Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum and anotherl

Judgment

1. 2 [rTPuT @ Jannepally Bhanumathi, D/o. Bal Bhagwan Reddy @ Tirupathi Reddy, Age.45 yeirs,-Occ. Housewife, Cl".'X. S*"rioopa, ny6.E.r.ro.f_a's,' Shobhanadripurim Mandat, Ramannafei, Vil;;i Ejh'oigir oisirici.'- - --' Kumbam Bhagya Laxmi @ Bala Swaraswathi, D/o. Ba rirupath i t"9ii, ag".',iolears, occ. Housewire, *r. !3!,"N1?]ff Xo#.%, L;omplex, Zaihind Nagar, Uppal, Medchal _ Malki.lgiri District. ...Respondents/plaintiffs

3. Bal Bhagwan Reddy (died), his LRs. 4. Dasari Bala Guruvaiah, S/o. Chinna Guruvaiah, Age. 41 years, 5. Dasari Pandu Guruvaiah, S/o. Chinna Guruvaiah, Age. 40 years, 6. Dasari Palla Guruvaiah,, Age. 50 years (Respondent Nos.4 to 6 are Rl/o. Pattepahad Vilage, Thurka-paily tviandat, y;;-ad;i Bho;g,i oil'ir[il' " ' " "

7. Anuguta Maila Reddy ldied), his LRs 9 to .12 8. 5, Swaroopa,-Wo. Late K..Bal.Bhagvan Reddy, R/o. pallepahad Viltage, Thurkapally Mandal, yadadri Bhongir Districi. '' 9. A. Santiamma, W/o. Late Malla Reddy, Age. 65 years, 10.A. Mahipal Reddy, S/o. Late Malla Reddy, Age. 37 years, 1 1 . A. Siva Kumar Reddy,, Sio. Late Malla Reddy, Age. 35 years 12. Sasidhar Reddy, S/o. Late Malla Reddy, Age. 33 years. Resoondent Nos. 9 to 12 areRlo. HP Petrol Bunk back side, Chilka Nagar, Main Road, Uppal, HYderabad. (The petitioners are not seeking any relief against the Respondent Nos.4 to i2 as such they are not necesshry parties to this case) ... Respondents/Respondents/Defendants 13. Kumbam Sreenivas Reddy (died), S/o. Laxminarsimha Reddy (dled) 7 His LR - Moir,.i Kumbam Varammi ioieai, wlo. Late Laxmi Narasimha Reddy, Age. AS y.rr., Rl/o. PallepahaO Vittagd of Thurkapally Mandal, Yadadri Bhongir District. ...RespondenUPetitioner No.2/Defendant No.7 A NO: 1 OF 2023 Petition under section 151 of cPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to stay all further proceedings in o.s.No.49 of 1989 on the file of irrincipal Senioi Civil Judge at Bhongir, pending disposal of the main C.R.P' Counsel for the Petitioner: SRI NARENDAR JALLI

Counsel for the Respondent No.2: SRI PULIMAMIDI SHASHIDHAR REDDY The Court made the following: ORDER 4 LNA, J CRP.No.213J of202J HON'BLE SRI JUSTICE LAKSHMI NARAYANA ALIST{ETTY CIVIL REVISION PETITIONNo.2433 of 2023 ORDER: The order dated 04.04.2023 passed in IA.No.462 of 2019 in OS.No.49 of 1989 on the file of Principal Senior Civil Judge, Bhongir, is under challenge in the Revision Petition.

2. Heard Sri Jalli Kanakaiah, leamed senior counsel appearing for Sri Narendar Jelli, leamed counsel-on-record for revision petitioner, and Sri Pulimamidi Shashidhar Reddy, leamed counsel flor respondent No.2.

3. The petitioner is defendant No.5, respondent Nos. I and2 are plaintiffs and respondent Nos.3 to 13 are defendants in the suit.

