Parashuram S/O. Laxman Sugandhi vs Gurupadayya Hiremath
2021 Latest Caselaw 1644 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

DATED THIS THE 26TH DAY OF FEBRUARY 2021
                     BEFORE

     THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

             W.P.No.85512/2013 (GM-CPC)

Between:

1.   Parashuram
     S/o.Laxman Sugandhi,
     Age 75 years, Occ: Pensioner,
     R/o.: Jamkhandi, Dist.: Bagalkot.
     Since dead by his L.Rs.

     1(a) Shashikant
          S/o.Late Parsuram Sugandhi,
          Age 43 years, Occ: Business,
          R/o.: Jamkhandi, Tq.: Jamkhandi,
          Dist.: Bagalkot.

     1(b) Smt. Prabhavati
          W/o. Late Parsuram Sugandhi,
          Age 77 years, Occ: Business,
          R/o.: Jamkhandi, Tq.: Jamkhandi,
          Dist.: Bagalkot.

     1(c) Smt. Kavitra W/o.Satish Ladwani,
          Age 37 years, Occ: Business,
          R/o.: F-6, Chintamani Apartment,
          Nageshwarwadi, Aurangabad,
          State Maharashtra.

     1(d) Smt. Manjushree,
          W/o. Sharad Sugandhi,
          Age 37 years, Occ: Business,
          R/o.: H.No.12, GDA Colony,
          Near Akka Temple, Kalburgi.
                                 :2:



                                                    ... Petitioners

(By Shri Anil Kale, Advocate)


And:

Gurupadayya Hiremath,
Since deceased by L.Rs.

1.     Girish Ramayya
       @ Rameshi Hiremath,
       Age 35 years, Occ: Business,

2.     Shivanand @ Shiva Ramayya
       @ Rameshi Hiremath,
       Age 34 years, Occ: Business,

3.     Mahantesh Ramayya
       @ Rameshi Hiremath,
       Age 23 years, Occ: Service,

       All are R/o.: H.No.1118,
       Mahaveer Colony, Kudachi Road,
       Jamkhandi.
                                                  ... Respondents

(By Shri V.P. Kulkarni, Advocate for R1;
 Shri Ravi S.Balikai, Advocate for R2;
 Notice to R3 is held sufficient)


      This writ petition is filed under Articles 226 & 227 of the
Constitution of India praying to quash the order dated
26.10.2013, passed in Civil Misc.No.3/2013, passed by the Prl.
Civil Judge and 1st Addl. JMFC, Jamakhandi, produced at
Anneuxre-K and consequently allow the Civil Misc.No.3/2013.


      This writ petition having been heard and reserved for early
hearing on 19.02.2021 and coming on for pronouncement of
orders, this day, the Court made the following:
                               :3:



                             ORDER

1. The petitioners are the landlords and the respondents are

the tenants.

2. In the year 1978, proceedings were initiated to evict the

original respondent-Gurupadayya Hiremath (hereinafter referred

to as "tenant") in HRC No.12/1978. The said petition was

allowed. Against the said order, a revision was filed in HRC Rev

No.2/1981, which was allowed and against the said order a

revision was filed before this Court. This revision was however

dismissed

3. The petitioner filed HRC 3/1996 seeking for eviction but the

same was dismissed on the ground that the suit premises was a

non-residential premises and the rent being more than Rs.500/-,

the petition under the provisions of the then Karnataka Rent

Control Act, 1961 was not maintainable.

4. The petitioner thereafter issued a quit notice calling upon

the tenant to vacate. In this quit notice, it was sated that the

agreed rent was Rs.200/- p.a. and that the property was

measuring 10 ft. by 5 ft. It had been stated in the notice that in

respect this premises, proceedings had been initiated earlier in

HRC No.12/1978 and in HRC No.3/1996, which were both

ultimately dismissed on technical grounds. It was stated that the

premises was needed by the petitioner constructing a new

structure.

5. The ultimate demand in the notice was as follows:

"10 You are hereby called upon to handover the possession of the suit premises bearing CTS No.1703, situated at Jamkhandi, failing in which my client shall take civil as well as criminal action against you."

