondent.

3. The case of the petitioner/tenant is that once an amendment is permitted in the plaint/eviction petition, the defendant has an unfettered right to file the written statement beyond the amendment made, and the written statement need not be confined to the amendments made in the petition. The petitioner further submits that the question as to whether petitioner can take any plea in defense, while filing the amended written statement in response to the amended paint or is confined to reply to only the amendments made in the plaint, has been referred to the Division Bench in Kedar Nath. Vs. Ram Prakash, reported at . Counsel for the Petitioner, therefore, submits that the present case should also be referred to the Division Bench for a decision, for which a reference has already been made as noted above. Reliance is placed on New Bank of India Vs. Smt. Raj Rani, AIR 1966 Punjab 103, Ram Chand Vs. Mahinder Singh, 1989(2) R.L.R. 603 and Rugsana Sultan Vs. Mahinder Kumar, 1983 R.L.R. 776, where conflicting views have been expressed by the Court.

Notice was directed to be issued in the petition by this Court on 7.8.1997 to the respondents on whether the question involved should be referred to the Division Bench or not? returnable on 18.9.1997. The respondent/landlord has filed his counter. The contention of the respondent is that this is not a case of amendment of the eviction petition but involved only a correction of a typographical omission or mistake. The question whether the defendant, petitioner herein, gets an untrammeled right to amend the written statement does not arise in the present facts and circumstances and reference to the Division Bench is not warranted.

4. The question that falls for consideration is whether the respondent/landlord had only corrected a typographical omission in the eviction petition, though described as amendment, or it was an amendment of the petition, which would entitle the petitioner to claim the right to amend written statement, without any restriction?

5. The relevant and essential facts may be briefly recapitulated:

(i) The eviction petition filed in the year 1972, has seen a number of amendments by the landlord/respondent No.1. While filing the last amended petition on 25.5.1974, the respondent omitted to mention the following words at the end of para 8 of the petition:

"The common passage and courtyard and a platform in front of common passage are shown in yellow colour".

These words had appeared in para 8 of the original petition as filed. It is also the admitted position that in the amendments sought and obtained by respondent/landlord, he had not sought any amendment for deletion of the above words.

(ii) The petitioner filed his written statement, denying the contents of para 8 of the petition. The omission of the aforesaid woods in the amended petition as filed in 1974, was not noticed by either of the parties. The matter went to trial and evidence was led. It was during the course of final arguments that the above omission was noticed. The respondent, accordingly filed an application dated 21.10.1988, mentioning the omission by inadvertence and typographical mistake.

The respondent sought permission to file amended petition incorporating the words inadvertently omitted in para 8. The application of the respondent was allowed vide order dated 14.2.1989, subject to costs of Rs.300/-. The respondent was directed to file amended petition on record.

(iii) The petitioner challenged the order dated 14.2.1989 in civil miscellaneous petition. The same was , however, dismissed. The learned Additional Rent Controller on 27.3.1989, directed petitioner to file written statement, if any. The petitioner in the event, filed on 11.10.1991, an amended written statement incorporating averments/allegations in paras, 1, 3(b), 4,5,7,8,9 to 11, 14, 16, 18 (a) and added additional pleas in paras 1 to 20. The petitioner's case being that there was no fetter in the orders dated 14.2.1989 and 27.3.1989, directing the petitioner to confine the amendments in the written statement to the reply to the amendment in para 8 of the petition only. It was in these circumstances that the respondent No. 1 moved the application under Section 151, CPC, complaining of the unauthorised amendments carried out by the petitioner in the written statement dated 30.1.1992 and which led to the passing of the orders dated 2.9.1992 and 11.2.1997 of the Rent Control Tribunal, against which the present petition had been filed.

6. Learned Counsel for the petitioner argues that the respondent has carried out a substantial and far reaching amendment relating to the description of the premises in suit though labeled as a "correction". Learned Counsel further submitted that this would not be a case falling under Section 152, CPC, which covers clerical or arithmetical mistake in judgment, decrees and orders. The alleged omission or mistake is not in judgment, decree or order, but in the pleadings. Learned Counsel further argued that the power under Section 153, CPC relates to the amendment as of any defect or error in proceedings in the suit. The subject matter being correction of proceedings in the suit and not in the pleadings. Learned Counsel further relies on the application dated 21.10.1988, moved by respondent under Sections 151 and 153 of the Code of Civil Procedure. Paras 9 to 11 of which are as under :

9. "That the error is apparent on the face of the record and it is necessary in the interest of justice that the necessary amendment is made in para 8 of the petitioner in order to determine the real controversy between the parties.

10. That under these circumstances it has become necessary to file a fresh amended petition for eviction strictly in accordance with the order of Sh. Mohd. Shamim, the then Additional Rent Controller, Delhi dated 8.1.1974.

11. That the petitioner is now filing a fresh amended petition incorporating the words omitted in para 8 of the petition in advertently on account of the mistake of the typist."

