Rezia Khatun and others Vs. Jahangir Hossain and others, 2018(1) LNJ 344

Case No: Civil Revision No. 231 of 2017

Judge: Soumendra Sarker, J.

Court: High Court Division,

Advocate: Mr. Probir Neogi, Senior Advocate, Mr. Abdul Quayum, Senior Advocate,

Citation: 2018(1) LNJ 344

Case Year: 2017

Appellant: Rezia Khatun and others

Respondent: Jahangir Hossain and others

Subject: Code of Civil Procedure

Delivery Date: 2018-06-07

or not in a mandatory form. The word shall  makes it clear as appearing in rule 19 of Order V that  it is  mandatory upon the Court to examine the serving officer to ascertain as to whether the summons were duly served, or not.  There is no doubt summons may be served  upon an adult member of the defendant family under the provisions of rule 15 of Order V of the Code as has been done in the instant case but both the courts below concurrently disbelieved that the summons was duly served upon the defendant. In case of allegation of non-service of summons upon the defendant/opposite-party, as the case may be, the onus is upon the plaintiff/petitioner that the summons of the suit or the case was served upon the defendant/opposite-party. Moreover order V, rule 12 of the Code has provided that whenever it is practicable, service of summons shall be made upon the defendant herein opposite-party in person unless he has an agent empowered to accept the service, in which case service on such agent shall be sufficient. Therefore this Court sitting on a revisional jurisdiction without any important question of law cannot interfere into such reasonable findings of the courts below.

14.        Having gone through the materials on record and particularly the provisions of service of summons upon the defendant in a suit, I am not inclined to interfere with the concurrent finding of the courts below.

15.        With regard to the decision as referred to by the learned Advocate for the petitioner, I find the same not applicable in context of the present facts and circumstances of the case and accordingly the same is not discussed.

16.        In the result, the Rule is discharged.

17.        Since the original suit was filed in the year 2007, the Court concerned is directed to dispose of the suit with utmost expedition preferably within 6(six) months from the date of receipt of a copy of this judgment.

18.        The order of stay and status quo at the time of issuance of the Rule is hereby recalled and vacated.

19.        Let a copy of this judgment be sent to the court concerned at once.

Ed.

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J.

 

Judgment on

30.11.2017

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Rezia Khatun and others

. . . Plaintiff-opposite party-- Petitioner

-Versus-

Jahangir Hossain and others

. . . Defendant-petitioner-Opposite Parties

Code of Civil Procedure (V of 1908)

Section 152

It is a decided matter in our legal arena that for the laches or fault of the lawyer, the party cannot suffer; as well as a decree cannot be infructuous. As soon as, the matter came into the notice of the plaintiffs, they filed the applications for amendment and as such the accidental mistake or inadvertent error, which was committed earlier, deserve rectification; which is not barred by any law. In this regard, section 152 of the Code of Civil Procedure provides that Clerical or arithmetical mistake in judgment,  decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties. Therefore, it is evident from the relevant law that there is no limitation of time for rectification of bona fide mistake, which is clerical or arithmetical mistake or accidental slip or omission. The statute is very much clear with regard to this, and it is a legislative recognition of the courts power to correct the fault which is bonafide and unintentional. . . . (12 and 13)

Ibrahim Sheikh and others Vs. Janab SK. Alias Janab Ali Sk. and others, 29 DLR 81; AIR (36) 1949 Madras 282; 56 DLR 221; 22 BLC (AD) 254; 18 BLC (AD) 139; 33 CWN 958; 36 CWN 97 and 17 BLT (AD) 51 ref.