4. [n nut-shell, the facts of the case, required for adjudication of the present Revision Petition, are that respdndent Nos.l and 2 filed suit in O.S.No.49 of 1989 for partition and separate possession of the suit schedule propefty. The petitioner entered appearance, engaged a counsel and filed written statement on 22.12.1992, but, later, he was set ex parte on 06.03.1996 as he failed to appear before the Court and there was no representation on his behalf and the suit was decree ex parte on 21.02.199g and a preliminarry 5 LNA, J CRP.No.2433 oI2023 ! decree was passed. Subsequently, the matter was car:ried in appeal to this Court vide AS.No. 1260 of 1998 by the legal heirs of defendant No.6, who purchased the land from respondent No 3, and this Court vide order dated26.l0.20t8 dismissed the said Appeal' Later, respondent Nos.l and 2/plaintiffs filed two applications- IA.No. 170 of 2Ol9 for appointment of an Advocate Commissionertofixtheboundariesandallottheirshareinthe suit schedule properties, and I'A'No' l 73l2ol9 for passing of the final decrec- In the meanwhile, the petitioner/defendant No'5 filed 4.1 . Appeal-ASSR.No.36454 of 2019 before this Court for amendment of preliminary decree and the same was returned and consequent thereto, he approached the District Court and filed Appeal atong with an application for condonation of delay, however, thc said application was dismissed as the delay was inordinate. Again, the petitioner/defendant No'5 along with respondent No.13 herein'/defendant No 7 had preferred appeal against thc ex parte decree vide ASSR'No'731 of 2O2l along with an application-IA.No' l0l of 2019 to condone the delay of 8030 days in preferring the appeal and the said application was dismissed by the District Court on 01 '12'2021 ' Challenging the said dismissal order, they filed CRP'No'59 of 6 LNA, J CRP-No.24ll of 2021 2022 and this Court after appreciating the material on record, dismissed the CRp, vide order d,ated 2l .09.2022. Thereafter, the petitioner along with respondent No. 13 filed the present application-IA.No.462 of 2019 before the principal Senior Civil Judge, Bhongir, to amend the preliminary decree by deleting the lands belonging to them which were shown as .A, schedule land of preliminary decree passed in OS.No,49 of 1989

5. The trial Court vide impugned order dared 04.04.2023 dismissed the said application with observation that petitioner and respondent No.l3 herein had preferred appeal in ASSR.No.36454 of 2O19 and the same was rerurned by the High Court on the point of jurisdiction and ultimately, it was dismisscd by the District Court. Thereafter, they filed appeal_ ASSR.No.l3l of 2O2l along with application vide IA.No. l0l of 2019 fbr condonation of delay, however, the said application was dismissed and as such, the application is nothing but review and the Courtr cannot transverse beyond Lhe scope of preliminary decree. Aggrieved by the same, the present Rcvision is filed. 6. Learned senior counsel appearing for the revision petitioner submitted that earlier, suit in OS.No. 133 of 1986 7 LNA, J CRP-No.2.t3l o12023 filed for partition was decreed on 30.07.1986 under which the petitioner got subject lands on par with father of respondent Nos.l and 2, therelbre, the same could not have been included in the suit-OS.No.49 of 1989 filed by respondent Nos' l and 2' He further submitted that the decree passed in OS'No'133 of 1986 has becotne final as no appeal is preferred against the same, therefore, including the lands of petitioner which are part of earlier decree is bad and the decree passed in OS'No'49 of lgSgisalsounsustainableinsofarasthepropertiesallottedto the petitioner in thc carlier suit-OS.No' 133 of 1986 is concerned. 6.1. Learned counsel further submitted that the decree passed in thc present suit is an ex parte decree and the same was challcnged by hling appeal, however, unfortunately the same was dismisscd on the ground of delay, therefore' the petitioner filed the apptication for deletion of lands belonging to them in preliminary decree and the trial Court, instead of allowing the apptication, dismissed the same on erroneous observations and as such, the impugned order is unsustainable andisliabtctobcsetasidc.Hefurthersubmittedthattomeet the ends of justice, the triat Court ought to have allowed the application instead of disn'rissing the application' which will 8 LNA, J CRP.N,.2$3 of 202J result in grave inj ustice and loss to the petitioner. He further submitted that the trial Court has ample powers to entertain the application filcd by the petitioner, however, it failed to exercise the powcrs conferred on it under Section 152 CpC and hence, the impugned order requires interference by this Court. 7. In support of his contentions, learned counsel for petitioner rclief upon the following judgments: (1) Koushik Mutually Aided Cooperative Housing Society versus Ameena Begum and anotherl (2) Shakri Press Ltd., Nagpur versus Divya Shati paper Mitls Pvt.Lrd, Hyderabadz (3) Esha Bhattacharjee versus Managing Committee of Raghunathpur Nafar Academy and others3 (4). Tandra Satyanarayana Rao versus Tandra paparao and othersl (5). H.Krishnan and ors versus Mohammed alias Kunhan and orss I zozr py ar-o rz:1sc; ' zr-tz+ 1t 1 ,rlo 7r7 051 1Dg1 ' (aB)1?sCC hrq o rssz 1z; ,rLt +z+ 1sa1 5 eln zooo rEneLa r:s 9 LNA, J CRP-No.2133 of 2023 (6). State Bank of Hyderabad versus B' Rangaswamy (deceased bY LRs) and others6 (7) K. Rani versus Hanumaiah Goud and anotherT (8) Pinipe Mallamma and others versus Kunche Chinna Mangamma and otherss (9). Tilak Rai versus Baikunthi Devi (D) By LRs e (10). Yempalla Ramaiah versus Pallamparthi Krishna Reddy and othersro (11). Syed Maqdoom Shah and another versus Basheer Khatoon and othersll (12). Inder Singh versus The State of Madhya Pradeshr2

