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Manilal Gadiya v. Mangilala Kesarinat Sewak And Others
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiff in O. S. No. 3782 of 1967 (the present revision petitioner) obtained a judgment against the defendants after the defendants were set ex parte. The record shows P.W. 1 was examined and Exhibits A-1 and A-2 were marked; the claim was proved and a preliminary decree was passed "with costs as prayed for in (a) and (b) of the plaint." The preliminary decree, as drafted by the court office, omitted to state the proportionate shares of the parties as required by Form No. 21 of the Civil Procedure Code (C.P.C).
To correct this omission, the petitioner filed I. A. No. 5736 of 1974 seeking a direction to the office to amend the preliminary decree dated 20-10-1970 in O. S. No. 3782 of 1967 so that it would conform to Form No. 21 of the C.P.C. The respondents opposed the application, arguing that the decree matched the prayer in the plaint and that the plaintiff was improperly attempting to fill a lacuna in the suit by this application; they submitted that the proper remedies were appeal or review.
The court below dismissed the amendment application, observing that although the plaint alleged the plaintiff was entitled to a half share and had contributed the entire principal amount, the plaint omitted a specific prayer for a declaration of that share; since the plaintiff did not seek to amend the prayer, the court held he had to be content with the decree as drafted. Aggrieved, the plaintiff—identified in the opinion as the petitioner in I. A. No. 5378 of 1974—preferred the present revision petition.
Legal Issues Presented
- Whether the preliminary decree in a suit for dissolution of partnership and account must, when supported by pleadings and evidence, be drafted to declare the proportionate shares of the parties in accordance with Order 20, Rule 15 C.P.C. and Form No. 21 (appendix D).
- Whether the trial court's jurisdiction under Sections 151 and 152 C.P.C. may be invoked to amend or rectify the decree as drafted (to declare shares), or whether the remedy lies exclusively by way of appeal or review, particularly in light of precedents cited by the respondents.
Arguments of the Parties
Petitioner's Arguments (as presented by Mr. Himmatmal Mardia)
- The plaint, written statement and affidavit for amendment demonstrate that the plaintiff and the second defendant had equal shares in the partnership; the plaint also sought dissolution, accounts and appointment of a commissioner for inventory and accounts.
- Because the defendant remained ex parte, judgment and decree were passed "as prayed for," but the decree as drafted should nevertheless declare the proportionate shares of the parties in accordance with Order 20, Rule 15 C.P.C. and Form No. 21 (appendix D).
- Rule 114 of the Civil Rules of Practice and Forms No. 38, 49 (relevant pleading and drafting forms) support the contention that the decree should declare shares and that the omission was a drafting error to be corrected.
Respondents' Arguments (as presented by Mr. Raja Masilamani)
- The court's jurisdiction under Sections 151 and 152 C.P.C. cannot be invoked to amend the decree; there was no clerical or other error justifying Section 152 relief.
- Where a statutory right or substantive omission is involved, the appropriate remedies are appeal or review rather than invocation of inherent powers under Section 151 C.P.C.
- The respondents relied on decisions (Abdul Razack Sahib v. Abdul Hamid Said; Bhikhi Lal v. Tribeni; Nagarathnamma v. Seetharamamma) for the proposition that amendment of a decree under Sections 151/152 is inappropriate where statutory rights or substantive matters were not properly considered by the trial court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Razack Sahib v. Abdul Hamid Said | Principle that where statutory rights have not been properly considered by the trial court, decree cannot be amended under Sections 151/152 C.P.C.; remedy lies by appeal or review. | The court reviewed this decision as relied upon by respondents but distinguished it: the present case involves the duty to draft a decree according to Order 20, Rule 15 and Form 21, and the omission was a drafting error rectifiable under Sections 151 and 152 C.P.C. No authority was cited to defeat that proposition. |
| Bhikhi Lal v. Tribeni | Same general principle cited by respondents—limits on invoking Sections 151/152 when substantive/statutory rights were not considered; remedy by appeal/review. | The court treated this decision as factually distinguishable for the reasons given above and held it did not bar correction of the decree in the present circumstances. |
| Nagarathnamma v. Seetharamamma | Same general principle cited by respondents—that amendment under Sections 151/152 is not appropriate where substantive/statutory considerations are at issue. | The court observed that this authority was not contrary to the court's view that the drafting omission here should be rectified; the court found the case distinguishable and did not accept it as a bar to correction under Sections 151 and 152. |
Court's Reasoning and Analysis
The court examined the plaint, the written statement and the affidavit filed in support of the decree amendment, and it considered the evidence (including the examination of P.W. 1 and the marked exhibits). From these materials the court concluded that it was clearly established on the pleadings and the evidence that the plaintiff and the second defendant had equal shares in the partnership.
