Mir Kazim Ali And 2 Others vs Tahsildar
2022 Latest Caselaw 2686 Tel

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        THE HON'BLE SRI JUSTICE UJJAL BHUYAN

       CIVIL REVISION PETITION No.1188 OF 2022

ORDER:

Heard Mr.Khaja Moinuddin, learned counsel for the

petitioner.

2. Petitioners were plaintiffs in O.S.No.177 of 2021. The

suit was filed against defendant No.1 for refusal to issue legal

heir certificate. In the suit petitioners numbering 3 declared

themselves as sons of late Mir Dawood Ali. The suit was

decreed by the XX Junior Civil Judge, City

Civil Court, Hyderabad vide judgment and decree dated

01.10.2021 declaring the plaintiffs (petitioners) as the legal

heirs of deceased late Mir Dawood Ali. After pronouncement

of judgment, petitioners filed interlocutory applications to

amend the name of late Mir Dawood Ali by replacing the same

with late Mir Dawood Ali Khan. After hearing the parties,

learned Court below passed the order dated 14.03.2022

holding as follows:

"As per Order VI Rule 17 CPC, that amendment of pleading can be allowed before trial. However for any amendment which is to be allowed after commencement of trial as commenced, the Court must come to a conclusion inspite of due diligence,

the parties could not raise the matter before commencement of the trial.

6. In the case on hand, the present petition is filed after the Judgment has been pronounced in the main suit. Further the reason that has been attributed for filing the present petition at such belated stage after passing the Judgment is that "due to oversight and mistake". As per Order VI Rule 17 CPC, the Court must come to a conclusion that the party seeking amendment has taken all care even after which such error had crept in. Further Section 152 of CPC, lays down provision with regard to amendment of Judgments, Decrees, Orders which lays down clerical or arithmetical mistakes in Judgments, Decrees or Orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court". From the above provision it can be seen that only clerical and arithmetical mistakes can be corrected. The present situation under which the present petitioners have been filed does not fall into the category of clerical or arithmetical mistakes and therefore this Court sees no reason for allowing the present petitions at this stage.

In the result, the petitions are dismissed".

3. Thus, what the learned Court below has held is that

ordinarily an amendment of pleading should be allowed

before trial commences. However, once the trial is

commenced, amendment of pleading can only be allowed if

the Court is satisfied that despite due diligence the parties

could not raise the matter before commencement of trial. In

the instance case, the interlocutory applications came to be

filed after pronouncement of judgment.

4. Section 152 of the Code of Civil Procedure, 1908 (CPC)

provides for amendment of judgments, decrees or orders. It

says that clerical or arithmetical mistakes in judgments,

decrees or orders or errors arising therein from any

accidental slip or omission made may at any time be

corrected by the Court either by on its own motion or on the

application of any of the parties. In the instant case, there is

no clerical or arithmetical mistake in the judgment and

decree. The judgment and decree reflects description of the

party as made in the plaint. It may also be mentioned that

there are three petitioners and all of them described

themselves as sons of late Mir Dawood Ali; none pointed that

the actual name of their father should have been Mir Dawood

Ali Khan.

5. In the hearing today, learned counsel for the petitioners

was asked by the Court as to whether there is any

documentary evidence to show that late Mir Dawood Ali and

late Mir Dawood Ali Khan is one and the same person but

learned counsel could not produce any such document.

There is even no document to show that petitioners are the

sons of late Mir Dawood Ali Khan.

6. We thus do not find any good reason to interfere with

the impugned order passed by the Court below.

7. The Civil revision petition is accordingly dismissed.

8. Miscellaneous petitions if any, pending in this civil

revision petition shall stand closed.

____________________ UJJAL BHUYAN, J

Date: 14.06.2022.

vrks

THE HON'BLE SRI JUSTICE UJJAL BHUYAN

CIVIL REVISION PETITION No.1188 OF 2022

Date:14.06.2022

vrks