Mr. Probir Neogi, Senior Advocate with

Mr. Muntasir Mahmud Rahman, Advocate

. . . For the petitioners

Mr. Abdul Quayum, Senior Advocate with

Mr. Tapan Kumar Chakraborty, Advocate

. . . For the opposite parties

JUDGMENT

Soumendra Sarker, J: The Rule issued calling upon the Opposite Party No. 1 to show cause as to why the judgment and order dated 01.12.2016 passed by the learned District Judge, Patuakhali in Civil Revision No.66 of 2015 allowing the same and setting aside the judgment and order dated 19.11.2015 passed by the learned Joint District Judge, 1st Court, Patuakhali in Title Suit No.99 of 1979 allowing the application under Order VI, rule 17 read with section 151 of the Code of Civil Procedure for amendment of the plaint and another application under section 151 read with section 152 of the Code of Civil Procedure for amendment of the judgment and decree passed in Title Suit No.99 of 1979 should not be set aside and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2.            The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present petitioners as plaintiffs instituted the original Title Suit being No.99 of 1979 in the Court of learned the then Sub-ordinate Judge, Patuakhali for declaration of title and recovery of khas possession contending inter alia that the land appertaining to Mouza Dabluganj of Kolapara police station under Patuakhali District in khatian No.295 measuring an area 9.88 acres originally belonged to one Arob Ali Sarder. Arob Ali died leaving behind two sons namely Kashem Ali and Najem Ali. Najem Ali transferred his 08 annas share in favour of one Abdul Motaleb, the predecessor of the plaintiff-petitioners by a registered kabala deed dated 16.02.1940 and the possession was delivered in favour of the purchaser. The original kabala deed of the plaintiffs was lost due to devastating cyclone in the year 1943 and taking advantage of that; Kashem Ali and Najem Ali with an ill-intention managed to get their names recorded in R.S. and S.A. khatians. After the death of Abdul Motaleb, the plaintiffs being his only heirs possessing the suit land. The defendants while threatened the plaintiffs; the plaintiffs instituted the original suit.

3.            The contrary case of the contesting defendants No.1-3 in short is thus, that the suit land originally belonged to Kashem Ali, who did never transfer the land in favour of the predecessor of the plaintiffs. The plaintiff’s predecessor only to grab the property created a forged document. The further case of the defendants is such that the plaintiffs have no right, title, interest and possession in the suit land. The defendants alleged that the original owner Arab Ali Sarder had two sons namely Kashem Ali and Najem Ali. Kashem Ali died unmarried leaving behind his only brother Najem Ali and after the death of Najem Ali his heirs are possessing the land.

4.            During trial of the original suit the learned trial court after taking evidence from the sides of the respective parties, decreed the suit on contest by his judgment and decree dated 30.11.1985 and 07.12.1985 respectively. Subsequent to that judgment and decree, while the plaintiffs have been owning and possessing the suit property; they came to learn that a mistake has been committed by their engaged the then lawyer; in the plaint of the original suit and instead of actual R.S. plot No.4893 of R.S. khatian No. 296, the learned lawyer at the time of drafting of the plaint inserted R.S. plot No.4891 wrongly. The concerned R.S. khatian No.296 has been exhibited before the learned trial court; from where it is apparent that the R.S. plot is 4893 not 4891. The plaintiffs finding necessity to correct the plot number filed an application before the learned trial court to rectify the aforesaid clerical mistake in the judgment and decree passed in Title Suit No.99 of 1979 and the learned trial court by its judgment and order dated 19.11.2015 allowed both the applications for amendment of the plaint as well as amendment of the judgment and decree.

5.            Being aggrieved, the defendants preferred a civil revision under section 115(2) of the Code of Civil Procedure in the court of learned District Judge, Patuakhali being Civil Revision No.66 of 2015 which was heard and disposed of by the learned District Judge, Patuakhali and the learned District Judge by the impugned judgment and order dated 01.12.2016 allowed the civil revision and set aside the order of the learned trial court.

6.            Being aggrieved by and dissatisfied with the impugned judgment and order, the plaintiffs have preferred 2nd Revision in this Court with leave under section 115(4) of the Code of Civil Procedure and obtained the Rule with an interim order of status quo.

7.            During hearing of the Rule Mr. Probir Neogi the learned Advocate appeared on behalf of the petitioners while Mr. Abdul Quiyum, the learned Advocate appeared on behalf of the opposite parties.

