Telangana High Court
Mir Moazam Ali vs Smt.Razia Sultana on 25 June, 2021
Bench: B.Vijaysen Reddy
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
CIVIL REVISION PETITION No.7702 of 2018
ORDER:
This revision arises out of order dated 05.11.2018 in
I.A.No.5353 of 2018 in O.S.No.75 of 2013 passed by the Chief Judge,
City Civil Court, Hyderabad.
2. The petitioners are the plaintiffs and the respondent is the
defendant in O.S.No.75 of2013 filed for specific performance in respect
of the suit schedule property. The suit was decreed by judgment dated
15.06.2015. The petition in I.A.No.4647 of 2016 was filed by the
petitioners/plaintiffs seeking to amend the plaint to incorporate the
relief of delivery of possession. The said petition was allowed on
06.12.2017 permitting the petitioners/plaintiffs to carry out the
amendment. However, due to inadvertence, the petitioners/plaintiffs
could not amend the plaint and file a neat copy thereof. They noticed
the said mistake when EP(SR).No.3095 of 2018 was filed. Thus, the
petitioners/plaintiffs filed an application for extension of time for
carrying out the amendment, which was allowed by order dated
05.09.2018. The petitioners/plaintiffs, thereafter, filed I.A.No.5353 of
2018 for consequential amendment of judgment and decree dated
15.06.2015 incorporating the relief of delivery of possession.
3. The Court below, under the impugned order, dismissed the
petition in I.A.No.5353 of 2018 on the ground that the relief of
delivery of possession was not mentioned in the judgment and decree.
The petitioners have not sought for relief of delivery of possession at
the time of filing of the suit. The petitioners having slept over for a
long time came up with the present petition. The present petition filed
under Order VI Rule 17 of the Code of Civil Procedure, whereas the
decision in Peethani Suryanaryana v. Repaka Venkata Ramana Kishore
[AIR 2009 SC 2141] relied upon by the counsel for the petitioner
referred to Section 152 CPC. Hence, the facts of the present case are
different from the decision relied upon by the petitioner. Further,
the Court below held that in the absence of delivery of possession in
Ex.A1, the relief sought for at this stage cannot be granted.
4. Notices were issued in the CRP. There is an endorsement that
'returned unserved, unclaimed - deemed to be served'.
5. Learned counsel for the petitioners submitted that under
Section 28(3) of the Specific Relief Act, the petitioners are entitled to
seek delivery of possession even if specifically such relief is not sought
for in the suit. The petitioners have sought amendment of the decree
in consonance with the plaint, which was amended pursuant to the
order dated 06.12.2017 in I.A.No.4647of 2016. The Court below ought
not to have dismissed the present petition in the light of the
amendment being permitted to be carried out to the plaint by
incorporating the relief of delivery of possession after the decree was
passed. The amendment in the judgment and decree is consequential
to amendment to the plaint. The Court below further erred in
dismissing the petition by ignoring the settled principle of law that
misquoting of law cannot be a ground to dismiss the petition. Even if
the provision of law is wrongly quoted as Order VI Rule 17 CPC,
the Court below should have treated it as a petition under Section 152
CPC.
6. Learned counsel relied on a decision of the Supreme Court in
BABU LAL v. M/S. HAZARI LAL KISHORI LAL1 wherein it was held
that the Legislature has given ample power to the Court to allow
(1982) 1 SCC 525 = AIR 1982 SC 1818
amendment of the plaint at any stage, including the execution
proceedings. It was held in para 20 as under:
"20. It is thus clear that the legislature has given ample power
to the court to allow amendment of the plaint at any stage,
including the execution proceedings. In the instant case the
High Court granted the relief of possession and the objection
raised on behalf of the petitioner is that this was not possible at
the execution stage and in any case the court should have
allowed first an amendment in the plaint and then an
opportunity should have been afforded to the petitioner to file
an objection."
7. Learned counsel relied upon another judgment of the Supreme
Court in PEETHANI SURYANRAYANA v. REPAKA VENKATA
RAMANA KISHORE2 which is distinguishable on facts. In the said
matter, the Supreme Court was dealing with an amendment
application under Order VI Rule 17 CPC and it was held that "the civil
court has jurisdiction to allow application for amendment of plaint after
the final decree is passed." In the instant case, after the decree was
passed on 15.06.2015, the plaint was amended by incorporating the
relief of delivery of possession as per order dated 06.12.2017 in
I.A.No.4647 of 2016 and for consequential amendment of judgment
and decree, an application in I.A.No.5353 of 2018 was filed. Thus,
the impugned order passed by the Court below is erroneous and
unsustainable.
8. The decision in BABU LAL's case (1 supra) squarely covers the
issues arising in the instant case. Moreover, the Court below having
permitted amendment of the plaint could not have declined to permit
amendment of decree, which purely consequential. Be it noted that
application in I.A.No.5353 of 2018 is filed under Section 151 CPC and
(2009) 11 SCC 308 = AIR 2009 SC 2141
not under Order VI Rule 17 CPC as pointed out by the Court below.
In any case, it is a settled proposition of law that misquoting of
provision of law cannot be a ground to dismiss an application if relief
sought for therein is otherwise within the jurisdiction of the Court.
In view of the above, the civil revision petition is allowed.
Pending miscellaneous petitions, if any, shall stand closed. There shall
be no order as to costs.
__________________
B. VIJAYSEN REDDY, J
June 25, 2021
DSK