8. Per contra, learned counsel for respondent Nos'l and 2 submitted that the petitioner was set ex parte in the suit and he did not take steps to get the same set aside and consequently' the suit was decreed ex parte' The petitioner filed appeal assailing the ex parte decree along with an application for condonation of inordinate delay and the same stood dismissed' 6 ArR zooa aruoHne PRADESH 91 7 n14 6\ ALD 387 8 2002 SuPPl. (1) ALD 781 9 . 20oe (3) ALD 23 (SC) 10 2Cf7 (4) ALT 677 I I zoos (s) elo ooz t2 zoz ll.tsc :ez t0 LNA, J CRP.No.2$3 of202j Subseque ntly, the peritioner arong with respondent No. r3 fired ASSR.No.36454 of 2O24 seeking modification of rhe decree, however. the same was returned for want of pecuniary jurisdiction and subsequent.ly, the same presented before the District Court along with an application for condonation of delay of 8030 days and the same was dismisse d onol.r2.2o2r, against which CRp.No.59 of 202 was filed and the same was also dismissed on 2l .09.2022. Thus, the judgment and decree passed in OS.No.49 of l9g9 has become final.

8. 1. Learned counsel further submitted that the scope of Section 152 CpC is very limited and under Section 152 CpC, the court is empowered onry to correct the clerical error or arithmetic mistakes in thc judgments and the same cannot be invoked for substantial relief of modifying the decree and prayed to dismiss the Revision, as the same is devoid of merits.

9. In support of his contentions, learned counsel for respondent relied upon the judgment of the Hon,ble Supreme Court in Bijay Kumar Saraogi Vs. State of Jharkhanlt3, wherein it is held as hereunder:_ \Idoslz scc z+a LNA. J CRP.No.2433 of 2023 1 "section 152 CPC cannol be invoked for claiming a substantive relief which was not granted under the rlecree, or as a pretexl to get the order' which has attained finalitY reviewed' "

10. This Court gave its earnest consideration to the submissions advanced by learned counsel for both the parties' Perused the entire material available on rccord' The core issue that talts for consideration in this 1 1 . Revision is whether the trial Court under Scction 152 CPC is empowered to amend the preliminary decree?

12. The judgment of this Court in Shakti Press .Ltd'' Nagpur's case (cited supra) and the judgment of the Hon'ble Supreme Court in Esha Bhaltachariee's case (cited supra)' which were relied upon by the learned counsel for petitioner' are with regard to condonation of delay in frling the appeal when sufficient cause is shown.

