Manilal Gadiya vs Mangilal Kesarinath Sewak and Others

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.

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.

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.

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.

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 and Others Vs. A. Abdul Hamid Said and Others, ; Bhikhi Lal and

Others Vs. Tribeni and Others, and Paledugu Nagaratnamma Vs. Kogant Seetharamamma and Others, . 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 CPC 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.

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.

Revision allowed.