Shri Jai Singh vs Sardar Singh And Others on 21 January, 2009

[Cites 15, Cited by 1]

Punjab-Haryana High Court

Shri Jai Singh vs Sardar Singh And Others on 21 January, 2009

Prayer in the present petition is for setting aside the order dated 16.9.2003, passed by Additional District Judge, Rohtak, whereby the application filed by the petitioner for correction of decree sheet dated 26.10.1995 in Civil Appeal No. 25 of 1995, was dismissed.

Briefly, the facts are that one Shri Pandit Ram Singh took loan from the office of Deputy Commissioner, Rohtak in 1954. As he failed to repay the same, recovery proceedings were initiated and the property owned by him was put to public auction. The petitioner, being highest bidder, was successful in the auction proceedings. The entire amount of auction money of Rs. 8,000/- was deposited by the petitioner with the authorities way back in the 1973, when the auction took place. The possession of the property was delivered to the petitioner and he is in actual physical possession thereof since 27.7.1973. As the letter of ownership was not issued in favour of the petitioner and the entries in the revenue records were not changed, the suit was filed, which was dismissed by the trial court. However, the learned lower appellate court decreed the same on 26.10.1995. The application came to be filed for correction of the description of the property, as was mentioned in the plaint, which was ultimately incorporated in the judgment and decree. It is the order passed in the aforesaid application which is impugned before this Court.

Learned counsel for the petitioner submitted that the mistake committed by the petitioner at the time of filing the pleadings before the courts C.R. No. 1289 of 2004 [2] below was totally inadvertent. It is merely the numbers which have been wrongly typed in the plaint, otherwise there is no dispute about the identity of the property. The petitioner is in possession of the property ever since he purchased the same in the open auction from the authorities for recovery of loan from Shri Pandit Ram Singh. On account of the fact that by mistake, the description of the property was wrongly mentioned in the plaint and consequently in the decree, the petitioner should not be deprived of the fruits of the judgment and decree passed in his favour by the learned Additional District judge, Rohtak way back on 26.10.1995. She further submitted that the respondents, being not aggrieved against the aforesaid judgment and decree, did not file any further appeal. As far as application of the provisions of Section 152 of the Code of Civil Procedure (for short, `the CPC') for carrying out correction of the error in the judgment and decree, even if there is error in the pleadings, reliance was placed upon Gulzara Singh and others v. Devinder Singh and others, (2004-3) PLR 330 and Mrs. Meena Kumari and another v. General Public and others, (2007-3) PLR 533.

On the other hand, learned counsel for the respondents submitted that the learned court below had decreed the suit in terms of the pleadings and prayer made by the petitioner before the court. The description of the property, as was given by the petitioner in the plaint, has been made part of the judgment and decree. It is too late in the day for the petitioner to now seek correction thereof, as it would amount to grant of relief pertaining to the property which was never sought. Relying upon Patti Amma v. Raman Nair, AIR 1962 Kerala 6, it was submitted that amendment of decree to rectify a judgment which is defective on merits is not permissible in law.

Heard learned counsel for the parties and perused the paper book. Before I proceed to discuss the facts of the present case, I deem it appropriate to discuss the scope of Section 152 CPC, on which much arguments have been addressed by learned counsel for the parties and judgments have also been cited. The basis of the provision under Section 152 CPC is found on the maxim actus curiae neminem gravabit i.e., an act of the court shall prejudice no man. The judgment, which is quite close to the facts in the present case is Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181, wherein Hon'ble the Supreme Court opined that any error occurred in the decree on account of arithmetical or clerical error or accidental slip can be rectified by the court. The principle behind this is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the decree must be properly reflected therein, otherwise it would antithesis to the principle of advancing the C.R. No. 1289 of 2004 [3] cause of justice. The accidental slip or omissions should be attributable to the court which though the court intended to say but omitted. No new arguments or rearguments are required for such correction. Paragraphs 13 and 14 of the aforesaid judgment can very well be referred to. The same are extracted below:

"13. So far as the legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 CPC, any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases on the point may be made:

The basis of the provision under Section 152 CPC is found on the maximum actus curiae neminen gravabit i.e. An act of court shall prejudice no man (Jenk Cent-118) as observed in a case reported in Assam Tea Corpn. Ltd. v. Narayan Singh, AIR 1981 Gau

