ORDER
1. This revision is directed against the order passed by the District Munsif, Krishnagiri in I.A.No.628 of 1994 in I.A.No.524 of 1992 in O.S.No.190 of 1981 on 10.11.1994. The respondents herein filed an application before the lower court praying for amendment of the plaint, final decree application and preliminary decree. The petitioners case is that there is some clerical error in the description of property. Therefore, it has to be suitably amended. This application was opposed by the petitioners herein and overruling the objections, the petition was ordered as prayed for.
2. The point for determination is: whether the order passed by the lower court is liable to be set aside?
3. Point; The suit was filed for petition in the year 1981. The preliminary decree was passed on 16.12.1985. An appeal was preferred against the said preliminary decree in A.S.No. 9 of 1988. The appellate court modified the decree of the trial court by its judgment dated 28.2.1990. An application was filed by the plaintiffs viz., the respondents herein, for passing of a final decree in I.A.No.524 of 1992. While the said application was pending, on 25.4.1994 the petitioners have come up with the present application. By this application they are seeking a prayer to amend the plaint filed in 1981, the decree passed on 28.2.1990 and the application filed in 1992 for passing of final decree.
4. The prayer in the application is curious. The prayer is for amendment of the plaint, the final decree application and the preliminary decree passed in this case. Thus three prayers have been asked for in a single application. This application is purported to have been filed under Order 6, Rule 17 and sections 151 and 152, CPC. Let us now see whether the prayer can be permitted at all, The District Munsif has not at all considered the application in a proper perspective. The order passed appears to be totally a perverse one. There is no explanation given at all in the affidavit for this enormous delay. It is not stated in the affidavit that a mistake was committed in setting out the survey number or boundaries and the mistake could be found out only subsequently. On the other hand, the only ground which is put forward is that there are clerical errors. How the clerical errors crept in is not sought to be explained. The plaintiffs have been granted 1/6th share in item-2, item-4, item-5, and item-6. Item-2 describes the property was comprised in survey No.496. According to the petitioner survey No.498 has to be substituted in the place of survey No.496. It is not stated in the affidavit that survey No.498 is the correct survey number and that it has been wrongly given as 496. It is simply stated in paragraph 4 that in the place of survey No.496, 498 has to be substituted. How and why is not explained in the affidavit. But the petitioners would conveniently hide under the clerk of clerical error. Then parties have gone for trial. Then the direction of the trial court was challenged in appeal. The matter has been pending in the court from the year 1981. The plaintiffs filed an application to pass final decree in the year 1992. All these years, they have kept quiet. The clerical error was not there and suddenly according to the plaintiffs it has come to light only in the year 1994. The affidavit itself is only in the year 1994. The affidavit itself is confusing. While in paragraph 4, it is stated that in respect of item-2 survey No.498 has to be substituted in the place of 496, it is also stated that 498 has to be substituted in the place of 495 mentioned in the preliminary decree. Not only that, in paragraph 5 it is alleged that the correct extent of item-2 is 4 acres and 30 cents. But it has been given wrongly as 4 acres 62 cents. In paragraph 5, it is also stated that as per certain documents viz., Ex.B-2 and 3, they are entitled to a partition of an extent of 3
acres. If the allegations in partition of an extent of 3 acres. If the allegations in paragraph 5, are to be accepted, then it cannot amount to a clerical error. Then the question would arise as to what exactly is the extent they are entitled to in item-2 and what is the extent available in item-2. In paragraph 5, it is also stated that item-2 has to be amended suitably giving boundary description correctly. Therefore according to the plaintiffs, the survey number its given wrongly. The extent is given wrongly. The correct boundary description is not given, the plaintiffs are entitled to certain share by virtue of recitals in certain documents. If it is so, how this matter can be decided under section 151 or 152, CPC. How at this stage after the passing of the preliminary decree, the plaintiffs can be permitted to change the very suit property? How they can be permitted to base their claim to certain extent on the basis of certain documents when already the matter has been adjudicated upon and the preliminary decree has been adjudicated upon and the preliminary has been passed? It cannot be termed as a clerical error. On the other hand, under the guise of clerical error, it is clear that the plaintiffs are trying to bring in to the suit a property which was not at all the subject matter of the suit. Without considering these aspects in a mechanical fashion and without assigning any acceptable reason the District Munsif has chosen to order this petition. Likewise, it is stated that in item-5 the survey number has been given wrongly as 438 in the final decree application whereas it should be 430. In the petition under particulars of amendment, the petitioners have set out the boundaries of the proposed item-2. Here, curiously enough a particular description and specific and boundaries are given for 1.25 acres in item-2, it is forwarded by another specific boundaries given for an extent of 1.38 acres in the very item-2. Thus for the property comprised in item-2, two different descriptions are given. Yet, curiously, enough, it is stated as clerical error. It is not stated as to why such a description could not be given at the first instance when the plaint was filed or at any rate prior to passing of the preliminary decree. A clever attempt is now made by the plaintiffs to bring in to the suit, properties which were not at all the subject matter of suit earlier, under the guise of clerical error. An application for amendment is not a continuous to the suit or proceedings in which it is made. There is the question of limitation. The proposed amendment cannot be termed as mis-description. It cannot be termed as a clerical mistake or an accidental slip. A clever attempt is made by the plaintiffs to bring in new items of property in to the suit. It can be never stated that there has been any inadvertence on the part of the plaintiffs. The correction of the preliminary decree may amount to correction of a judgment on merit. An error in the sence of a mistake of identify of a property and not mere a description is not an accidental slip and it cannot be corrected either under section 153 or under Order 6, Rule 17, CPC. The suit has been pending in the trial court for more than 6 years and it is only in 1985, a preliminary decree was passed. An appeal against the same to the Sub Court was disposed of in the year 1990. To say that these mistakes came to light only after the filing of the final decree application is a mammoth lie. If the mistake pertains only to survey number, perhaps there may be something to urge. But the
extent is also said to be not correctly given. The boundaries are also sought to be given a new. The plaintiffs are claimed to be entitled to this on the basis of certain documents. Now then how it is possible for one to say that it is a clerical mistake is beyond one’s comprehension. It is a question of amendment under Order 6, Rule 17, then, necessarily the otherside has to be given an opportunity to file written statement and it would lead to a trial of the case. Can it be now permitted with a view to subvert this, a clever application is filed in the fashion of a rolled up plea by asking for the amendment of the plaint, preliminary decree and the final decree application. Therefore, I am of the view that the order passed by the lower court is wholly without jurisdiction. It is a perverse order and a non-speaking order, at that. It is surprising that the lower court should observe such amendment will not cause any prejudice to the otherside. When a new property is sought to be brought into the ambit of the decree under me guise of amendment, to say that it will not cause prejudice to the otherside is a gross mis-statement. No other valid reason is given. It is a superficial approach tainted with perversity. The order passed by the lower court is thoroughly erroneous and beyond jurisdiction of the lower court. Hence, it is liable to be set aside.
5. In the result, this revision is allowed. The order passed by the District Munsif, Krishnagiri on 10.11.1994 in I.A.No.628 of 1994 is hereby set aside. There is no order as to costs.