Basanti Khilar Vs Nimain Mohanty

Petitioner, in this CMP, seeks to assail the order dated 12^th November, 2024 (Annexure-6) passed by the learned Civil Judge (Senior Division), Balasore in CMA No.352/60 of 2023-I (arising out of Civil Suit No.380 of 2013-I), rejecting an application filed by the Petitioner under Sections 151 and 152 of the Code of Civil Procedure (for short, ‘CPC’).

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It is submitted by the learned counsel for the Petitioner that Defendant No.14 is the Petitioner in this CMP. The suit was filed for partition. During pendency of the suit, an application under Order XXIII Rule 3 of the CPC was filed on 14^th May, 2013 by the co-sharers for disposal of the suit on compromise. Accordingly, an allotment-sheet was also prepared and filed along with the petition under Order XXIII Rule 3 of the CPC. But in the Column No.7 of the allotment

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sheet, Petitioner-Defendant No.14 has been inadvertently described as ‘Sabitri Khilar’ in place of ‘Basanti Khilar’.

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3.1. Learned counsel for the Petitioner submits that in all other places in the plaint and deposition etc., the Defendant No.14 has been correctly described as ‘Basanti Khilar’. On the basis of the allotment sheet filed along with the petition for compromise, the suit was decreed. When the Petitioner sought to mutate her share as per the compromise decree, it came to the knowledge of Petitioner-Defendant No.14. Hence, she filed an application under Section 152 of the CPC (CMA No. 352/60 of 2023-I) for correction of her name in the decree, as it was a typographical error by way of an accidental slip. Learned trial Court rejected the application vide order dated 12^th November, 2024 (Annexure-6) holding that the same is not a typographical error. It is further submitted that neither the Plaintiff nor rest of the Defendants had objected to the petition under Section 152 of the CPC filed by the present Petitioner. In spite of the same, it was rejected. Hence, this CMP has been filed.

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3.2. In support of her submission, learned counsel for the Petitioner relied upon the case of Dillip Chandra Singh Deo Vrs. Purnendu Chandra Singh Deo and Another (CMP No.129 of 2023 disposed of on 11^th April, 2023) and Meenakshi Parida Vrs. Sujit Kumar Sahu (W.P.(C) No.13833 of 2021 disposed of on 5^th September, 2022). In the case of Dillip Chandra Singh Deo ( Supra ), this Court has held that in order to ascertain as to whether the error complained of is an accidental slip or not, the Court has to scan the pleadings of the parties in its entirety. The pragmatic

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view taken by this Court was not considered by learned trial Court while rejecting the application under Sections 151 and 152, C.P.C. Hence, the learned counsel for the Petitioner prays for setting aside the impugned order and to remit the matter to the learned trial Court for fresh adjudication of CMA No.352/60 of 2023-I by providing opportunity of hearing to the parties concerned.

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Upon hearing learned counsel for the Petitioner and on perusal the record, this Court finds that learned trial Court has pointed out that in the address statement, the Defendant No.14 has been described as ‘Sabitri Khilar’. In the allotment-sheet (Column No.7), the Defendant No.14 has been similarly described. It is further observed by learned trial Court that Defendant No.14 has put her LTI in her pleading and in the compromise petition, whereas the present Petitioner has put her signature in her deposition (in CMA) and in the petition filed under Sections 151 and 152 of the CPC. It is also held that there is no sufficient material to show that ‘Basanti Khilar’ and ‘Sabitri Khilar’ is one and the same person. He, therefore, came to the conclusion that the error complained of is not an inadvertent typographical or clerical mistake.

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4.1. In the case of Dillip Chandra Singh Deo ( supra ), this Court relied upon the case of Niyamati Ali Molla Vrs. Sonargon Housing Co-Operative Society Limited and Others; 2007 AIR SCW 6632, wherein Hon’ble Supreme Court approving the ratio in the case of Bela Devi Vrs. Bon Behary Roy and Others; AIR 1952 Calcutta 86 held that “….. It is now well settled that the pleadings of the parties

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are to be read in their entirety . ….” The said principle should be kept in mind while considering an application under Section 152 of the CPC. Learned trial Court appears to have pointed out certain discrepancies, as aforesaid. It also prima facie appears that neither the Plaintiff nor the Defendant/Opposite Parties have objected to the petition filed under Sections 151 and 152 of the CPC. It further appears that the aforesaid principle, as discussed in Dillip Chandra Singh Deo ( Supra ), was not taken into consideration by learned trial Court. The discrepancies, as pointed out by learned trial Court, are not sufficient to reject the plea of the Petitioner, more particularly in view of the ratio in the case of Dillip Chandra Singh Deo ( supra ). Thus, this Court feels that the matter requires fresh consideration.

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Accordingly, the impugned order under Annexure-6 is set aside and the matter is remitted to learned Civil Judge (Senior Division), Balasore for fresh adjudication of the petition under Sections 151 and 152 of the CPC taking into consideration the ratio in case of Dillip Chandra Singh Deo (supra) as well as discussion made above providing opportunity of hearing to the parties concerned.

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(K.R. Mohapatra) Judge

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Signature Not Verified

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Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: AuthenticationHimansu Location: OHC Date: 23-Jun-2025 13:56:58

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Basanti Khilar v. Nimain Mohanty

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Basanti Khilar v. Nimain Mohanty

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