Ashis Kumar Chakraborty, J. - (1.) This revisional application is directed against the orders dated August 08, 2016 and September 16, 2016 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in Title Suit No. 1878 of 2016. By the first impugned order, the learned Court below rejected the application filed by the revisional petitioner under Section 152 of the Code of Civil Procedure (in short "the Code") for amendment/correction of the preliminary decree passed in the partition suit. By the second impugned order, the learned Court below rejected the petitioner's application under Section 151 of the Code for amendment of the preliminary decree passed in the suit.
(2.) The facts may be briefly stated. The petitioner filed the above suit against the opposite party no. 1 and Sri Srish Narayan Bhattacharya , since deceased claiming partition of the dwelling house at Premises No. 11/B, Radhamadhab Goswamy Lane, P.S. Shyampukur, Kolkata- 700073 (hereinafter referred to "the suit property"). In the plaint the petitioner stated that he himself owns 8/15th share of the suit property and the opposite party no. 1 and the original defendant no. 2, since deceased each owns 2/15th share in the suit property. During the pendency of the suit, the original defendant no. 2, Srish Narayan Bhattacharya, died intestate leaving behind the opposite nos. (2a), (2b) and (2c) as his heirs and legal representatives. Therefore, the opposite party nos. (2a) to (2c) were brought on record of the partition suit, in place and stead of the deceased defendant no. 2. Initially the opposite parties appeared in the suit but subsequently, they remained absent and did not contest the suit. On July 8, 2011 the learned Court below passed a preliminary decree declaring the petitioner's 8/15th share in the suit property. The learned Court below directed the parties to the suit to make amicable partition of the suit property within 90 days from the date of the decree, in default at the instance of either of the parties a partition commissioner shall be appointed to give effect to the preliminary decree into finality. The said preliminary decree was not challenged by any of the parties to the suit, but at the same time there was no amicable partition of the suit property. Accordingly, by order dated September 4, 2012 the learned Court below appointed the partition commissioner in suit. The partition commissioner, however, in his report filed before the learned Court below found that the petitioner has 11/15th share in the suit property. Thereafter, the petitioner filed an application under Order 6, Rule 17 , read Sections 151 and 152 of the Code praying for amendment of the plaint filed in the suit, as well as the preliminary decree dated July 8, 2011. The petitioner prayed for amendment of the averments, as well as the prayer portion of the plaint stating that he has 11/15th share in the suit property. He also prayed for correction/amendment of the preliminary decree dated July 08, 2011 to the effect that he is the owner of 11/15th share of the suit property. By order dated September 15, 2015 the learned Court below held that due to a typographical mistake it was mentioned in the plaint that the petitioner is the owner of 8/15th share, in place of 11/15th share, in the suit property and allowed the prayer for amendment of the plaint. By the said order the learned Court below, however, did not allow the prayer for amendment of the preliminary decree on the ground that in a single petition two prayers cannot allowed and that the decree cannot be amended without the amendment of plaint. After the amendment of the plaint the petitioner filed an application under Section 152 of the Code praying for, amendment/correction of the said preliminary decree dated July 08, 2011. By order dated August 08, 2016 the learned Court below rejected the said application of the petitioner. Thereafter, the petitioner filed an application under Section 151 of the Code before the learned Court below praying for amendment of the preliminary decree to correct the arithmetical mistake in declaring his share in the suit property. By order dated September 16, 2016 the learned Court below rejected the said application on the ground that by the earlier order dated August 8, 2016, the petitioner's applications under Section 152 of the Code was rejected with elaborate discussion. As mentioned earlier, both the said orders dated August 08, 2016 and September 16, 2016 have been assailed by the petitioner in this revisional application.
(3.) Assailing the first impugned order dated August 08, 2016, Mr. Sabhyasachi Bhattacharya, learned advocate appearing for the petitioner submitted that the opposite parties did not contest the partition suit, nor did they assail the preliminary decree dated July 8, 2011 passed by the learned Court below. He urged that the opposite parties did not contest even the application filed by the petitioner under Order 6, Rule 17 , read with Sections 151 and 152 of the Code, nor did they challenge the order dated September 15, 2015 passed by the learned Court below allowing the petitioner to amend his plaint in the partition suit. Therefore, according to Mr. Bhattacharya, when the learned Court below by the order dated September 15, 2015 held that the mistake in the original plaint that the petitioner is the owner of 8/15th share in the suit property, in place of 11/15th share, is a mere typographical mistake the prayer of the petitioner for amendment/correction of the preliminary decree ought not to have been rejected. He also urged that the opposite parties have not filed any objection disputing the correctness of the report filed by the partition commissioner before the learned Court below that the petitioner has 11/15th share of the suit property. On these grounds, it was strenuously urged that the learned Court below fell into an error of law in passing the first impugned order dated August 08, 2016 rejecting the application of the petitioner under Section 152 of the Code. In support of the contention advanced in this revisional application, reliance was placed on behalf of the petitioner on the decision of the Supreme Court in the case of Ram Kumar and Ors. v. Union of India and Ors. reported in (1991) 2 SCC 247 and the decision of a learned Single Judge Bench of this court in the case of Ashok Vijaya v. Jasbir S. Sabarwal reported in (2011) 4 CHN 308 .;