Bombay High Court

KHANDU TULSHIRAM CHORMALEversusCHETTINAD CEMENT CORPRATION LTD.

Disposal: Allowed

Holding

The Court held that the correction application under Order VI Rule 17 CPC is maintainable and the impugned review order is unsustainable, thereby allowing the writ petition.

Summary

The petitioners, plaintiffs in a 2015 suit, challenged a decree that partially granted them a share in land and directed that a sale deed dated 30‑01‑2012 in favour of the respondent would not bind them for one‑fifth share. The land was incorrectly described as Gat No.41/1A instead of the correct Gat No.45/1/B, prompting the petitioners to file an application under Order VI Rule 17 of the CPC for correction, which was allowed on 20‑12‑2023. The respondent obtained a review of that order (Exhibit‑42), which the petitioners contended was passed without hearing and suppressed the earlier rejection of a CMA filed under Section 152 CPC. The Court held that the correction application was maintainable, the rejection of the CMA did not bar it, and the impugned review order was illegal. Consequently, the writ petition was allowed, and all pending applications were disposed of.

Issues considered

Whether an application for correction of the description of the subject matter under Order VI Rule 17 CPC is maintainable despite the prior rejection of a CMA under Section 152 CPC.
Whether the review order (Exhibit‑42) allowing the correction was passed in violation of procedural fairness and thus illegal.
Whether the inadvertent mistake in land description can be corrected without prejudice to the parties.
Whether the rejection of CMA No.249 of 2023 bars the correction application on the ground of res judicata.

Legislation cited

Code of Civil Procedure, 1908 — s. 152, Order VI Rule 17

Subjects

subject matter correction
CPC Order VI Rule 17
Section 152 CPC
sale deed
land description error
writ petition
review order
res judicata

Judgment

                                                     904-WP-12212-2025 (C).doc




              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIRCUIT BENCH AT KOLHAPUR

                       CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO. 12212 OF 2025

Khandu Tulshiram Chormale & Anr.                             ...Petitioners
      Versus
Chettinad Cement Corpration Ltd. & Ors.                      ...Respondents

                                   …..
Adv. Hrishikesh S. Shinde, for Petitioner.
Adv. Prasad B. Kulkarni, for Respondent No.1.
                                   …..


                                     CORAM : SHAILESH P. BRAHME, J.

                                     DATE     : 28th AUGUST, 2026.

P.C. :

           Heard.

2.         The writ petition is directed against order dated 20.03.2025

passed below Exhibit 42, recalling the order passed on 20.12.2023

below Exhibit - 22 in Regular Civil Appeal (RCA) No. 22 of 2023.

3.         The petitioners are the plaintiff in RCS No. 435 of 2015 and the

respondents were defendants. The suit was decreed partly, granting

share to the plaintiff and directing that the sale deed dated 30.01.2012

executed by respondent Nos 2 to 4 in favour of the respondent No.1

would not be binding upon him to the extent of 1/5th share. Being

aggrieved by the decree, respondent No.1 has preferred RCA No. 22 of



     ZIP                                                              1 of 5
                                                      904-WP-12212-2025 (C).doc


2023, which is pending.

4.         It revealed to the petitioners that the subject matter is wrongly

described as land Gat No. 41/1A instead of Gat No.45/1/B. The Sale

Deed executed in favour of the respondent No.1 also refers to Gat

No.45/1/B. After the decree, CMA No. 249 of 2023 was filed under

section 152 of CPC. It was rejected on 26.10.2023. In RCA No. 22 of

2023, application Exhibit - 22 was filed under Order VI Rule 17 of CPC

seeking correction in the subject matter shown in the plaint. After

hearing parties, application was allowed by order dated 20.12.2023.

The order was sought to be reviewed by application Exhibit - 42 which

was allowed by the impugned order.

5.         The Learned counsel for the petitioners submits that the mistake

in the description of the subject matter is inadvertent and parties

understood that it was Gat No. 45/1/B. The sale deed also confirms the

said situation and no prejudice would be caused. It is further contended

that impugned order was passed without hearing the petitioners. It is

vehemently contended that the finding that CMA No. 249 of 2023 was

rejected and it was suppressed is ex-facie illegal.

6.         The submissions are repelled by learned counsel, Mr. Kulkarni on

the ground that order of rejection of CMA No. 249 of 2023 has not

been assailed and the application Exhibit - 22 was not maintainable as

the issue was finally decided. It is further contended that the petitioners




     ZIP                                                               2 of 5
                                                    904-WP-12212-2025 (C).doc


did not qualify the test of due diligence. It is submitted that petitioners

suppressed material facts and adopted a very casual approach. The

mistake on the part of the petitioners is stated to be deliberate.

7.         Undisputedly, Sale Deed dated 30.01.2012 bearing registration

No.456 refers to land Gat No.45/1/B, which was executed by the

respondent Nos.2 to 4 in favor of the respondent No.1. It was nobody’s

case that two or more suit lands were subject matter in the suit. The

solitary property was Gat No.45/1/B, which is castigated to be

alienated without consent of the petitioners being joint family property.

8.         The rejection of CMA No. 249 of 2023 by order dated 26.10.2023

was not on merit and would not cause any prejudice to substantive

rights of the parties. It was an application preferred under Section 152

of CPC. It was rejected as the respondent No.1 had preferred RCA No.

22 of 2023. Its rejection would not operate res judicata for taking out

any application seeking correction in the subject matter of the plaint.

9.         I find no merit in the submissions of learned counsel, Mr.

Kulkarni, that as the order passed in CMA No. 249 of 2023 was not

subjected to challenge, application Exhibit - 22 should not have been

entertained. As the order passed in CMA No. 249 of 2023 did not

tdecide substantive rights of the parties qua the subject matter, the

findings recorded in the impugned order are ex-facie illegal. It is

overlooked that said application was preferred under Section 152 of




     ZIP                                                             3 of 5
                                                        904-WP-12212-2025 (C).doc


CPC and the application Exhibit - 22 was under Order VI Rule 17 of

CPC. It was always open for the petitioners to seek remedy for the

correction of the subject matter. I find that impugned order is

unsustainable.

10.         It reveals from record that the mistake is obvious and due to

inadvertence on the part of the petitioners. No oblique motive can be

attributed to him. It is very surprising as to how the respondent No.1

could oppose the application Exhibit - 22 or could resort to review by

filing application Exhibit - 42. I find that this is a feeble attempt on the

part of the respondent No.1 to dodge the decree passed by the Trial

Court or its execution.

11.         The learned judge committed error in holding that application

Exhibit - 38 was preferred by the petitioners in paragraph No.3 of the

impugned order, which is inconsistent with the observations in

paragraph No.2.

12.         My attention was invited to the judgment of the Hon’ble Supreme

Court in the case of Himanshu Versus State of Rajasthan & Ors. The

facts are distinguishable. The suppression of facts recorded by

Honorable Apex Court is in context of those facts. No benefit of the

order can be given to the respondent.

13.         For the reasons stated above, Writ Petition is allowed in terms of

prayer clause ‘b’.




      ZIP                                                                4 of 5
                                                        904-WP-12212-2025 (C).doc


14.         In view of disposal of writ petition, pending applications, if any,

also stands disposed of.

                                                  [ SHAILESH P. BRAHME, J.]




      ZIP                                                                5 of 5

Continue reading with your account

Checking your session…