6. As demand made in the quit notice was not complied with,

a suit for ejectment in O.S.NO.114/2003 was filed. In the said

suit, it was stated in paragraph No.4 that the plaintiff, his mother

Smt. Krishnabai and her four sisters were occupying the

premises adjacent to the suit schedule property bearing CTS

No.1704 and CTS No.1702-B and that the southern portion

bearing CTS No.1702-B and eastern portion bearing CTS

No.1704 were both residential premises and that a part of CTS

No.1704 to the northern side was utilized by the plaintiff and his

family members.

7. It was also stated that the plaintiff required the suit

premises in question as he was intending to demolish the

building namely CTS No.1703, 1702-B and 1704 with an

intention to reconstruct the building. An averment was also made

regarding the earlier proceedings in HRC Nos.12/1978 and

3/1996.

8. The plaintiff, however, in description of the suit properties,

described the properties as CTS No.1702-B and CTS No.1704,

situated at Jamkhandi. The plaint was also accompanied by a

hand sketch map, in which, the location of CTS No.1703 was

marked by means of striped lines and the sketch also indicated

the location of CTS Nos.1702/A, 1702-B and 1704.

9. This suit was stoutly contested by the tenant. The tenant

admitted that he was inducted into the property by the plaintiff's

father on an annual rent of Rs.200/- and he also admitted that

the plaintiff had succeeded to the properties along with

Smt.Kamala and Smt. Shakuntala.

10. The Tenant also admitted that the earlier proceeding for

eviction in HRC Nos.12/1978 and 3/1996, but however it was

stated that since they were dismissed, the suit was not

maintainable and it was barred by the principles of resjudicata. A

plea that the tenant had acquired title by adverse possession

was also raised.

11. It may be pertinent to state here that during the cross-

examination in O.S.No.114/2013, the following suggestions were

made by the tenant to the landlord/plaintiff:

"zÁªÁ D¹Û ¹.n.¸ÀªÉð £ÀA.1703 EgÀÄvÀÛzÉ. CzÀgÀ ¥ÀPÀÌzÀ°è £Á£ÀÄ ¸ÀÄUÀA¢ü ªÁå¥ÁgÀ ªÀiÁqÀÄwÛgÀĪÀ D¹ÛAiÀÄ ¹.n.J¸ï £ÀA.1704 EgÀÄvÀÛzÉ. ¹.n.J¸ï £ÀA. 1703 ªÀÄvÀÄÛ 1704 gÀ »A§¢AiÀÄ°è ¹.n.J¸ï.£ÀA.1702/© EzÀÄÝ

CzÀgÀ°è £Á£ÀÄ ªÁ¸À ªÀiÁqÀÄwÛzÉÝÃ£É JA§ÄzÀÄ ¸Àj."

12. After the trial, the said suit i.e., O.S.No.114/2003 was

dismissed. An appeal was preferred in R.A.No.6/2000. The

Appellate Court set aside the dismissal and proceeded to decree

the suit by its judgment dated 23.01.2009. This decree of

eviction granted by the appellate Court was confirmed in RSA

No.5214/2009. Thus, the order of eviction passed against the

tenant was confirmed by this Court.

13. Thereafter an application was filed seeking for amendment

of the judgment and decree and other documents. By the said

application, the plaintiff sought to add CTS No.1703 by replacing

the wrong CTS No.1702-B and also for insertion of the direction

arrow in the hand sketch map and for correction in the schedule

of the property number in the judgment and decree by adding

1703 and replacing the wrong CTS No CTS 1702-B.

14. The said application was contested by the tenant and the

Trial Court after hearing proceeded to dismiss the application.

For dismissing the application, the trial Court has come to the

conclusion that the plaintiff was not sure as to what was the

correct property for which he was agitating and since the

judgment and decree were based on the basis of the pleadings, it

could not be said that it was an arithmetical or clerical mistake.,

15. It is against this order refusing to amend the judgment and

decree, the present writ petition is filed.

16. The question that would arise for consideration in this writ

petition is as to whether the parties to the lis could contend that

the error in the description of the property in the plaint and as a

consequence in the decree could be corrected after the decree

had been passed.

