ORDER
A.H. Saikia, J.
1. Heard Mr. D. R. Chowdhury, learned Counsel for the petitioner. Also heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. H. Sarkar and Mr. G. Debbarma, learned Counsel for the respondents.
2. This is an application under Section 152 of the Code of Civil Procedure (for short’CPC) for amendment of the judgment and decree dated 19-1-1994 and 25-1-1994 respectively passed by the learned Assistant District Judge, Court No. 1, West Tripura, Agartala, presently designated as Civil Judge (Senior Division) Court No. 1, West Tripura, Agartala in Title Suit No. 154 of 1986, which were confirmed on appeal by the First Appellate Court in T.A. Nos. 37 of 1994 and T.A. 38 of 1994 vide common judgment dated 8-2-1995 and by this Court in Second Appeal in S.A. Nos. 10 of 1995 and S.A. 11 of 1995 by a common judgment passed on 20-3-2001.
3. In order to consider the prayer as mentioned above, it would be relevant and necessary to outline a sketch of factual background relating to this case.
4. This case portrays a chequered history.
5. The dispute is between the landlord and the tenants and they have been fighting this legal battle for the rented premises in dispute since the year 1977.
6. The instant suit initially being Title Suit No. 12 of 1977 was instituted by the petitioner Shri Dipak Saha, being the landlord, as plaintiff against the predecessors-in-interest of the respondents, herein, arraying them as party defendant Nos. 1 and 2, namely Mahendra Chandra Saha (since deceased) and Sachindra Chandra Saha (since deceased) respectively who were monthly tenants in the suit premises owned by the petitioner for their eviction from the suit premises on the ground of defaulter and also for realization of arrears of rent, damages and compensation. The suit was originally decreed by the learned Munsiff, Sonamura in favour of the plaintiff. However, on appeal, the learned District Judge dismissed the appeal upholding the judgment and decree passed by the learned MunsiFf, Sonamura. Against such dismissal, the defendant Nos. 1 and 2, mentioned above, preferred a Second Appeal before the Hon’ble High Court, Agartala Bench, Agartala which, in turn, remanded the entire matter for re-trial. On remand, the Title Suit No. 12 of 1977 was renumbered as Title Suit No. 154 of 1986 and the learned Assistant District Judge, No. 1, West Tripura proceeded for adjudication of the Us afresh to arrive at the findings aforenoted, amendment in which has now been sought for.
7. Be it also mentioned that both the above mentioned defendants, predecessors of the present respondents, filed a counter case being Title Suit No. 54 of 1978 in the trial Court for a declaration of specific performance of contract/execution or registration of the sale deed executed by the petitioner, herein, in terms of the contract agreed upon by and between them and the said suit was dismissed.
8. During the pendency of the aforesaid Title Suit i.e. T.S. 154 of 1986, both the defendants died and they were substituted by their respective legal representatives.
9. The present suit i.e. Title Suit No. 154 of 1986 was decreed by the learned trial Court as mentioned above.
10. Being aggrieved by the judgment and decree dated 19-1-1994 and 25-1-1994 respectively, the legal representatives i.e. present respondents, of the defendants preferred two separate appeals being Title Appeal No. 37 of 1994 and Title Appeal No. 38 of 1994 as mentioned above and similarly against the dismissal of both the appeals by the appellate Court, they filed two separate second appeals before the Hon’ble High Court as already recorded here-in-above and eventually both the Second Appeals were also dismissed. Decree for eviction and for realization of arrear of rents etc. stood upheld.
11. Insofar as the substitution of legal heirs of the defendant No. 2 Sachindra Ch. Saha is concerned, the petitioner on 30-1-1991 preferred an application under Order 22 Rule 3 read with Section 151 of CPC before the then learned Subordinate Judge, West Tripura, Agartala seeking to get the legal representatives of the deceased defendant No. 2 i.e. Sachindra Chandra Saha who died on 4-11-1990, substituted by making them party defendants in the instant Title suit. It was categorically stated therein that the wife of the deceased Smt. Anjali Saha shall represent their two minor sons and one daughter. In para 2 of the application, the petitioner stated as under:
That on 24-1 -1991, the plaintiff came to learn from Sri Man Mohan Saha of Sonamura about the death of the defendant No. 2, Sachindra Chandra Saha, died on 4-11-1990 at Sonamura Hospital leaving 4 (four) legal heirs i.e. namely:
(2) (a) Smt. Anjali Saha-wife of Sachindra Saha
(2) (b) Smt. Rakhi Saha (Minor)-daugh-ter, aged 8 years.
