IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).NO. 27922 OF 2010(O) ------------------------------------------- OS.190/1999 OF ADDL.SUB COURT,KOTTAYAM .................... PETITIONER(S): ----------------------- SOBHANA MANIYAPPAN,W/O.P.A.MANIYAPPAN, 47,PERUMCHERIL, PERUNNAI EAST MURI,CHANGANACHERY VILLAGE, CHANGANACHERY TALUK. BY ADV. SRI.JAMES KURIAN SRI.SANTHOSH MODAYIL RESPONDENT(S): ------------------------- 1. E.S.KUMARASWAMI, S/O.SUNDARAM ASARI, INCHAKKATTIL, KAVUMBHAGAM,MATHILUMBHAGAM KARA, THIRUVALLA VILLAGE, THIRUVALLA TALUK. 2. SIVAKAMI M.S, W/O.E.S.KUMARASWAMI, INCHIKKATTIL, KAVUMBHAGAM,MATHILUMBHAGAM KARA, THIRUVALLA VILLAGE, THIRUVALLA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.27922 of 2010 ==================================== Dated this the 14th day of September, 2010 J U D G M E N T This Writ Petition is filed in challenge of Exts.P11 and P13 orders passed by the learned Additional Sub Judge, Kottayam on Exts.P10, and P12, applications for amendment of plaint and decree for specific performance of an agreement for sale. Respondents remained absent in the suit, an ex parte decree was passed against them, that remains in force and even on Exts.P10 and P12, applications they remained ex parte in spite of service. In the circumstances it is not necessary to issue notice to respondent Nos.1 and 2 in this Writ Petition. Hence notice to respondent Nos.1 and 2 is dispensed with. 2. Petitioner-plaintiff obtained a decree for specific performance of an agreement for sale concerning 2.02 Ares of land. Petitioner wanted the sale deed to be executed through court and for preparing the draft sale deed obtained the survey plan. It was then realised that there was some mistake in the survey numbers and boundaries of the property. I am told that there is slight mistake in this regard in the agreement for sale which was carried into the plaint and consequently the decree W.P(C) No.27922 of 2010 -: 2 :- schedule carried the same mistake. Learned Sub Judge was not inclined to accept Exts.P10 and P12, applications for the reason that it appeared from the records there is no clerical or arithmetical error due to any accidental slip, petitioner wanted to carry out certain major amendments in the survey number, etc. and hence the applications cannot be entertained under Section 152 of the Code of Civil Procedure (for short, “the Code”). It is contended by learned counsel that finding of the learned Sub Judge is erroneous in that the mistake that crept in the agreement for sale is a mutual mistake which can be corrected in the same proceedings invoking the power under Section 26 of the Specific Relief Act. Learned counsel has placed reliance on the decision in Puram Ram v. Bhagaram and Another ([2008] 4 SCC 102). 3. In the light of the decision referred to supra there could be no doubt that if the mistake was mutual and there is no change in the identity of the property, even the mistake in the agreement could be corrected, not to say about the mistake in the plaint schedule and decree schedule which was carried forward from the mistaken description in the agreement for sale itself. That aspect of the matter has not been taken into account by the W.P(C) No.27922 of 2010 -: 3 :- learned Sub Judge. In view of that, observation made by learned Sub Judge that Sec.152 of the Code has no application in the circumstances cannot be sustained. At any rate Sec.153 of the Code relating to correction of proceedings could come into operation. In the circumstances the order under challenge cannot be sustained. Learned Sub Judge has to find whether the mistake was mutual, whether there is any change in the identity of property and pass appropriate orders in the light of the decision of the Supreme Court (supra). Resultantly, this Writ Petition is allowed. Exhibits P11 and P13 orders are set aside and Exts.P10 and P12, applications are remitted to the learned Sub Judge for decision in the light of the observations made above. THOMAS P. JOSEPH, JUDGE. vsv