17. As could be seen from the above narration of facts, it is not

in dispute that the tenant herein was inducted by the father of

the petitioners and the eviction proceedings were initiated under

the then prevailing KRC Act, 1961 in HRC No.12/1978. It is also

not in dispute that after the said proceedings concluded, a fresh

eviction proceedings in HRC No.3/1996 under the provisions of

the then KRC Act, 1961 was filed and this was also dismissed in

view of the decision to the effect that the provisions of the KRC

Act would not be applicable to non-residential premises.

18. It is clear from the above that litigation had ensued for

more than 24 years between the petitioners and the respondent

for eviction of the respondent. It is obvious that in a litigation

that spanned 24 years in respect of eviction, the parties to the lis

were acutely conscious of the fact that the litigation was in

respect of a property which was in possession of the tenant.

More importantly, the tenant was definitely conscious of the fact

that an attempt was being made to evict him from the tenanted

premises through the process of the Court.

19. It is to be noticed here that on the conclusion of the

proceedings under the Karnataka Rent Control Act, proceedings

for ejectment were initiated under the Transfer of Property Act.

As required under the T.P. Act, a quit notice was issued and in

this quit notice it was clearly mentioned that the quit notice was

being issued in respect of CTS No.1703.

20. Pursuant to the said quit notice, a suit was filed on the

basis of the quit notice and the basic premise of the suit was that

it was for ejecting the tenant and was based on the foundation of

the quit notice. These essential facts cannot at all be in dispute.

21. In fact the tenant not only admitted the earlier proceedings

but also the issuance of quit notice. Though the defendant took

up various pleas in his written statement, he basically admitted

the tenancy, the annual rent and also the earlier proceedings. He

also admitted that he was doing business in the shop premises.

22. It is important to notice that nowhere in the written

statement did the defendant put forth a plea that the suit for

ejectment was in respect of a premises which was not in his

possession.

23. To put it differently, the tenant did not dispute the fact that

the plaintiff was seeking for possession of the shop premises

which was in his possession.

24. If the tenant had stated that the premises in respect of

which possession was being sought for was a premises which

was not in his possession, the suit would not have been

proceeded at all. In fact, if it was the plea of the defendant that

the plaintiff was seeking for possession of CTS No 1704 and

1702-B, he would have simply stated that the plaintiff was

seeking for possession of the premises which were already in the

possession of the plaintiff. Since such a plea was not raised

either directly or indirectly, it will have to be held that the

defendant was aware of the fact that ejectment ought for was in

respect of his possession over premises CTS No 1703/B

25. However, since the suit was decreed as prayed for in the

plaint, the description of the suit schedule properties stated in

the plaint the decree came to be drawn up as a decree in relation

to CTS Nos.1702-B and 1704. Since the property bearing CTS

No.1703 was not found in the plaint, the same was also not

reflected in the decree.

26. This statement in the decree that it pertained to CTS No

1702-B and 1704, according to the tenant, invalidated the

decree completely and the decree could not be used to evict him

though he had contested the suit right up to the High Court and

had lost. In other words, a technical plea was sought to be raised

that as the decree did not contain CTS No.1703, the defendant

could not be evicted.

27. As stated above, at the very beginning, in the quit notice

itself, a clear statement was made that the defendant was in

possession of CTS No.1703 and he was being asked to quit and

deliver the possession of this premises. In fact, the defendant

himself suggested to the plaintiff, during trial, that the suit

premises was bearing CTS No.1703. These two factors by

themselves are adequate to come to the conclusion that the

decree that was passed was essentially in respect of CTS

No.1703 and not in respect of CTS Nos.1702-B and 1704.

28. Another reason as to why this is the only possible

conclusion is that the plaintiff had also enclosed a hand sketch

along with the plaint and in this hand sketch, he had clearly

marked out CTS No.1703 in striped lines and also marked out

the adjoining CTS No 1702/A, 1702-B and 1704 as abutting CTS

No 1703/B, thereby indicating, that was the subject matter of

the dispute was CTS No 1703/B.

29. It is to be stated here that O 7 R 3 of the CPC requires that

the plaint should contain a description of the property which

would be sufficient to identify it and in case the property could

be identified by boundaries or numbers in a record of settlement

or survey, such boundaries or numbers are required to be

specified. The intent behind this rule is that whenever a suit was

in respect of an immovable property, the plaint should contain

which would facilitate the identification of the property. This

would not lead to the conclusion that the details of the property

mentioned in a schedule would alone govern the description of

the property. The plaint as a whole would have to be read to

identify the property in respect of which the suit had been filed.

