IN THE HIGH COURT OF JUDICATURE AT PATNA
MJC No.271 of 1997
1. Dinanath Prasad,
2. Shankar Prasad,
3. Nand Kishore Prasad,
4. Sheo Prasad Sah,
All sons of late Seth Sah,
5. Mostt. Seema Devi wife of late Lal Babu Sah,
6. Smt. Daya bati Devi daughter of late Seth Sah,
7. Mostt. Shampti Devi wife of late Jagarnath Prasad,
8. Ganga Prasad,
9. Jitu Kumar,
10. Raju Kumar,
11. Bijay Kumar,
All sons of late Jagarnath Prasad,
12. Bindi,
13. Sabita,
14. Gita,
All daughters of late Jagarnath Prasad,
All residents of village Sadiquepore, Patna City,
Police Station Alamganj, District Patna ..
... Petitioners
Versus
DR.HARISH CHANDRA PRASAD son of late Anganu
Sao, resident of village Sadiquepore, Patna City, Police
Station Alamganj, District Patna .. ..Opposite Party
For the Petitioners: Mr. Naresh Chandra Verma, Advocate
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12 03.12.2010 Heard learned counsel for the petitioners. In spite
of notice the opposite party has chosen not to appear.
This application under Section 151 of the Code of
Civil Procedure (hereinafter referred to as “the Code”) has
been filed on behalf of the petitioners, who are heirs of
Jagarnath Prasad and Seth Sao, the two respondents of First
Appeal No. 715 of 1968. That first appeal was preferred by
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one Harish Chandra Prasad, the original opposite party, who
is dead and has been substituted by his heirs and was
directed against the judgment and decree dated 10.09.1968
passed by 2nd Additional District Judge, Patna in Title Suit
No. 22/4 of 1963, whereby the learned trial court granted
probate of the will of Raghunandlan Khalifa dated
15.06.1938 in favour of the two plaintiffs, namely,
Jagarnath Prasad and Seth Sao, the predecessors-in-interest
of the petitioners.
The first appeal bearing F.A. No. 715 of 1968 was
dismissed with costs on 26th February, 1985. According to
the petitioners, the judgment and decree of this Court
affirming that of the trial court has attained finality and the
matter was not taken to the Supreme Court.
The prayer of the petitioners is to consider and
allow a prayer for amendment in the plaint as well as in the
decree of the trial court, which stands affirmed by this
Court, in the light of facts already stated in an application
under Order VI Rule 17 of the Code filed in F.A. No. 715 of
1968, which was considered on 20th of January, 1972 and
was ordered to be placed at the time of final hearing of the
appeal itself. Photo copies of the certified copies of the
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application for amendment of the plaint and of the order of
this Court dated 20th January, 1972 have been annexed as
Annexures 1 and 2 to this MJC application. The simple case
of the petitioners is that the will, which has been probated,
contains description of the properties and shows holding no.
79A, but due to clerical mistake in the plaint the holding
number was mentioned as 79 instead of 79A. The error has,
therefore, found place in the decree of the court below also.
The ordersheet of this case shows that on
27.04.2010 a submission was made that the original will is
lying in safe custody of this Court on account of being
summoned in F.A. No. 715/68. This Court directed the
Registrar General to search out the will for being placed
before this Court. The said will along with two other
documents kept in an envelope has been produced by the
Registry. On perusal of the will dated 15.06.1938, it is
found that the holding number of the property is mentioned
as 79A, as pleaded by the petitioners.
In spite of notice nobody has appeared on behalf
of the opposite party to oppose this application. Hence, in
view of the facts noticed above, we find that the alleged
error in the plaint, prima facie, appears to be a simple
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clerical mistake, which should ordinarily be permitted to be
removed and once such an amendment is permitted, the
decree of the court below containing holding number should
also be corrected accordingly.
The record of the first appeal discloses that the
original lower court records containing the plaint and
decree, etc. have already been sent down to the court below
through memo no. 1824 dated 11.07.1985. So far as the
judgment and decree of this Court are concerned, there is no
reference of he details of the property mentioned in the will
and hence, they do not require any correction in the records
of F.A. No. 715 of 1968. But since the judgment and decree
of the court below will be deemed to have been merged in
the judgment and decree of this Court, hence, in the interest
of justice, we remand the matter to the learned trial court to
take up the prayer made in this MJC application and pass
necessary orders for correction of the plaint and decree in
accordance with law on the basis of all the relevant
materials including the original will.
Let the original will along with the documents
kept in a separate envelope be sent down to the court below
by special messenger, for which the cost will be deposited
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by the petitioners within a week. The original documents
should be sent down in sealed cover.
This application is disposed of accordingly.
(Shiva Kirti Singh, J.)
(Dr. Ravi Ranjan, J.)
SC