The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 21-Feb-2024 13:34:31 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1568 of 2023 Bhagirathi Maharana Petitioner Mr. Rajesh Ranjan Sahoo, Advocate .... Gitanjali Maharana and others …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No. 3. 1. 2.
Decision
ORDER 19.02.2024 This matter is taken up through hybrid mode. In view of the order of even date passed in CMAPL No.27 of 2024, the CMP is restored to file. On the prayer of learned counsel for the Petitioner, the same is taken up on merit. 3. Order dated 30th November, 2023 (Annexure-6) passed by learned Senior Civil Judge, First Court, Cuttack in CMA No.112 of 2023 is under challenge in CMP, whereby an application filed under Section 152 read with Section 151 CPC for amendment of the compromise petition has been rejected. 4. Mr. Sahoo, learned counsel for the Petitioner submits that CS No.232 of 2022 was filed for partition. During pendency of the suit, parties therein arrived at a settlement and accordingly an application under Order XXIII Rule 3 CPC was filed to dispose of the suit on compromise. While drafting the petition, certain inadvertent mistakes have crept in while describing the schedule of the property. At Lot ‘C’ of Schedule ‘A’, the area has been inadvertently stated as ‘Ac.0.09 decimal’ instead of ‘Ac.0.09 decimal 619 square link (bargakadi)’. Likewise, in Lot ‘B’ of Schedule ‘A’, the area has been inadvertently stated as ‘Ac.0.08 Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 21-Feb-2024 13:34:31 // 2 // decimal’ instead of ‘Ac.0.08 decimal 632 square link (bargakadi)’. Similarly, in Lot ‘A’ of Schedule ‘A’, the area has been inadvertently stated as ‘Ac.0.08 decimal’ instead of ‘Ac.0.08 decimal 632 square link (bargakadi)’. Likewise, in Lot ‘D’ of Schedule ‘A’, the area has been inadvertently stated as ‘Ac.0.015 decimal’ instead of ‘Ac.0.015 decimal 117 square link (bargakadi)’. 4.1 After the decree was passed, the above inadvertent mistakes came to light. Hence, the Plaintiff/Petitioner filed an application for amendment of the petition under Order XXIII Rule 3 CPC and also to amend the decree accordingly. All the parties also filed a joint affidavit at Annexure-5 stating that the description of land in the petition under Order XXIII Rule 3 CPC is an accidental error and it should be corrected accordingly as stated above. Learned trial Court holding that such an amendment is not permissible under Section 152 CPC, rejected the same. Hence, this CMP has been filed for the aforesaid relief. 4.2 In this regard, learned counsel for the Petitioner placed reliance on a decision of this Court in Dillip Chandra Singh Deo Vs. Purnendu Chandra Singh Deo and another (CMP No.129 of 2023 disposed of on 11th April, 2023), wherein, this Court relying on a decision of the Hon’ble Supreme Court in the case of Niyamat Ali Molla Vs. Sonargon Housing Cooperative Society Limited and others, reported in 2007 AIR SCW 6632 and a decision of Calcutta High Court in the case of Bela Debi Vs. Bon Behary Roy and others, reported in AIR 1952 Cal 86, at para-6 held as follows:- Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 21-Feb-2024 13:34:31 // 3 // “6. Taking into consideration the submissions made by learned counsel for the parties and the case laws in Niyamat Ali Molla and Bela Devi (supra), this Court is of the considered opinion that the scope of Section 152 C.P.C. is not limited to the accidental error or omission of the Court only. It also extends to an inadvertent error or omission of a party in the suit but the same should be accidental in nature as held by the Hon’ble Supreme Court. On perusal of the materials on record, this Court finds that description of khata number in Lot No.3 of Schedule ‘A’ property as stithiban khata number ‘194’ is an accidental slip/error. Further, the same has been wrongly stated as Khata number ‘64’ in the compromise petition. In view of such accidental slip/error, learned trial Court passed the impugned order describing Lot No.3 of Schedule ‘A’ property under khata number ‘64’ instead of khata number ‘94’.” He, therefore, submits that the scope of Section 152 CPC should not be limited to the accidental error/omission of the Court in a judgment and decree only and it may travel beyond it to meet the ends of justice and correct the accidental errors/omissions committed by any party to the suit. 5. Considering the submission made by Mr. Sahoo, learned counsel for the Petitioner and on perusal of record, it appears that explaining that the aforesaid errors/omissions are accidental errors in the petition under Order XXIII Rule 3 CPC, an application under Section 152 CPC was filed for amendment of the petition for compromise and also to amend the judgment and final decree accordingly. In the case of Dillip Chandra Singh Deo (supra), this Court placing reliance upon the ratio in the case of Niyamat Ali Molla and Bela Devi (supra), held that in the facts and circumstances of the case, the Court may travel beyond correction of accidental errors/omissions in the judgment and decree to amend the accidental errors/omissions committed by a Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 21-Feb-2024 13:34:31 // 4 // party to meet the ends of justice. In the instant case, it appears that learned trial Court has not considered the matter keeping in mind the ratio in the case of Niyamat Ali Molla and Bela Devi (supra). Accordingly, this Court is of the considered opinion that the matter requires fresh consideration. 6. Hence, order dated 30th November, 2023 (Annexure-6) passed in CMA No.112 of 2023 is set aside and the matter is remitted to learned Senior Civil Judge, First Court, Cuttack for consideration of the petition for amendment of the petition for compromise as well as judgment and decree afresh giving opportunity of hearing to the parties concerned keeping in mind the ratio in the case of Niyamat Ali Molla and Bela Devi (supra). 7. The CMP is disposed of accordingly. Issue urgent certified copy of the order on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4