13. In the present case, the issue as regards the delay is no longer res integra,, as the same was already dealt with by this Court in CRP.No.5gof2022,whereinthisCourtobservedthatthepetitioner failed to explain sufficient cause for condonation of inordinate a"6y inapproaching the Court. z t2 LNA, J CRP.No.2433 oJ 2023

14. Therefore, the aforesaid judgments are not of relevance for adjudicating the present Revisiqn.

15. In Tandro Satyanarayana Rao,s case (cited supra) and State Bank of Hyderabad, Branch l;ltanaparthy,s case (cited supra), it was categorically held that if there are any such errors arising from accidental slip or omission, they can be corrected subsequently not only in the decree drawn but even in the Judgment pronounced and signed by the Court. 16. In the instant case, there is no such mistake or slip or omission in the decree which the Court had originally intended to provide or grant such relief which was, however, omitted in the operative portion of the Judgment. Therefore, the said cases are not applicable to the present.

17. The judgment in Titak Raj,s case (cited supra), the Hon'ble Supreme Court held that any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the codrt for sub-serving the cause ofjustice. 18. Coming to the present case, no clerical error is committed in the preliminary decree passed in OS.No.49 of l9g9 which is to 1l LNA, J CRP.No.213l of 2023 l .l be rectihed by the Courl by exercising the inherent power under Section 152 CPC. lg. In K.Rani's case (cited supra), amendment of decree was sought as the boundaries mentioned in the decree did not tally with those found on physical inspection of the suit schedule property and therefore, the erstwhile High Court of Andhra Pradesh has permitted to amend the decree.

20. The present case is altogether on a different footing, i'e', the petitioner is claiming rights in respect of one of the schedules of preliminary decree passed in OS.No.49 of 1989 which has attained finality. Therefore, even remotely also, the said judgment is of no aid to the petitioner. 21 . In Finpe Mallamma's case (cited supra), there was a bona fide mistake in mentioning the correct survey number in the suit schedule property and as such, the same was ordered to be amended in the decree.

22. In the present, even as per the version of the petitioner, there is no such bona fide mistake with regard to extent or survey numbg or any such issue in the suit schedule property, on the other t4 LNA. J CRP.No.2133 oJ2023 hand, he is seeking to delete one of the schedule properties from the preliminary decree passed in OS.No.49 of 19g9. 23. In H.Krishnaa,s case (cited supra), the High Court of Kerala permitted amendment of the decree for inclusion of certain survey numbers as it was not the case of the defendants that the said property does not belong to plaintiffs. 24' In the case on hand, no such circumstance akin to the aforesaid case exists, therefore, the same cannot be followed for granting relief in favour olthe peririoner. 25' For adjudicating the issue involved in this Revision, it is relevant to refer to Section 152 CpC which reads as hereunder:_ " Section I 5 2- Amentlment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission mey ot any time be corrected by the Court either of its own motion or on the application of any of the parlies. ,, 26' A bare reading of Section 152 cpc makes it clear that the Court is empowered to correct the clerical errors or arithmetic .,:!qk in the judgment. Thus, the scope under Section 152 CpC is i5 LNA. J CRP.No-2431 of 2023 i l I \] very limited and the same cannot be invoked for modification or amendment of the decree or for any other substantive relieL 21 . At the cost of repetition, it is to be narrated that in the case on hand, the petitioner is seeking modification ol the preliminary decree passed in OS'No.49 of 1989 by deleting schedule 'A' property there from. Earlier, the decree passed in OS'No'49 of 1989 was challenged by the petitioner along with respondent No' l3 in two rounds of litigation, i'e', ASSR'No'36454 of 20t9 and ASSR.No.I31 of 2021, but was unsuccesslirl' as there was inordinate delay in filing the said Appeals' which was not properly explained by them. Furthermore, this Court in CRP'No'59 of 2022 has affirmed the order passed in IA'No'l0l ol 2021 in ASSR.No.131of2O2|,wherebythe.saidapplicationfiledto condone the delay in filing the Appeat seeking amendment olthe decree in OS.No.49 of 1989 was dismissed by the trial Court'

28. The above' chequered history of the case makes it abundantly clear that the preliminary decree passed in OS'No'49 of 1989 has attained hnaiitY l6 LNA, J CRP.Nq.2433 of 2021

29. The petitioner is claiming rights in respect of ,A, schedule property in preliminary decree passed in OS.No.49 of 189 on the ground that his rights in respect of the said property crystallized in the judgment passed in OS.No. 133 of 1986.