The amendment in para 8 and filing of a fresh amended petition show that the respondent himself regarded the same as amendment rather than correction. Emphasis is also laid on the order dated 27.3.1989, wherein the Court directed the petitioner to file the written statement, if any.

7. Learned Counsel, therefore, submits that it is a case of a material amendment in the petition, which has been allowed and as such the petitioner has an unfettered right to file a comprehensive written statement, not confined to the amendment sought in the petition. In case the respondent objects to the same, the said question requires adjudication by the Division Bench for which a reference has already been made.

8. On a consideration of the material record as well as the submissions made by the learned Counsel for the parties, I find that the changes made by the respondent in para 8 of the eviction petition are in substance a correction of typographical omission. It is not in dispute that the original petition filed by the respondent included the words, "the common passage and courtyard and a platform in front of common passage are show in yellow colour." These words were repeated and included in para 8 of the amended petition that was filed pursuant to certain other amendments obtained. It was only when the filed pursuant to certain other amendments obtained. It was only when the amended petition dated 11.2.1974 was filed, pursuant to the order dated 8.1.1974, that the aforesaid words were omitted from para 8. It is also the admitted position that the respondent had not sought deletion of the aforesaid words. Parties went to trial and evidence was concluded. It was during the arguments that the aforesaid omission was noticed, which led to the respondent moving the application under Sections 151 and 153, CPC dated 21.10.1988, on which the order dated 14.2.1989 was passed. The respondent herein had agreed to the petitioner being permitted to file written statement confining to the amendments made in para 8 of the petition. The order further permitted the petitioner to aver regarding any prejudice caused to the petitioner or the petitioner having been misled due to the omission on the part of the respondent. Similarly, the order permitted the petitioner to file written statement confining to the amendment in para 8 of the petition.

9. As discussed earlier, the amendment made in para 8 is in reality and substance a correction of a typographical error, which can be corrected in exercise of powers under Sections 151, 152 and 153, CPC. The objection of the petitioner that correction only relating to the proceedings in suit can be made and not in pleadings is without merit. Reference in this connection may be made to Shoe Balak Pothook Vs. Sukhdei AIR 1914 All.16, The plaintiff had described the property in the plaint as a "two annals" share and paid the Court fee on that share. In the prayer clause for relief, at the end of the plaint, the word "Pie" was written in place of "anna". The parties knew all along that the dispute was with regard to the two annals share. The decree was prepared in occurrence with the relief prayed in the plaint. The Court held in this case the error in the plaint was a clerical one due to an accidental slip and that the Court had power under Section 152 CPC to correct the mistake through out record beginning with the plaint, down to the decree.

Again in Aziz Ullah Khan and Others Vs. Court of Wards, Shahjahanpur, , the Court held that by an accidental slip the "mortgaged property" was described as "mortgage deed" as being situated in Mouza Nagla Zamania Nawadiya. The correct name of the village being "Nawadiya Zamania Nagla" This mistake was repeated in the plaint , preliminary and final decrees, execution application and sale certificate. It was not noticed until the Revenue Court rejected the holder/purchaser's application for mutation on the ground that the auction purchaser according to the sale certificate had not purchased the property in Nawadiya Zamania Nagla. The decree holder applied for amendment of the decree under Section 152 , CPC. The Court observed that there was no doubt that under Section 152, CPC applied in terms to the amendment of the decrees and not to the amendment of the plaint as well as sale certificate and dakhalnama. It was held that the power of the Court to make corrections necessary for the end of justice is not confined only to power of the exercisable under Section 152, CPC. The extensive powers to make correction in the plaint could be exercised also under Sections 151 and 153, CPC. The Court held that this was eminently a case in which accidental slip should be corrected as the correction is necessary for the ends of justice.

10. In view of the foregoing discussion and judicial pronouncements noticed, the correction in petition was correctly allowed to be made by the Additional Rent Controller and the amended petition was directed to be taken on record. The order directing filing of the written statement, if any, it appears was passed in routine. In any case, the petitioner with the consent of the respondent has been permitted to file his response to the amended para 8 of the petition and further to state, if any prejudice was caused or the petitioner was misled in his defense in any manner. Simply because for this concession and benefit, which has been given to the petitioner in the interest of justice, the petitioner cannot be permitted to argue that the correction in para 8 of the petition to incorporate what had been inadvertently omitted and had always been there, is in the nature of amendment entitling the petitioner to file a comprehensive written statement raising additional pleas and averments unconnected with the correction in para 8 of the petition.

11. The impugned orders are, therefore, in accordance with law and do complete justice between the parties. This is not a case where the question of a defendant claiming an unfettered right to take up any plea in the amended written statement in response to a limited amendment in the plaint, arises for consideration, requiring reference to the Division Bench . The petition has no merit and is liable to be dismissed and is dismissed accordingly.