8.            The learned Advocate appearing on behalf of the petitioners submits that the learned 1st court of revision during passing the impugned judgment and order committed gross illegality and irregularity. The learned Advocate further submits that the learned trial court was quite justified and lawful in allowing the applications for amendment, inasmuch as; the amendment which was sought for; was bona fide and due to the inadvertent mistake of the engaged lawyer for the plaintiff-petitioners. The learned Advocate further submits that the learned District Judge, Patuakhali has committed an error of law resulting in an error in the decision occasioning failure of justice without considering that, it is an imperative duty of the court to correct the mistake and the power of the learned court under section 152 of the Code of Civil Procedure is unlimited and as such the impugned judgment and order is liable to be set aside. The learned Advocate also submits that the learned 1st Court of revision during disposal of the civil revision was totally misconceived in holding the view that the application for amendment is barred by limitation since there was no reason to hold such a view that the relief claimed by the plaintiff-petitioners was not within time. The learned Advocate in this context, referred a decision of this court reported in 56 DLR 221. The learned Advocate argued that the learned District Judge, Patuakhali at the time of passing the impugned judgment and order failed to appreciate that the plaintiff-petitioners in order to prove their case, adduced sufficient credible evidence and certified copy of the relevant R.S. khatian No.296 which was duly proved and exhibited and in that relevant khatian; there is no existence of R.S. plot No.4891. It is the mistake of the learned lawyer who was engaged on behalf of the plaintiffs and inserted the plot No.4891 instead of correct plot No.4893. Therefore, obviously; it was simply a clerical mistake which was inadvertent and bona fide. To rectify this wrong inclusion of plot number the plaintiff-petitioners while came to know about the misdeed of the lawyer, filed the application for amendment and the learned trial court rightly considering the facts and circumstances of the case along with the relevant R.S. Khatian allowed the application. The learned Advocate lastly submits that the citation of decisions given by the learned 1st court of revision in the impugned judgment and order are not applicable in the instant case due to distinguishable facts. The learned Advocate in support of his arguments referred another two decisions reported in 29 DLR 81 and AIR (36) 1949 Madras 282.

9.            As against the aforesaid submissions of the learned Advocate for the petitioners, the learned Advocate appearing on behalf of the opposite parties, opposing the Rule submits that the learned District Judge, Patuakhali during disposal of the civil revision committed no illegality or irregularity, rather; he was quite justified in allowing the civil revision and thereby setting aside the judgment and order passed by the trial court. The learned Advocate further submits that in fact, the decree which was passed by the trial court was on the unspecified land as described in the schedule of the plaint. There was no specification of the suit property, and it suffers from vagueness. The learned Advocate also submits that long after 30 years the applications for amendment were filed for correction of the plaint and judgment and decree which is mala fide and not tenable in the eye of law. The learned Advocate submits that under Order VII rule 3 and 4 of the Code of Civil Procedure the suit property must be specified, but the suit land which is described in the schedule of the plaint was not specified and on that schedule of the property the learned trial court illegally passed the judgment and decree. The learned Advocate lastly submits that the applications for amendment were time barred, and the learned District Judge, Patuakhali rightly treating the applications barred by limitation, passed the impugned judgment and order; which is not bad-in-law and not deserve interference of this Court. The learned Advocate in support of his contention referred some decisions reported in 22 BLC (AD) 254, 18 BLC (AD) 139, 33 CWN 958, 36 CWN 97 and 17 BLT (AD)51.

10.        Considering submissions of the learned Advocates, having gone through the order passed by the learned trial court in Title Suit No.99 of 1979 on 19.11.2015 and the impugned judgment and order dated 01.12.2016 passed by the 1st court of revision in Civil Revision No.66 of 2015 along with the relevant R.S. and S.A. khatians with the certified copes of plaint, judgment and decree, applications for amendment of the plaint as well as the judgment and decree passed by the trial court dated 07.12.1985 in Title Suit No.99 of 1979, it transpires that after the judgment and decree passed by the trial court in the original Title Suit No.99 of 1979, the learned trial court i.e. the learned Joint District Judge, 1st Court, Patuakhali received two applications from the side of the plaintiffs, one for amendment of the plaint under Order VI rule 17 along with section 151 of the Code of Civil Procedure and the other for amendment of the decree under section 151 and 152 of the Code of Civil Procedure, and after the hearing; allowed both the two applications in holding the view that; on perusal of the record; it is evident from the face of the papers that the contested judgment and decree dated 30.11.1985 and 07.12.1985 respectively was passed on the plot No.4891 of R.S. khatian No.296 corresponding to S.A. khatian No.264, but in fact; in the relevant khatians there is no existence of plot No. 4891. The learned trial court also observed that, inasmuch as; there is a wrong insertion of the plot number in the decree; the decree has become in fructuous and therefore; relying upon a decision of this court given in the case of Chand Mia and others –vs.- M.A. Rajput Ghosh Bhadur & others, 56 DLR 221, the learned Joint District Judge, 1st Court, Patuakhali allowed the applications for amendment. Subsequently, the learned 1st Court of revision vide the impugned judgment and order dated 01.12.2016 in Civil Revision No.66 of 2015 holding the view that the proposed amendment was not sought for within the statutory period of limitation and after citation of some decisions held that the order passed by the trial court suffers from illegality, and accordingly the learned District Judge, Patuakhali allowed the revisional application filed before him and set aside the order of the learned trial court.