(2) (c) Minor-Sri Sanjoy Saha, son-aged 3 years
(2) (b) Minor-Sri Bijoy Saha, son-aged 11 months.
There is no other heirs of late Sachindra Saha (Defendant No. 2), all the minors from 2(b) to 2(d) are represented by their mother-guardian. 2(a) Smt. Anjali Saha are to be made parties in this suit in place of the defendant No. 2.
12. On the basis of such prayer, the trial Court i.e. the then learned Subordinate Judge, West Tripura, Agartala by his order dated 14-2-1991 passed the following order:
14-2-1991 Ld. lawyers of both sides are present.
The petition dated 31-1-1991 filed by the plaintiff side praying for impleading the names of the legal heirs of defdt. No. 2 late Sachindra Saha is put up.
Heard, prayer is allowed.
The names of the legal heirs of deceased defendant No. 2 be inserted in the proper place of the plaint.
Pltff. side is now to file requisites for issuing summons upon the defdts. within 7 days.
Issue process if filed properly.
To 4-4-1991 for SR./WO if any.
13. However, despite such order, the cause title of the plaint remained uncorrected and resultantly the judgment and decree were also passed without recording the factum of representation of the minors by their mother, being the natural guardian.
14. When the matter was carried to First Appellate Court by the defendants/respondents, such fact of correction of the cause title was not brought to the notice of the Court though in the memorandum of appeal, it was clearly indicated that the minors, namely, Smt. Rakhi Saha, Shri. Sanjoy Saha and Bijay Saha were being represented by their mother/guardian, Smt. Anjali Saha arraying them as appellants Nos. 2, 3, 4 and 5 respectively. It was recorded therein that minor appellants Nos. 3, 4 and 5 were represented by their next friend, natural guardian, mother, the appellant No. 2, Smt. Anjali Saha.
15. After dismissal of the two second appeals, as mentioned above, by this Court on 20-3-2001 confirming the judgment and decree of the learned trial Court for eviction of the respondents from the suit land and realization of arrears of rent, when the decree holder/petitioner put the decree for execution in Case No. Exe 3(T) /2002, the respondent No. 2(a) herein Smt. Anjali Saha, the wife of the deceased-defendant No. 2 raised an objection by filing an application under Section 47 of CPC pleading that the execution case could not be proceeded with as the decree was not executable for the same reason that one minor daughter and two minor sons of the original deceased defendant No. 2, were not represented in the original Title Suit and subsequent decree. It was also contended therein that nowhere in the original decree of the trial Court as well as in the judgment and decree rendered by the First Appellate Court and High Court in Second Appeal, it was ever recorded that those minor defendants/Judgment Debtors 2(b) and 2(d) were being represented by their mother, defendant No. 2(a) and accordingly conceding to such objection, the execution proceeding was dismissed by the executing Court on 16-6-2003 on condition that the plaintiff/decree-holder/petitioner would be allowed to execute the decree if amendment of decree was allowed for such purpose.
16. As a result, the plaintiff petitioner filed an application under Section 152 of CPC for amendment of the judgment and decree dated 19-1-1994 and 25-1-1994 respectively, as already mentioned, before the Civil Judge (Senior Division), Court No. 1, West Tripura, Agartala stating that due to bona fide omission/clerical mistake necessary correction as regards substitution of the legal heirs wherein minors were represented by their mother was not entered into in the judgment and decree mentioned above.
17. The respondents contested the application for amendment by filing written objection.
18. The learned Civil Judge (Senior Division), No. 1, West Tripura, Agartala after hearing the learned Counsel for the parties and having perused the application, by order dated 7-9-2002 rejected the petition holding that since the original judgment and decree was merged with the appellate decree on being confirmed by the Hon’ble High Court in those above referred Second Appeals, the trial Court was left with no jurisdiction to amend the decree and also that no notices were served upon the defendants 2(b) to 2(d) indicating that they should be represented by the defendant 2(a), the mother.
19. Being dissatisfied with the such rejection, the petitioner moved a revision petition before the High Court being No. C. R. P. 76 of 2002. However, this revision petition was withdrawn on 5-5-2004 with a liberty to make appropriate application in accordance with law in the appropriate Court and the order dated 5-5-2004 may be extracted as under:
Heard Mr. D. R. Choudhury, learned Counsel for the petitioner, who seeks to withdraw this revision with liberty to make appropriate application in accordance with law in the appropriate Court.
Also heard Mr. A. K. Bhowmik, learned senior counsel, appearing on behalf of the opposite parties, assisted by Mr. H. Sarkar.
