Hari Singh vs Mishrilal
2023 Latest Caselaw 10551 MP

                                                              1
                                IN THE HIGH COURT OF MADHYA PRADESH
                                              AT INDORE
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                  ON THE 11 th OF JULY, 2023
                                              MISC. PETITION No. 3137 of 2023

                           BETWEEN:-
                           1.    HARI SINGH S/O VIJAY SINGH, AGED ABOUT 65
                                 Y E A R S , GRAM AMLAY PATTHAR TEHSIL
                                 SHUJALPUR DISTRICT SHAJAPUR (MADHYA
                                 PRADESH)

                           2.    DINESH S/O HARI SINGH, AGED ABOUT 35 YEARS,
                                 OCCUPATION: FARMER GRAM AMLAY PATTHAR
                                 TEHSIL   SHUJALPUR     DISTRICT  SHAJAPUR
                                 (MADHYA PRADESH)

                           3.    MAHESH S/O HARI SINGH, AGED ABOUT 30
                                 YEAR S, OCCUPATION: FARMER GRAM AMLAY
                                 PATTHAR    TEHSIL   SHUJALPUR  DISTRICT
                                 SHAJAPUR (MADHYA PRADESH)

                                                                                          .....PETITIONERS
                           (BY SHRI VARUN SHARMA, LEARNED COUNSEL)

                           AND
                           1.    MISHRILAL S/O DEVI SINGH, AGED ABOUT 70
                                 YEAR S, 44 RAJ SAMRAT COLONY FASE 2 J.K
                                 ROAD, DISTRICT BHOPAL. (MADHYA PRADESH)

                           2.    CHANDAR S/O KODERMAL, AGED ABOUT 55
                                 YE A R S , OCCUPATION: FARMER H. NO. 63
                                 SANTOSHI VIHAR COLONY AYODHYA BYPASS
                                 BHOPAL (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (BY SHRI PANKAJ KUMAR SOHANI, LEARNED COUNSEL)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

Signature Not Verified The present petition is filed under Article 227 of the Constitution of India Signed by: SOUMYA RANJAN DALAI Signing time: 12-07-2023 12:47:07

seeking quashment of number of orders passed by the First Civil Judge, Kanishtha Khand, Shujalpur, Dist. Shajapur in RCS-A/23/2023 whereby interlocutory applications filed by the petitioners has been rejected.

2. A preliminary objection was raised by the respondents that number of orders have been challenged in one petition under Article 227 of the Constitution of India and without impleading the other defendants as respondents in the present petition, the petition is liable to be dismissed.

3. Considering the aforesaid objection, the counsel for the petitioners confined his challenge to the order dated 09.05.2023 only whereby application under Order 6 Rule 17 CPC filed by the respondent-plaintiff has been allowed

and the application filed by the petitioners under Order 1 Rule 10 CPC has been rejected. He did not challenge to the other orders.

4. It is submitted that a suit has been filed by the respondent-plaintiff seeking a declaration that the defendants have no right of way on Survey No. 44/2 & 49/2. The petitioners also filed a counter suit and application under Order 7 Rule 11 CPC. The application under Order 7 Rule 11 CPC was decided by the Court below, stating that since there is no challenge to the order of the Revenue Court, therefore, the objection was not found to be sustainable. It is argued that the trial Court has erred while allowing the application for amendment in the plaint considering it to be a typographical mistake. He submits that the said mistake cannot be considered to be a typographical mistake. It is argued that the term 'typographical mistake' has been considered by the Supreme Court in the case of J. Samuel and others vs. Gattu Mahesh and others (Civil Appeal No. 561/2012). He referred para-15 of the said judgment which is reproduced as under:-

Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 12-07-2023 12:47:07

15. In the given facts, there is a clear lack of 'due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.

5. Counsel for the petitioners has referred various judgments of the Courts to contend that in order to avoid multiplicity of litigation, the other farmers of Khasra No. 49 ought to have been made party. He referred a judgment passed by the Coordinate Bench of this Court in the case of Smt. Urmila Patel & Anr. vs. Smt. Laxmibai & Ors. 2001 1 MPLJ 480 and the other judgments of the other High Courts.

6. Counsel for the respondent-plaintiff supported the impugned order and argued that there is no illegality in the impugned order. He referred to the various pleadings of the plaint and submitted that it was only typographical mistake that in the relief clause a challenge to the order passed by the Revenue Court was not mentioned. This Court has gone through the pleadings in the plaint and it is noted that in Clause-7 of the plaint, a specific challenge has been made to the order passed by the Revenue Court dated 17.06.2021 and the same

is sought to be declared as null and void. However, the said prayer is not made in the plaint.

7. Considering the same, this Court finds no illegality in the order allowing the application for amendment. The next challenge is made to the order whereby the application under Order 1 Rule 10 CPC filed by the petitioners has been rejected.

Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 12-07-2023 12:47:07

8. Counsel for the petitioners submits that considering the relief prayed by the petitioners and the Bhumiswamis of Survey No. 49/3 were necessary party and, therefore, all the farmers, who are cultivating the land on Survey No. 49 ought to have been made party. The plaintiff has filed a suit for declaration of title and injunction that the plaintiff has no right of way over Survey No. 49/2 and he has not sought any relief in respect of the other part of Survey No. 49.

9. Considering the pleadings and reliefs claimed in the plaint, it is manifest that the plaintiff is not claiming any relief against the entire Khasra No.

49. His relief is confined to challenge to the right of the way of the petitioners on Khasra No. 49/2 and, therefore, there is no illegality or perversity in the order passed by the Court below. The rule of dominus litis would come into play. The plaintiff is the master of the suit and he has to decide, who has to be impleaded party in the suit. If there is any lacuna in the plaint, the plaintiff would suffer. Apart from this, the petitioners have not impleaded the other defendants as party in the present petition.

10. In view of the aforesaid, I do not find any illegality or perversity in the impugned order warranting any interference under Article 227 of the Constitution of India.

11. Even otherwise , it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice. [See. Jai Singh and another vs. MCD, (2010) 9 SCC 385 and Shalini Shetty vs. Rajendra S. Patil, (2010) 8 SCC 329].

12. Further, a Co-ordinate Bench of this Court in the case of Ashutosh

Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 12-07-2023 12:47:07

Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another, 2004 (2) MPHT 14 held that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or the jurisdiction through available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or gross failure of justice has occasioned thereby.

13. In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed. The order impugned in the present writ petition passed by the Court below is upheld.

(VIJAY KUMAR SHUKLA) JUDGE soumya

Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 12-07-2023 12:47:07