Section 152 read with Section 151 of the Code of Civil Procedure,Amendment of plaint schedule and Decree Schedule = The Court below failed to appreciate the legal position in the decisions of the Supreme Court in Babulal v. M/s.Hazari Lal Kishori Lal [1] ; Niyamat Ali Molla v. Sonargon Housing Coop Society Ltd., [2] ; Bela Devi v. Bon Behary Roy [3] and had erroneously dismissed the application of the DHr filed for amendment of the schedule. The Court below ought to have seen that it has got ample power to not only rectify the mistakes that have crept into the decree on account of the Court’s own accidental slip or omission but also to rectify any mistake made by the partiesm for instance a mistake in the description of properties in the deeds. The court below ought to have seen that during the entire proceedings, the identity of the property was not disputed, though the defendant/s had contested the suit on various other grounds. In the execution proceedings, when the draft sale deed was furnished, the office of the Court below had raised an objection in regard to non mentioning of the total extent of the property in the decree schedule, and, therefore, the necessity for seeking the amendment has arisen. The learned Judge erred in observing that the DHr is introducing details of door numbers of third party premiseses as boundaries of the suit schedule property on Eastern and Western sides and also measurements of his choice in the description of the suit schedule property. The court below ought to have seen that by the proposed amendment, the material particulars in regard to the description of the property are not being changed in any manner and that the identity of the property remains the same despite allowing the amendment. The court below ought to have seen that the total extent of the property, which is now being sought to be included by way of amendment is already mentioned in the suit agreement for sale, which is the basis for the suit. In the boundaries mentioned in the original schedule, the names of the occupants of the adjacent properties were mentioned, but, now, the house numbers of the adjoining properties are being shown in the boundaries of the suit schedule property by way of amendment; such, addition of the door numbers of adjacent properties in the boundaries on the East and West would in no manner modify the extent of the property. The Court below ought to have seen that by way of the proposed amendment of the schedule, the DHr is not trying to enlarge the extent of the suit schedule property. The court below ought to have seen that it is having ample power and jurisdiction to grant the relief.’= High Court held that 1. Pratibha Singh v. Shanti Devi Prasad [4] 2. Order dated 06.01.2014 of the Delhi High Court in CM(M).no.1299/2013 and CM.no.19310 of 2013 between Sh. Ashok Kumar Ahuja v. Sh. Gulab Rai Khanchandani 3. Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah [5] I have gone through the decisions cited. In view of the precedential guidance, the maintainability of the petition filed for amendment of the schedule of the plaint as well as the decree is not in doubt.= whether in the facts and circumstances of the case the amendment as sought for in respect of the schedule of the plaint and the decree shall be permitted or not. In the well considered view of this Court, while considering the said question the Court below has to incidentally consider, apart from other contentions of the parties, the question as to whether the amendment if permitted brings about any drastic or major changes in the description and the identity of the property involved in the lis. – Therefore, the DHr has to in the first place, establish that there will either be no material change, much less a major change, or a change in the identity of the schedule of property despite allowing the amendment of the schedule as prayed for. Now that this Court had held that the application is maintainable, in the well considered view of this Court, the CRP can be disposed of with appropriate directions. = the order impugned is liable to be set aside and that the execution application (EASR) has to be remitted to the Court below for disposal afresh, in strict accordance with the procedure established by law, after directing notices to the respondents and giving them an opportunity to file their counters, if any, and contest the matter. It is made clear that before considering the merits of the said application, the Court below shall register the EASR and give the plaintiff an opportunity to produce any acceptable and relevant evidence, if necessary, by seeking appointment of an advocate commissioner for identification of the property in question, to substantiate the request for amendment of the schedule.