In view of the above, this revision is disposed of on being withdrawn by the petitioner with liberty granted to him to approach the appropriate Court, in future, with such application as may be permissible under the law.
20. Situated thus, the petitioner preferred this application under Section 152 of CPC for amendment of the aforesaid judgment and decree passed by the trial Court so as to enable him, the decree-holder, to execute the decree against the defendants-respondents, precisely defendant No. 2(a) representing the minors 2(b) to 2(d). This application has also been contested by the respondents by filing their written objection.
21. Seeking the amendment aforesaid, Mr. Chowdhury, learned Counsel for the petitioner has forcefully contended that though the substitution of defendant No. 2 by his legal representatives i.e. his wife, minor sons and daughters who are to be represented by their mother, was principally allowed by the trial Court at its initial stage, as noticed above, the cause title of the plaint was not corrected incorporating the names of the legal representatives and also showing that the minors so mentioned above were represented by their mother, the wife of defendant No. 2, which was being purely the duty of the office. Since the decree of the trial Court has been merged with the decree of the final appellate Court i.e. in the Second Appeals before this Court, the judgment and decree need to be corrected by the Hon’ble High Court for which this application has been made to cause the appropriate correction. It is also contended that initially the application for amendment of such nature was filed before the trial Court i.e. Civil Judge, Senior Division inadvertently and by committing a bona fide mistake inasmuch as since the judgment and decree have already been merged with the appellate Court’s judgment and decree passed by this Court in Second Appeals, the amendment petition ought to have been filed before this High Court. Nevertheless, looking into such defect, being apparent on the face of the record, the trial Court ought not to have entertained the application for amendment so preferred by the petitioner as the trial Court has no jurisdiction to hear and decide such type of petition for correction of judgment which was already merged with the appellate Court’s judgment. Such fact situation was clear from his order dated 7-9-2002 itself where the Court citing the authorities of the Apex Court as well as Punjab & Haryana High Court reported in AIR 2001 SC 2316 K. Raja Mouli v. A.V.K.N. Swami and in AIR 1986 Punjab & Haryana 402 Nishabar Singh v. Local Gurdwara Committee, Manjisahib, Karnel and Anr., held that since the decree of the trial Court was merged with the appellate decree, the trial Court was left without any jurisdiction to amend the decree.
22. That apart, the learned Counsel has also contended that there is no bar as such for preferring a second application praying for amendment of the judgment and decree of any Court before the High Court after rejection of the amendment petition preferred before the trial Court and the instant application is, therefore, not hit by the principle of res judicata.
23. In support of his submission that this case is not barred by res judicata, Mr. Chowdhury has relied on a decision of the Apex Court reported in (1998) 2 SCC 642 : AIR 1998 SC 972 Sayyed Ali and Ors. v. A.P. Wakf Board, Hyderabad and Ors. where in para 7, it was held as under (at p. 976, para 8 of AIR):
… It is well settled that if a decision of a Court or a tribunal is without jurisdiction, such a decision or finding cannot operate as res judicata in any subsequent proceedings. The plea of res judicata presupposes that there is in existence a decree or judgment which is legal but when the judgment is non est in law, no plea of res judicata can be founded on such ajudg-ment. It would be appropriate here to quote the following passage from Res judicata-Spencer, Bower and Turner, 2nd Edn., p. 92-
Competent jurisdiction is an essential condition of every valid res judicata, which means that, in order that a judicial decision relied upon, whether as bar, or as the foundation of an action, may conclusively bind the parties, or (in the case of in rem decisions) the world, it may appear that the judicial tribunal pronouncing the decision had jurisdiction over the cause of matter, and over the parties, sufficient to warrant it in so doing.
24. Objecting to the prayer of amendment, Mr. Bhowmik, learned senior counsel appearing on behalf of the respondents, has strenuously urged that this application, being a second in nature having been filed earlier an exactly similar application before the trial Court and having got the same dismissed vide order dated 7-9-2002 therein, is not at all maintainable in the present form. The petitioner is estopped from seeking his remedy once the same was sought before the trial Court and got refused. According to him, it is a clear case of res judicata as the issue regarding amendment of the judgment in order to cause correction to the effect that minors were represented by their mother i.e. defendant/respondent 2(a), raised herein, was finally heard and decided by the trial Court. It is further submitted by the learned senior counsel that being aware of the position that the minors are required to be represented by their mother as natural guardian, no steps whatsoever have been taken by the petitioner all the way from the lower Court at the trial stage to the High Court at the appellate level. Emphasis has been put by the Mr. Bhowmik to the effect that even no notices were sent to the minors i.e. defendants/respondents 2(b) to 2(d) showing that they were represented by their mother and in view of the same, at this belated stage when the decree was put to execution, the petitioner cannot be permitted to correct such defect to which the petitioner has already the knowledge and information.