The court relied on the text of Order 20, Rule 15 C.P.C., which authorizes a court, before passing a final decree in a suit for dissolution or partnership accounts, to pass a preliminary decree declaring the proportionate shares of the parties and directing accounts and other acts it thinks fit. The court also referred to Form No. 21 (appendix D) which, for the purpose of drafting decrees, requires declaration of the proportionate shares of the parties in the partnership. The court further noted Rule 114 of the Civil Rules of Practice and Forms No. 38 and No. 49 as guidance on pleadings and drafting in suits for dissolution and accounts.
Addressing the respondents' reliance on Sections 151 and 152 jurisprudence, the court analyzed the authorities cited and observed those decisions concerned cases where statutory rights were not properly considered and where invocation of Sections 151/152 had been held improper because the remedy lay by appeal or review. The court distinguished those precedents on the ground that the present case involved a failure by the trial court to draft the decree in conformity with a clear statutory and procedural requirement (Order 20, Rule 15 and Form 21). The court concluded that the omission in the decree was a mistake that the court could and should rectify under Sections 151 and 152 C.P.C., and that no contrary authority had been shown.
Because the trial court had failed to exercise the jurisdiction vested in it by law to draft the decree properly, the court allowed the revision petition and directed correction, while making no order as to costs.
Holding and Implications
Holding: The revision petition is allowed; the trial court's omission to declare the proportionate shares in the preliminary decree was a mistake and must be rectified. The opinion concludes with the succinct order: Revision allowed. There is no order as to costs.
Implications:
- The direct effect is that the lower court's dismissal of the petition to amend the preliminary decree is set aside and the decree must be amended so as to declare the parties' proportionate shares in accordance with Order 20, Rule 15 C.P.C. and Form No. 21 (appendix D), given that those shares are established by the pleadings and evidence.
- The court distinguished earlier authorities that limit the use of Sections 151 and 152 C.P.C. to correct decrees in certain circumstances; the court held that where the court failed to perform its duty to draft a decree as mandated by procedural provisions (Order 20, Rule 15 and Form 21), the omission can be rectified under Sections 151 and 152 C.P.C.
- No broader rule or new precedent beyond the facts and reasoning stated in the opinion is expressly declared; the decision's immediate consequence is corrective relief in the present case (and the court expressly stated that no authority was cited to contradict its view).
1. The plaintiff in O. S. No. 3782 of 1967 is the revision petitioner herein. He obtained a judgment against the defendants in the suit to the following effect:
"Defendants set ex parte. P.W. 1 examined. Exs. A-1 and A-2 marked, Claim proved. Preliminary decree is passed with costs as prayed for in (a) and (b) of the plaint."In the decree drafted for the preliminary decree, the Court below has not stated the shares of the respective parties as provided in Form No. 21 of the C.P.C. Hence, the petitioner herein filed I. A. No. 5736 of 1974 to direct the office to amend the preliminary decree dated 20-10-1970 in O. S. No. 3782 of 1967 to be in accordance with form No. 21 of C.P.C. The respondents herein opposed this amendment stating that the decree is in accordance with the prayer made in the plaint and the plaintiff is trying to fill up the lacuna in the suit in the guise of a prayer for amendment of the preliminary decree and that the office is correct in drafting the preliminary decree as per the judgment of the Court. The respondents further contended that if the petitioner herein is aggrieved by the drafting of the preliminary decree he can get it rectified either by way of filing an appeal or a review petition. The Court below dismissed the application observing that though the plaintiff has stated in the body of the plaint that he is entitled to a half share in the profit and that he has contributed the entire principal amount, yet he omitted to pray for a declaration respecting his share and that since the plaintiff is not willing to amend his prayer the plaintiff has to be content with the preliminary decree as it is.