CRP 2294 / 2015
CRPSR 10844 / 2015 CASE IS:DISPOSED
PETITIONER RESPONDENT
M/S.DECCAN ENTERPRISES PRIVATE LIMITED VS DHARAM SINGH [DIED] & 4 ORS
PET.ADV. : KRISHNA DEV RESP.ADV. : HARENDER PRASAD

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No.2294 of 2015
ORDER:
This Civil Revision Petition under Article 227 of the Constitution of
India by the petitioner/plaintiff is directed against the orders dated 20.01.2015
of the learned I Additional Chief Judge, City Civil Court, Secunderabad
passed in EASR.no.14412 of 2014 in EP.no.11 of 2014 in OS.no.26 of 1983
filed under Section 152 read with Section 151 of the Code of Civil Procedure,
1908.
2. I have heard the submissions of the learned counsel for the revision
petitioner/DHr and the learned counsel for the 3
rd
respondent. There is no
appearance for the other respondents.
3. The facts necessary to be stated as a prelude to this order, in brief, are
as follows:
The DHr brought the suit OS.no.26 of 1983 (Old OS.no.638 of 1980)
against the sole defendant (since died) for specific performance of an
agreement dated 05.08.1975 in respect of a property which is described in
the schedule annexed to the plaint. The sole defendant filed a written
statement resisting the suit. The said suit was decreed on 06.06.1988 after
full fledged trial. The sole defendant had preferred an appeal in
CCCA.no.128 of 1998 against the decree and judgment of the trial Court.
The said appeal, vide judgment dated 21.11.2002, was dismissed for default.
After the decree of the trial Court has attained finality, the DHr filed EP no. 11
of 2014. The JDrs.2 to 5, who are the legal representatives of the deceased
sole defendant, having entered appearance through their advocate had
remained ex parte. The Court of execution by order dated 13.10.2014
directed the DHr to file the draft sale deed and also deposit the required
amount for purchase of non judicial stamp papers for engrossing, execution
and registration of the sale deed in terms of the decree. On the same day, the
said JDrs 2 to 5 had filed EA.no.94 of 2014 requesting to set aside the ex
parte order and permit them to file a counter in the execution proceedings.
The said EA was allowed on 12.11.2014. A draft sale deed was filed by the
DHr in compliance of the orders dated 13.10.2014 of the Court below. The
Office of the Court raised an objection in respect of the total extent of property
which was not mentioned in the decree. Therefore, after noticing for the first
time the inadvertent error, the DHr was advised to take appropriate steps for
amendment of the plaint as well as the decree. Accordingly, the DHr had
filed the aforementioned EA seeking permission for amendment of the
schedule of the plaint and consequently the schedule of the decree as stated
in the affidavit and the petition. That application was not registered as the
Court of execution wanted to hear on the aspect of maintainability of the
petition for amendment, which was filed at the stage of execution. After
hearing the learned counsel for the DHr, the Court below had dismissed the
EASR by the orders impugned. Therefore, the DHr has filed this present
CRP.
