1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3406 OF 2010 Motichand Raghunath Ahir @ Yadav ...Petitioner vs. Radhabai w/o Krishna Sawant & Anr. ...Respondents Mr.G.S.Godbole a/w Ms Pallavi Dabholkar i/b Mr.P.H.Dharmadhikari for the petitioner Mr.Mohan Dhamal for the respondent No.1 CORAM :A.S.OKA,J. DATE : MAY 7, 2010 P.C.: 1 The learned counsel for the parties were put to notice that the petition will be taken for final disposal at admission stage. Accordingly, the submissions of the learned counsel for the parties were heard on the earlier date. The first respondent is the original plaintiff and the petitioner is the 2nd defendant. The second Respondent is the 1st defendant. A suit was filed by the first respondent for possession of the shop premises against the petitioner. The suit was decreed on 11th September 1996. A decree for possession was passed against the petitioner and the 2nd respondent. There is no dispute that as of today the decree has attained finality. An execution application has been filed by the first respondent for executing the decree for possession. 2 A Chamber summons was taken out by the first respondent in the disposed of suit. In the chamber summons, the following two prayers were made : 2 (a)This Hon ble Court be pleased to make appropriate correction of the number from Sawant House 168 to the correct number Sawant House 167 and Kurla Bombay-400 070 to Kurla Bombay-400 022 wherever the same appear in Judgment and decree and in warrant of possession issued in execution of decree accordingly. (b)That the plaintiff be allowed to carry out an amendment to the plaint in terms of the Schedule annexed herewith. 3 The Chamber Summons was made absolute in terms of prayer clause (a) by order dated 9th September 2009. Thus, the learned trial Judge directed that amendment be carried out to the Judgment and the decree in the suit. The learned Judge however observed that the plaint cannot be amended at that stage. An application for review of the said order was made by the petitioner. By the impugned Judgment and Order dated 20th March 2010, the learned trial Judge dismissed the application for review. While dismissing the application for review made by the petitioner, the court observed that only mistake which appears to be on the face of the record is that the Court did not allow the amendment of the plaint. The learned Judge observed that as the prayer clause (b) of the aforesaid Chamber Summons was not granted, the effect is that the Judgment and decree is corrected without there being amendment to the plaint. Therefore, while dismissing the application for review made by the 3 petitioner, the learned trial Judge permitted the first respondent-plaintiff to carry out amendment to the plaint in terms of prayer clause (b) of the said Chamber Summons. 4 The learned counsel for the petitioner submitted that the first respondent did not challenge the order passed on the Chamber Summons to the extent to which the prayer clause (b) of the Chamber Summons was rejected. He submitted that the first respondent did not seek review of the order dated 9th September 2009 to the extent of rejection of the prayer for amendment of the plaint. He submitted that while deciding the application for review made by the petitioner, the learned trial Judge had no jurisdiction to grant a relief of a drastic nature to the first respondent by permitting the first respondent to carry out amendment to the plaint for correcting the description of the suit premises. He submitted that the trial Court lacked jurisdiction to pass such an order on the review petition filed by the petitioner. He submitted that the said part of the order is in breach of the principles of natural justice in as much as the petitioner was never put to notice that the trial Court was desirous of reviewing that part of the order on the Chamber Summons by which the prayer clause (b) thereof was rejected. 5 The learned counsel for the petitioner further submitted that the decree passed in the suit has to be consistent with the plaint. He pointed out that the effect of order dated 9th September 2009 passed 4 by the trial Court on the Chamber Summons is that the description of the suit premises in the decree has been permitted to be amended which will have the result of drawing a decree containing the description of the suit premises which is inconsistent to the description in the plaint. He, therefore, submitted that there was an error apparent on the face of the record of the order dated 9th September 2009 in as much as the Court could not have permitted amendment of the decree without allowing the amendment to the plaint. He submitted that while rejecting the prayer (b) of the Chamber Summons, prayer (a) thereof could not have been granted. 6 The learned counsel for the first respondent submitted that the decree has attained finality and there is no dispute about the identity of the suit premises. He submitted that as there is no dispute regarding the identity of the suit premises, the learned trial Judge was justified in permitting the amendment of the description of the suit premises in the plaint while deciding the review application filed by the petitioner. He submitted that substantial justice has been done by the trial Court and therefore, no interference is called for in writ jurisdiction under Article 227 of the Constitution of India. 7 I have given careful consideration to the submissions. It is not in dispute that as of today that the decree for possession passed against the petitioner has become final. In the Judgment 5 delivered in the suit, it is stated that the first respondent was claiming to be the owner of the Sawant House situated at 168, Swadeshi Mill Road, Kurla, Bombay  70. It is alleged that the first respondent s husband was running a tailoring business in shop no.5 (suit premises) in the said property. It was alleged that under an agreement, the first respondent s husband had given the business for conducting to the 2nd respondent for a period of 11 months. After the death of her husband, the first respondent permitted the 2nd respondent to conduct business under an agreement for a limited period. The allegation is that instead of vacating the suit premises, the 2nd respondent inducted the petitioner who started running a business in the suit premises. The defence of the petitioner in the written statement seems to be that the first respondent s husband had let out the suit premises to the 2nd respondent and that the 2nd respondent assigned the business in the suit premises to the petitioner. From the Judgment in the suit and from the issues framed, it appears that there was no dispute about the identity of the suit premises and it appears that all the parties to the suit knew the suit premises in respect of which the suit for possession was filed. In the Chamber Summons taken out by the first respondent, a prayer was made for correcting the house number of the building in which the suit premises was situated. Prayer