25. I have thoroughly considered the extensive arguments so canvassed by the learned Counsel representing the contesting parties. I have also carefully scrutinized all the materials available on records including the pleadings exchanged by and between the parties in this regard relating to the issue involved along with the order dated 7-9-2002 passed by the trial Court and the order dated 5-5-2004 passed by this Court allowing to withdraw the Revision Petition No. 76 of 2002 with a liberty to make appropriate application in the appropriate Court.
26. Admittedly the judgment and decree of the trial Court for eviction of the defendants and also for realization of the arrears of rent have been merged with the appellate judgment of this High Court which upheld the concurrent findings of both the Courts below holding that defendants are liable to be evicted as the predecessors-in-interests of the present respondents were found to be defaulters as regards rented suit premises. Due to such merger of the decree of the trial Court with the appellate Court’s judgment and decree, it is settled that the trial Court has no jurisdiction to entertain any petition under Section 152 of CPC for amendment of any original judgment and decree of its own Court. The order dated 7-9-2002 passed by the learned Civil Judge, Senior Division is, therefore, non est in law. Applying the ratio of Sayyed Ali’s case (supra) it can be unhesitatingly held that this application under Section 152 of CPC seeking amendment is not barred by the principle of res judicata and accordingly the same is, in the opinion of this Court, maintainable.
27. It emerges from the records that when an application for substitution of the legal heirs of defendant No. 2 Sachandra Chand Saha was filed before the trial Court, it was categorically mentioned that the defendant No. 2(a), the mother, Smt. Anjali Saha, represented the minor daughter and two minor sons i.e. 2(b) to 2(d) respectively and this application was allowed by the trial Court permitting for such substitution. After such order of the Court, as it is established, it is the duty of the office to correct the cause title of T.S. 154 of 1986 by incorporating the names of the legal heirs exactly in the tune mentioned in the substitution petition. That was abundantly not done here. The correction of cause title after such order of permitting substitution is a ministerial function. Office has to make all such necessary correction. Therefore, for the fault of the office, the petitioner should not suffer.
28. It also appears from the records that when the defendants preferred appeals before the First Appellate Court as well as the High Court in Second Appeals, in their memo of appeals the appellants, the present respondents, accepting and admitting such representation of the minors by their mother, have clearly reflected that the mother Smt. Anjali Saha is representing the three minors i.e. one minor daughter and two minor sons.
29. On the other hand it also transpires from the perusal of the application filed under Section 5 of the Limitation Act filed by the respondents praying for condonation of delay in filing the petition for re-admission of the Second Appeals which were dismissed for default that in the said application also the appellants /respondents, herein clearly stated that minors/petitioner Nos. 3 to 5 are represented by their mother, Smt. Anjali Saha, petitioner No. 2 therein.
30. Given attending facts and circumstances of the case in its entirety and also after hearing the learned Counsel for the parties, this Court is of the considered view that the dismissal of an application for amendment of a judgment and decree does not constitute res judicata and the same cannot be allowed to stand as a hindrance for filing a fresh application for amendment before any competent Court. The Court has the power under Section 152 of CPC to amend not only any clerical or arithmetical mistake that has occurred in the judgment or decree but can also correct any such error that crept in plaint, decree, succession certificate etc. The purpose and intent of Section 151 vesting power of amendment upon the Court is to check the multiplicity of the proceedings and to minimize the litigation. A duty is also cast upon the Court to see that the technicality in any form cannot be permitted to prevail on the way of dispensing substantial justice.
31. For the foregoing reasons, observations and discussions, this Court has no hesitation to allow this petition and consequently the prayer for amendment as sought stands allowed. The learned Civil Judge (Senior Division), No. 1, West Tripura, Agartala is directed to instruct his office to correct the cause title of the judgment and decree dated 19-1-1994 and 25-1-1994 respectively passed in Title Suit No. 154 of 1986 substituting the legal heirs of deceased defendant No. 2, Sachindra Chandra Saha by incorporating the names of all the four legal heirs where minors are to be shown to be represented by their mother, Smt. Anjali Saha which is already on record in terms of the order dated 14-2-1991, as mentioned here-inabove, passed on the basis of the application for substitution presented by the petitioner on 31-1-1991.
32. In the result, the application succeeds and stands allowed. Considering the facts and circumstances of the case, there shall be no order as to costs.
33. Send down the Lower Courts records, if any, forthwith.