4. The case of the DHr in support of the request for amendment, in brief, is
as follows:
In the plaint, the suit schedule property was described as under: ‘All
that premises bearing Municipal old no.8570-A New No.5-2-175/1, situate
at Rastrapati Road, consisting of celler ground floor and first floor
bounded on North by: Sri Satyanarayana Temple property; South by:
Rastrapati Road; East by: premises held by Andhra Bank; West by:
Premises held by Autofin Ltd.;’ After the decree was passed, in the decree
schedule, the property was described as mentioned in the schedule of the
plaint. In fact, during the pendency of the suit, the sole defendant having filed
a written statement had appeared as a witness in the suit. He had also
preferred a civil appeal before this Court against the decree and judgment of
the trial Court. On his death during the pendency of the first appeal, the
respondents 2 to 5 were brought on record, they being his legal
representatives. The said first appeal was dismissed by this Court on
21.11.2002. Subsequently, the EP was filed. In that execution petition,
directions to file the draft sale deed and deposit the necessary amount
towards non judicial stamp papers for engrossing, executing and registering
the sale deed were given. Thus, during the entire proceedings, there was
never any dispute as to the identity of the suit property. After filing of the draft
sale deed and on the objection taken by the office of the Court of execution,
the mistake which had inadvertently occurred has come to be noticed by the
plaintiff/DHr. During the drafting of the plaint by inadvertence, the total area
of the suit property and the municipal house numbers of the properties to the
East and West of the premises have not been mentioned in the schedule of
the plaint. The said error, which is an accidental error, if permitted to be
corrected no prejudice would be caused to the respondents. By not permitting
the amendment, the DHr cannot be deprived of the fruits of the decree
obtained in a very old suit, which has become final and binding. If the
amendment is not permitted the DHr would be put to serious and irreparable
loss. Hence, after deleting the aforementioned schedule in the plaint and the
decree, the following schedule is to be incorporated by way of amendment of
the schedules of the plaint and the decree: ‘All that premises bearing
Municipal Old No.8570-A, No.5-2-175/1, admeasuring 257.86 Sq.yards or
215.68 Sq.Mtrs or 2320.75 Sq.ffet, consisting of Cellar, Ground and First
floor situated at Rasthrapathi Road, Secunderabad, Telangana State
bounded by North: Sri Satyanarayana Temple property; Sout:
Rastrapathi Road; East: H.No.5-2-174/2/7; West: H.No.5-2-175/2.’
5. The learned counsel for the DHr while narrating the facts, the case
pleaded by the DHr in support of the request for amendment that is being
sought for and the sequence of events, which are already stated supra, had
further contended as follows: ‘The court of execution ought to have permitted
the amendment of the schedules of the plaint and the decree as the error had
occasioned purely on account of inadvertence and accident. The Court
below failed to appreciate the legal position in the decisions of the Supreme
Court in Babulal v. M/s.Hazari Lal Kishori Lal
[1]
; Niyamat Ali Molla v.
Sonargon Housing Coop Society Ltd.,
[2]
; Bela Devi v. Bon Behary
Roy
[3]
and had erroneously dismissed the application of the DHr filed for
amendment of the schedule. The Court below ought to have seen that it has
got ample power to not only rectify the mistakes that have crept into the
decree on account of the Court’s own accidental slip or omission but also to
rectify any mistake made by the partiesm for instance a mistake in the
description of properties in the deeds. The court below ought to have seen
that during the entire proceedings, the identity of the property was not
disputed, though the defendant/s had contested the suit on various other
grounds. In the execution proceedings, when the draft sale deed was
furnished, the office of the Court below had raised an objection in regard to
non mentioning of the total extent of the property in the decree schedule, and,
therefore, the necessity for seeking the amendment has arisen. The learned
Judge erred in observing that the DHr is introducing details of door numbers
of third party premiseses as boundaries of the suit schedule property on
Eastern and Western sides and also measurements of his choice in the
description of the suit schedule property. The court below ought to have seen
that by the proposed amendment, the material particulars in regard to the
description of the property are not being changed in any manner and that the
identity of the property remains the same despite allowing the amendment.
The court below ought to have seen that the total extent of the property, which
is now being sought to be included by way of amendment is already
mentioned in the suit agreement for sale, which is the basis for the suit. In the
boundaries mentioned in the original schedule, the names of the occupants
of the adjacent properties were mentioned, but, now, the house numbers of
the adjoining properties are being shown in the boundaries of the suit
schedule property by way of amendment; such, addition of the door numbers
of adjacent properties in the boundaries on the East and West would in no
manner modify the extent of the property. The Court below ought to have
seen that by way of the proposed amendment of the schedule, the DHr is not
trying to enlarge the extent of the suit schedule property. The court below
ought to have seen that it is having ample power and jurisdiction to grant the
relief.’