30. The plaint averments in paragraph No.2 read as follows:

"After the death of plaintiff's father in the year 1947, the plaintiff, his mother Smt.Krishnabai and his four sisters were occupying the premises adjustant to the suit schedule property bearing CTS No.1704 and CTS No.1702-B. The Southern portion bearing CTS No.1702-B and eastern house CTS No.1704 were residential premises and part of CTS No.1704 to the Northern was utilized by the plaintiff and his family members for Sugandhi Shoop"

31. These averments by themselves clearly indicate that the

property which was the subject matter of the suit was CTS No

1703. This is because, the plaintiff had described the properties

abutting the suit property and had stated that he, his mother

and four sisters were staying in the properties adjacent to the

suit property bearing no CTS Nos.1704 and 1702-B. This

assertion of the plaintiff in paragaph 2 of the plaintiff was not

disputed by the defendant at all. This would therefore indicate

that the defendant was also aware of the fact that the entire

eviction proceedings was in relation to CTS No.1703.

32. In view of these in-disputable facts, it cannot be held that

the mere omission to mention CTS No.1703 in the schedule to

the plaint would invalidate the entire decree. If an omission in

the schedule can be used to invalidate a decree drawn up after a

long drawn out litigation spanning more than 43 years, as of

today, it would be a real travesty of justice.

33. It is to be borne in mind that when the parties go to trial,

they are fully conscious of the subject matter of the dispute and

in the present case, the defendant was definitely conscious of the

fact that the CTS No.1703, which was in possession, was

undoubtedly the subject matter of the eviction proceedings.

34. In my view, having regard to these set of facts, the Trial

Court ought to have permitted the amendment to the judgment

and decree and could not have come to the conclusion that only

arithmetical or technical errors in a decree can be corrected.

35. The power to ensure that justice be done is inherent in

every court, whether they are statutorily embodies or not. It is

precisely for this reason that Section 151 of CPC has been

engrafted in the CPC. S. 151 of the Code saves the power that is

inherent in the every Court to do justice by stating that nothing

in the Code would deem to limit or otherwise affect the inherent

powers of the Court to pass such orders as are necessary in the

ends of justice or to prevent abuse of the process of the Court.

36. Merely because, there is no express provision in the Code

which would permit of amendment of the judgment and decree

which reflected an obvious mistake in the schedule to the plaint,

that would not in way deemed to limit the power of the Court nor

would it take away the power of the Court to cause the

correction of the obvious mistake in relation to the property

which was the subject matter of the suit in the judgment and

decree. This is exactly why Section 151 of CPC uses the

expression shall be deemed to the limit the inherent power of the

Court to make such order as would be necessary to meet the

ends of justice or prevent the abuse of process of Court.

37. If it is to be held that the Courts are helpless to correct an

obvious error that would only mean that a litigant would basically

abuse the process of the Court and that would result in a

complete miscarriage of justice.

38. I am therefore of the view that the decision of the trial

Court in refusing to amend the judgment and decree is incorrect

and the same requires to be set aside.

39. Assuming that the power under Section 152 of CPC was

not available or assuming that invocation of Section 152 was

improper, the trial Court should have nevertheless invoked its

power under Section 151 of CPC and ought to have passed

orders and corrected the decree to the effect that it pertained to

CTS No 1702-B in order to prevent miscarriage of justice.

40. I am therefore of the view that this is a case were Section

151 of CPC would have to be invoked and inherent powers

available to this Court will have to be exercised. It is hereby

ordered that the judgment and decree obtained by the plaintiff in

R.A.No.6/2007 should be construed as being a judgment and a

decree granted for the possession of CTS No.1703 as indicated in

the hand sketch map and the suit schedule property used in the

decree should be construed as property bearing CTS No.1703

notwithstanding that the fact in the plaint the words CTS

Nos.1702-B, 1704 has been mentioned.

41. The impugned order is set aside and it is hereby held that

the decree obtained by the plaintiff is in relation to property

bearing CTS No.1703.

42. The writ petition is accordingly disposed of.

Sd/-

JUDGE Vnp*