30. However, this Court, on close scrutiny of the record, found that the petitioner in his written statement filed in OS.No.49 of 1989 has not even mentioned about passing of the judgment and decree in OS.No.133 of 1986. In addition, it is pertinent ro note that the petitioner having lost twice in getting the relief of amendment of the decree passed in OS.No.49 of 1989, again filed an application under Section 152 CPC for the very same relief, which is impermissible.

31. Further, it is not the case ofthe petitioner that he is seeking amendment of preliminary decree passed in OS.No.49 of l9g9 as some clerical or arithmetic errors crept therein, whereas he is seeking amendment of,preliminary decree by deleting A schedule property mentioned therein, which, in fact, amounts to interfering or reviewing or partly setting aside the preliminary decree passed by the trial Court which cannot be permitted either by invoking t7 t LNA, J CRP.No.2433 of 202J Section 152 CPC or while exercising the supervisory jurisdiction under Article 227 of Constitution of India

32. The above view of this Court is fortihed by the judgment of the Hon'ble Supreme Court in Slate of Puniab vs. Darshan Singhta , wherein it is observed as follows: "The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin'to review or even said to clothe the court concerned. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party, if at all, is to file an appeal or revision before the higher forum or review application before the very. same forum, subject to the limitations in respect of such review. "

33. As regards exercising of supervisory jurisdiction by this Court under Article 227 of Constitution of India, the following judgments laid down the law and hold the field. (l)Garment Craft Vs. Prakash Chand Goelt5 (2)K.Vatarmathi and Others Vs. Kumaresant6 r'f'2004 (1) scc 328 t. " (2072) 4 SCC 181 l8 LNA, J CRP.No.2133 of2023

34. ln Garment Craft,s case (cited supra), the Hon,ble Apex Court held that the High Court while exercising the supervisory \ jurisdiction under Article 227 of the constitution of India does not act as a Court of First Appeal to re_appreciate, re_weigh the I evidence or factq, and that the power under Article 227 has to be exercised sparingly in appropriate cases.

35. In K.Valarmathi,s case (cited supra), the Hon,ble Apex court held that the power under Article 227 of constitution oi India is supervisory and the same cannot be invoked to usurp the original jurisdiction of the Court which it seeks to supervise.

36. In the light of the foregoing reasons and discussion, in the considered opinion of this Court, the trial Court has rightly dismissed the application fired by the revision petitioner/defendant No.5. This Court does not find any illegality or irregularity in the impugned order passed by the trial Couft, warranting interference, and accordingly, the Revision petition is liable to be dismissed. 37 . In the result,, the Revision petition is dismissed. t6 2025 sCC ontine sc 985 l9 ) LNA, J CRP.No.2433 oI202l

38. Miscellaneous petitions pending, if any, shall stand closed' No costs SD/- N CHANDRA SEKHAR RAO' E UTY REGISTRAR //TRUE COPY// S CTION OFFICER oneFairCopvtotheHon,bleSriJusticeLaxmiNarayanaAlishetty (For His LordshiPs kind Perusal) To,

1. The Principal Senior Civil Judge at Bhongir' 2. 11 LR CoPies 5. fnrUnO"r. Secretary, Union of lndia, Ministry of Law' Justice and Company 4. The Secretary, Advocates Association Library' High Court for the State of Affairs, New Delhi Telangana, High Court Buildings at Hyderabad 5. One iC to Sri Nut"ndar Jalli, Advocate [OPUC] O. Onu CC to Sri Pulimamidi Shashidhar Reddy, Advocate [OPUC] 7. Two CD CoPies - ABK HIGH COURT DATED: 2OlOBl2025 ORDER CRP.No.2433 ol 2O23 R l ris ,S f.rl o(. c 2E AUE 2025 c I _) DISMISSING OF THE CRP WITHOUT COSTS Q"6 !'{2(