clause (a) was for correcting the Judgment and decree for incorporating the number of Sawant House as 167 in place of 168. A prayer was also made for substitution of the pin code number 6 400070 by 400022. By the prayer clause (b) a similar amendment was sought to be made to the plaint. In paragraph 9 of the order dated 9th September 2009 passed on the Chamber Summons, the learned trial Judge observed thus : 9...It is nobody s case that there exists Sawant House 168, Bombay-70 and that there exists another premises in the said chawl or that Defendants have understood the premises to be of Sawant House 168,Bombay-70 and not of 167, Bombay-22. It was argued that matter went up to the Hon ble Supreme Court. The aforesaid mistake is repeated before all the Courts. It appears to me that the said mistake purely an accidental slip and is a bonafide mistake on the part of the plaintiff particularly when there is no house as Sawant House 168, Bombay-70 . If that be the case, the only house in existence is Sawant House 167,Bombay-22 . The argument as advanced by Advocate Mr.Advani for Defendants that one Sitabai R. Sawant had filed suit against the present plaintiff in respect of the suit premises showing address as 167 Sawant House... to show that the plaintiff was aware of the address and number of the said house would further make it clear that both parties understood the property to be Sawant House 167 and that the mistake committed by the Plaintiff is an accidental and not intentional. The Defendants could not show as to what benefit would Plaintiff had achieved or might achieve by showing address of the suit premises as Sawant 7 House 168 in place of Sawant House 167 . It is, therefore, absolutely clear that the mistake committed by the plaintiff in mentioning the address of the suit premises is a bonafide mistake. I have already recorded that in such circumstances, it will not be proper to direct the plaintiff to file separate suit when the mistake committed clearly appears to be bonafide. In such circumstances, the correction as sought by the plaintiff though cannot be granted under section 152, CPC, but in my view, the present case is fit to invoke inherent powers to meet the ends of justice. The decree needs correction to that effect though the plaint cannot be amended at this stage... 8 In the plaint, it was stated that the suit premises is situated in Sawant House situated at Swadeshi Mill Road, Kurla, Bombay-400 070. However, the number of Sawant House is mentioned as 168 and pin code number is stated to be 400070 instead of 400022. The amendment of the pin code of Kurla was absolutely of a formal nature as there is only one suburb by the name Kurla forming part of Mumbai Suburban District. As rightly observed by the trial Court, it was not the case of the petitioner that he was holding one premises in 168, Sawant House and the other in 167, Sawant House. On plain reading of the Judgment in the suit, there appears to be no dispute regarding identity of the suit premises and the petitioner and the 2nd respondent were fully aware about the identity of the suit premises in respect of which a decree has been passed. In fact, 8 there was sufficient description of the suit premises on record to enable the executing Court to execute the decree. 9 In view of the law laid down by this Court in case of Narhari Balku Kavade (Deceased) and others vs. Hanmanta Timma Pujari (Deceased) and others [2004 (3) Mh.L.J 782], for correcting the description of the suit property after passing of the decree, the Court possesses sufficient power under section 151 and 153 of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). Once, amendment of the plaint for correcting the description of the suit premises is allowed, the decree will have to be amended by exercising power under section 152 of the said Code. 10 While passing the impugned order, the learned Judge has rightly observed that the Court had power to permit amendment of the plaint for correcting the description of the suit premises even after passing of the decree. However, the learned counsel for the petitioner is right to the extent that in a review petition filed by the petitioner, the trial Court could not have amended earlier order passed on the chamber summons and permitted the first respondent to amend the plaint in terms of the prayer clause (b) of the chamber summons. While dismissing the review application made by the petitioner where the review was sought of the order passed on the chamber summons to the extent to which it was made absolute in terms of prayer clause (a), the Court could not have modified the order passed on the Chamber 9 Summons to the benefit of the first respondent by granting prayer clause (b) of the Chamber Summons. Therefore, that part of the impugned order will have to be set aside. It is obvious that the remedy of the first respondent to challenge that part of the order dated 9th September 2009 passed on the Chamber Summons by which prayer clause (b) was rejected always remains open. 11 Now, coming to the merits of the review petition, there is a finding recorded in the Chamber Summons which has been already quoted above to the effect that there is no dispute regarding identity of the suit premises in respect of which the decree for possession has been passed. As noted by the trial Court in the order on the Chamber Summons, there were no two separate properties by the name Sawant House bearing house nos.167 and 168. In fact, the Court rightly observed that there is no house such as Sawant House 168, Bombay 400070. With a view to give true meaning to the decree for possession which has attained finality, the trial Court permitted the amendment of the decree. The said order was legal and proper in view of the fact that there was never any dispute regarding identity of the suit premises. Therefore, the learned trial Judge was right in rejecting the prayer for review of the order granting prayer clause (a) of the Chamber Summons. Therefore, impugned order in so far as it rejects the review application will have to be confirmed. However, the other part of the impugned order will have to be set aside with liberty to the first respondent to file appropriate 10 proceedings as regards rejection of the prayer clause (b) of the Chamber Summons no.234 of 2008. 12 Hence, I pass the following order : i) Impugned order in so far as dismissal of the Review Petition is concerned stands confirmed. That part of the impugned order by which 1st the respondent has been permitted to carry out amendment of the plaint in terms of prayer clause (b) of the Chamber Summons is set aside with liberty to the 1st respondent to file appropriate proceedings including the proceeding for challenging that part of the order passed on Chamber Summons No.234 of 2008 by which the prayer for amendment of the plaint was rejected. ii) Stay granted by the trial Court will continue to operate till the end of June 2010. iii) Petition is partly allowed in above terms. JUDGE