2. Aggrieved by the order of the Court below the plaintiff who was the petitioner in I. A. No. 5378 of 1974 has preferred the above revision petition.
3. Mr. Himmatmal Mardia, learned counsel appearing for the petitioner brought to my notice Order 20, read the plaint, written statement and also the affidavit filed for the amendment of the decree. It is clear from the plaint that the parties viz., the plaintiff and the second defendant are having equal share in the business. The prayer in the plaint is for dissolution of partnership, taking of accounts and appointment of Commissioner for the inventory of the account books, articles pledged and other assets of the partnership firm. Learned counsel also stated that since the defendant remained ex parte a judgment and decree was passed as prayed for.
4. It is clear from Order 20, Rule 15 that
"where a suit is for the dissolution of a partnership, or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares o the parties fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit."
In Form No. 21 which is in appendix D for the purpose of drafting the decrees it is stated that the decree must declare the proportionate shares of the parties in the partnership. Mr. Himmatmal Mardia also pointed out Rule 114 of the Civil Rules of Practice and also Form No. 38 as to the drafting of the plaints in a suit for dissolution of partnership and accounts. He also read Form No. 49 to point out how the pleading should be in such a suit.
5. On the other hand, Mr. Raja Masilamani pointed out that the Court's jurisdiction cannot be invoked under Secs. 151 and 152 C.P.C. for the purpose of amending the decree. There is absolutely no error, clerical or otherwise to invoke the jurisdiction of the Court under Sec. 152. Further when the remedy is available for the petitioner to file either review petition or appeal, the Court's jurisdiction cannot be invoked under Sec. 151 C.P.C. For this proposition he cited the decisions in Abdul Razack Sahib v. Abdul Hamid Said, ; Bhikhi Lal v. Tribeni, and Nagarathnamma v. Seetharamamma . I have been taken through these decisions and also the pleadings in the present case including the evidence given by P.W. 1. There is absolutely no difficulty from the pleadings and the evidence given by P.W. 1 that the shares of the plaintiff and the second defendant are equal. It is also clear from the Civil Procedure Code and also from Form No. 21 of appendix D of the Code that the Court which drafts a decree must declare the shares also. It is not necessary to declare the shares in the judgment rendered by the Court. But when it is proved from the pleadings and also from the evidence that parties have equal shares the decree has to be drafted by declaring the shares of the parties also. This is a clear case where the Court has failed to draft the decree in accordance with Order 20, Rule 15 and Form 21 as stated above. The decisions cited by Mr. Raja Masilamani, learned counsel for the respondents dealt with cases wherein the statutory rights of the parties have not been properly considered by the Court. In such circumstances, it has been held that the decree cannot be amended under Sec. 151 and Sec. 152 C.P.C. but the remedy lies only by way of appeal and review petition. As far as the present case is concerned, it is the duty of the court to draft the decree in accordance with Order 20, Rule 15 C.P.C. and Form No. 21 The mistake committed by the Court has to be rectified only under Sections 151 and 152 C.P.C. No authority has been cited contra to this proposition stated by me.
6. Thus, it is clear that the trial Court has failed to exercise its jurisdiction vested in it by law. In these circumstances, the revision petition is allowed. There will be no order as to costs.
7. Revision allowed.
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