Kameshwar Mahto v. Most. Budhni Devi

3. Smt. Malti Devi wife of Sri Rajendra Prasad Verma and daughter of Late Panchu Mahto,

4. Birju Prasad Verma son of Late Panchu Mahto all 1 to 4 are resident of village Chachghara, P.O - Jaruadih, P.S-Jamua, District Giridih,

5. Rita Devi wife of Sri Ramchandra Mahto daughter of Late Panchu Mahto resident of village Dumma, P.O- Sakhaibad, P.S- Jamua, District Giridih,

6. Bilwa Devi wife of Sri Subodh Mandal daughter of Late Panchu Mahto resident of village Chachghara, P.O- Jaruadih, P.S- Jamua, District- Giridih,

7. Saraswati Devi wife of Sri Sukhdeo Mahto daughter of Late Panchu Mahto resident of village Dharampur, P.O- Chitardih, P.S- Jamua, District- Giridih,

8. Rajendra Prasad Verma son of Late Bhatu Mahto,

9. Sanichar Mahto son of Late Bhatu Mahto,

10. Jageshwar Prasad Verma son of Late Somar Mahto,

11. Most. Sohgi Devi wife of Late Somar Mahto 8 to 11 are resident of village Chachghara, P.O-Jaruadih, P.S-Jamua, District - Giridih, 1

12. Kaushalya Devi wife of Sri Budhan Mahto daughter of Late Somar Mahto resident of village Jaridih, P.O- Jaridih, P.S- Jamua, District- Giridih,

13. Lalita Devi wife of Sri Sudhir Prasad Verma daughter of Late Somar Mahto resident of village Chargo, P.O- Chargo, P.S-Jamua, District- Giridih,

14. Phoolmati Devi wife of Sri Krishna Kumar Verma daughter of Late Somar Mahto resident of village Dumma, P.O- Sakhaibad, P.S- Jamua, District Giridih.

15. Soni Devi wife of Mahendra Prasad Verma daughter of Late Somar Mahto resident of village Rajpura, P.O- Parsatand, P.S. Pachamba, District- Giridih,

16. Harkhi Devi wife of Late Bhola Mahto,

17. Lokai Devi wife of Late Lakshman Mahto,

18. Mantu Prasad,

19. Pintu Prasad both sons of Late Lakshman Mahto,

20. Mahendra Prasad son of Late Bhola Prasad Mahto,

21. Chando Devi wife of Mahendra Prasad,

22. Tuliya Devi wife of Chhthu Mahto,

23. Gendia Devi wife of Durga Prasad,

24. Baldeo Mahto,

25. Mahabir Mahto, 26. Babulal Mahto respondent nos. 24 to 26 sons of Late Budhan Mahto,

27. Nunulal Prasad Verma,

28. Nirmal Kumar Verma both 27 and 28 sons of Late Etwari Mahto,

29. Radhika Devi daughter of Late Etwari Mahto and wife of Suresh Prasad Verma all 16 to 29 are resident of village Chachghara, P.O - Jeruadih, P.S- Jamua, District - Giridih,

30. Umiya Devi wife of Pritam Mahto resident of village Dumma, P.O Sakhaibad, P.S-Jamua, District - Giridih,

31. Mohini Devi wife of Baleshwar Mahto resident of village Sirsia, P.O & P.S- Jamua, District - Giridih...... …… Opposite Parties CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners Mr. Shashi Kant Ojha, Advocate For the Opp. Parties : ………. : Mr. S.K. Murty, Advocate 2 04/Dated: 20/01/2025 Heard learned counsel for the petitioners.

2. This petition has been filed under Article 227 of Constitution of India for setting aside order dated 24.04.2024 passed by learned Additional Sessions Judge-I, Giridih in Civil Appeal No. 95 of 2017, corresponding to M.C.A. No. 34 of 2023 whereby the petition filed by the appellants/petitioners under order XLI Rule-27 read with section 151 of C.P.C. has been rejected by the learned court.

3. Learned counsel for the petitioners submits that the suit was instituted before the learned court for declaration of right, title and interest and no document has been brought on record before the trial court however, at the appellate stage the said has been tried to be exhibited and learned court by order dated 24.04.2024 has been pleased to dismiss the petition and erroneous ground has been taken in dismissing the petition.

4. The learned court has given cogent reason in not allowing the petition. The suit was instituted in the year, 1994 which was decided by judgment dated

23.09.2017. The Court found that in absence of any cogent reason said petition has been filed and has been pleased to reject the said petition.

5. For allowing the said petition, due diligence is necessary as has been held by the Hon’ble Supreme Court in the case of “ J. Samuel V. Gattu Mahesh”(2012) 2 SCC 300 wherein the Hon’ble Court has held as under”- “20. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit. 21. 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. 22. The claim of typographical error/mistake is baseless and cannot be 3 accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip.”

6. In view of above facts, no case of interference is made out. Accordingly, this petition is dismissed. Pending I.A, if any, stands dismissed. ( Sanjay Kumar Dwivedi, J.) Satyarthi/ 4