11.        In this context; on meticulous consideration of the case records and the applications for amendment of the plaint as well as the decree passed by the trial court, I find that the plaintiffs to the suit obtained the judgment and decree from the trial court on 30.11.1985 and 07.12.1985 respectively, against which no appeal was preferred yet from the side of the defendants, and as such it stands good. Obviously it has been specifically asserted from the side of the plaintiffs that their the then engaged lawyer in advertently instead of actual plot No.4893 inserted 4891 in the plaint which have got no existence in the relevant R.S. khatian No.296 and S.A. kahtian No.264 and these khatians were produced before the learned trial court and after proof, those were marked exhibited. The learned trial court on the basis of wrong inclusion of plot number in the schedule of the plaint passed the judgment and decree which has become practically infructuous due to wrong plot number. The matter was not within the knowledge of the plaintiffs earlier, and while they came to learn about the misdeed of the then learned engaged lawyer on behalf of them, they filed the applications for amendment of the plaint and decree.

12.        On perusal of the relevant papers I find that, apparently the wrong inclusion of R.S. Plot No.4891 is a bona fide mistake of the learned the then engaged lawyer of the plaintiffs, inasmuch as; in the relevant R.S. khatian No.296, there is no existence of that plot number 4891 and there exist plot No.4893. Hence, for rectification of the aforesaid inadvertent clerical mistake, which was bona fide; the application for amendment of the plaint and decree were preferred by the plaintiff-petitioners and the learned trial court was quite justified in holding the view that there is no mala fide intention or negligence on the part of the plaintiffs as because their engaged lawyer committed the misdeed in inclusion of the actual plot number in the schedule of the plaint, which is no doubt, not the latches of the plaintiff-petitioners, and it is a decided matter in our legal arena that for the latches or fault of the lawyer, the party can not suffer; as well as a decree cannot the infructuous. As soon as, the matter came into the notice of the plaintiffs, they filed the applications for amendment and as such the accidental mistake or inadvertent error, which was committed earlier, deserve rectification; which is not barred by any law. In this regard, the relevant provision of law incorporated in section 152 of the Code of Civil Procedure reads as follows:

“Clerical or arithmetical mistake in judgment, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”

13.        Therefore, it is evident from the relevant law that there is no limitation of time for rectification of bona fide mistake, which is clerical or arithmetical mistake or accidental slip or omission. The statute is very much clear with regard to this, and it is a legislative recognition of the courts power to correct the fault which is bonafide and unintentional.

14.        I find support of this, in the decisions referred to from the side of the learned counsel for the petitioners in the case of Ibrahim Sheikh and others –vs.- Janab Sk. alias Janab Ali Sk. & others, 29 DLR 81,  and in the case law reported in  36 AIR(1949) Madras 282. Furthermore; with regard to limitation the decision cited from 56 DLR, 221 have got every nexus in this case. On the other hand, having every regard on the decisions referred to from the side of the learned counsel for the opposite parties, I am not out of place to advert that, due to distinguishable facts, features and circumstances, those are not applicable in the instant case.

15.        In the foregoing narrative, before parting, I must observe that the learned District Judge, Patuakhali, in passing the impugned Judgment and order, apparently committed an error in law, resulting in an error in the decision, occasioning failure of justice and thereby it deserve interference of this court.

16.        In the result, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 01.12.2016 passed by the learned District Judge, Patuakhali in Civil Revision No.66 of 2015 allowing the same and setting aside the judgment and order dated 19.11.2015 passed by the learned Joint District Judge, 1st Court, Patuakhali in Title Suit No.99 of 1979 allowing the application under Order VI Rule 17 read with section 151 of the Code of Civil Procedure for amendment of the plaint and another application under section 151 read with section 152 of the Code of Civil Procedure for amendment of the judgment and decree passed in Title Suit No.99 of 1979 is hereby set aside.

17.        The order of status quo granted earlier by this court at the time of issuance of the Rule stands vacated.

18.        Send down the lower court’s records immediately and communicate the judgment and order at once.

         Ed.  



Civil Revision No. 231 of 2017