6. At the hearing, the learned counsel for the 3
rd
respondent would submit
that the order impugned admittedly was passed without notices to any of the
JDrs and without an opportunity to them to file counters and submit their
defence and that, therefore, the order is unsustainable. He would
alternatively submit that in case this Court comes to the conclusion that the
EASR is maintainable, a direction may be given to the trial Court to number
the same and dispose of the same afresh after giving an opportunity of
hearing to the respondents 2 to 5.
7. I have bestowed my attention to the facts and the submissions. As
already noted, the execution application, which is filed for amendment of the
schedule of the plaint as well as the decree as stated above, was not
registered and the Court below after hearing the learned counsel for the DHr
on the question of maintainability of the said petition had eventually passed
orders of dismissal, on merits. The said orders are impugned in this revision.
When the execution application was not registered and was heard on the
question of maintainability, the Court below ought to have considered that
limited question and ought to have either rejected the petition at the stage of
admission or ought to have directed the office to register the application. In
the later case, the Court is required to hear and dispose of the application of
the DHr on merits, after directing issuance of notices to the
JDrs/Respondents 2 to 5. However, even without giving notice to the JDrs,
the EA filed by the DHr was dismissed. Be that as it may. A perusal of the
original schedule mentioned in the plaint and the decree on one hand and
the schedule being sought to be introduced by way of proposed amendment
on the other, lays bare the changes that the DHr is intending to bring about in
the schedule by way of amendment. Therefore, there is no need to dilate on
the changes being sought to be introduced in the schedule of the decree.
8. Be that as it may, the learned counsel for the DHr placed reliance on
the decisions referred to supra and also on the following decisions, in support
of the submission that the application is maintainable.
1. Pratibha Singh v. Shanti Devi Prasad
[4]
2. Order dated 06.01.2014 of the Delhi High Court in CM(M).no.1299/2013
and CM.no.19310 of 2013 between Sh. Ashok Kumar Ahuja v. Sh.
Gulab Rai Khanchandani
3. Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah
[5]
I have gone through the decisions cited. In view of the precedential guidance,
the maintainability of the petition filed for amendment of the schedule of the
plaint as well as the decree is not in doubt. Therefore, the main question to
be considered by the Court below is as to whether in the facts and
circumstances of the case the amendment as sought for in respect of the
schedule of the plaint and the decree shall be permitted or not. In the well
considered view of this Court, while considering the said question the Court
below has to incidentally consider, apart from other contentions of the parties,
the question as to whether the amendment if permitted brings about any
drastic or major changes in the description and the identity of the property
involved in the lis. Therefore, the DHr has to in the first place, establish that
there will either be no material change, much less a major change, or a
change in the identity of the schedule of property despite allowing the
amendment of the schedule as prayed for. Now that this Court had held that
the application is maintainable, in the well considered view of this Court, the
CRP can be disposed of with appropriate directions.
9.. Having regard to the facts and the discussions supra, this Court is of the
considered view that the order impugned is liable to be set aside and that the
execution application (EASR) has to be remitted to the Court below for
disposal afresh, in strict accordance with the procedure established by law,
after directing notices to the respondents and giving them an opportunity to
file their counters, if any, and contest the matter. It is made clear that before
considering the merits of the said application, the Court below shall register
the EASR and give the plaintiff an opportunity to produce any acceptable and
relevant evidence, if necessary, by seeking appointment of an advocate
commissioner for identification of the property in question, to substantiate the
request for amendment of the schedule.
10. In the result, the Civil Revision Petition is allowed and the order
impugned is set aside and the EASR.no.14412 of 2014 in EP.no.11 of 2014
is remitted to the Court below for disposal afresh in strict accordance with the
procedure established by law as directed hereinabove. There shall be no
order as to costs.
Miscellaneous petitions pending, if any, in this CRP shall stand closed.
_____________________
M.SEETHARAMA MURTI, J
18
th April, 2016
Vjl
[1]
(1982) 1 SCC 525
[2]
(2007) 13 SCC 421
[3]
AIR 1952 Cal 86
[4]
(2003) 2 SCC 330
[5]
AIR 1974 AP 201

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