41. Hence, an unintentional mistake of the court which may prejudice the cause of any party must be rectified. In another case reported in L. Janakirama Iyer v. P. M. Nilakanta Iyer, AIR 1962 SC 633, it was found that by mistake the words "net profit" were written in the decree in place of "mesne profit". This mistake was held to be inadvertent. In Bhikhi Lal v. Tribeni, AIR 1965 SC 1935 it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in Master Construction Co. (P) Ltd. v. State of Orissa, AIR 1966 SC 1047, it has been observed that arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits are required for such rectification of mistake. In a case C.R. No. 1289 of 2004 [4] reported in Dwaraka Das v. State of M.P., (1999) 3 SCC 500, this Court has held that the correction in the order or decree should be of the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial court had not granted the interest pendente lite though such a prayer was made in the plaint but on an application moved under Section 152 CPC the interest pendente lite was awarded by correcting the judgment and the decree on the ground that non-awarding of the interest pendente lite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152 CPC by the courts beyond its scope has been deprecated. While taking the above view this court had approved the judgment of the Madras High Court in Thirugnanavalli Ammal v. P. Venugopala Pillai, AIR 1940 Mad. 29 on Maharaj Pattu Lal v. Sripal Singh, AIR 1937 Oudh 191. Similar view is found to have been taken by this court in a case reported in State of Bihar v. Nilmani Sahu,(1996) 11 SCC 528, where the court in the guise of arithmetical mistake on reconsideration of the matter came to a fresh conclusion as to the number of trees and the valuations thereof in the matter which had already been finally decided. Similarly in the case of Bai Shakriben v. Special Land Acquisition Officer, (1996) 4 SCC 533, this Court found omission of award of additional amount under Section 23(1-

A), enhanced interest under Section 28 and solatium etc. could not be treated as clerical or arithmetical error in the order. The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law.

14. As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the court to rectify such mistake. But before exercise of such C.R. No. 1289 of 2004 [5] power the court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise, that is to say, while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be reconsideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought the court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of the court's inherent powers as contained under Section 152 CPC. It is to be confined to something initially intended but left out or added against such intention." [Emphasis supplied].

This Court in Gulzara Singh's case (supra) opined that Section 152 of the CPC deals with two kind of situation firstly correction of clerical or arithmetical mistake in judgments, decrees or orders and secondly errors arising in those judgments and decrees from any accidental slip or omission. These may at any time be corrected by the court either on its own motion or on the application of either of the parties. Even an error which crept in the judgment and decree on account of certain error in the plaint for various reasons can also be corrected.

In Meena Kumari's case (supra), this Court held that even correction of an error in the judgment is possible even if there is some wrong description mentioned in the pleadings.

The facts of the case with regard to the ownership of the property of Shri Pandit Ram Singh; his taking loan from the office of Deputy Commissioner in the year 1954; on his failure the auction of the property by the Deputy Commissioner's office in the year 1973; the petitioner being successful bidder in the auction proceedings; deposit of the entire auction money of Rs. 8,000/- by the C.R. No. 1289 of 2004 [6] petitioner and also the fact that he is in continuous possession of the property since July, 1973, are not in dispute.

If the facts mentioned are considered in the light of pronunciation of law, as referred to above, it would be established beyond doubt that as far as identity of the property is concerned, the same is not in dispute. In the plaint filed by the petitioner, the description of the property was given as under:

"Rect. and Killa No. 67/34, Rect. and Killa No. 16, 17/2, 12, 22/2 measuring 32 kanals."

However, according to the petitioner, the correct description was as under:

"Rect. No. 67, Killa No. 16, Rect. No. 34, Killa No. 12, 19/2 and 22/2, total measuring 29 kanals 10 marlas."

A perusal of the aforesaid two reproduced descriptions of the property shows that there was some mistake in providing the description of the property. Except that for correct killa No. 19/2, it was typed as 17/2, all other Rect. and Killa numbers find mention correctly . However, the total area of the land was reduced from 32 kanals to 29 kanals and 10 marlas.

The suit was filed by the petitioner for declaration to the effect that he was owner in possession of the suit property. The same was contested by the respondents that they are in possession of the property. The State was also a party in the suit as well as the appeal filed by the petitioner before the courts below on an earlier occasion. In the entire proceedings, the fact that the property was sold to the petitioner, being highest bidder in an open auction, was not disputed. The description of the property was also not disputed. The only stand taken by the State was that the money paid by the petitioner being highest bidder in the auction was deposited in R.D. Account and kept in a Trust money till the finalisation of the sale by the competent authority. The physical possession of the petitioner on the property was also proved on record beyond doubt by way of admission by some respondents or lack of any positive evidence led by some of the respondents, who claimed that they are in possession of the property. It was under these circumstances that the appeal filed by the petitioner was allowed while setting aside the judgment and decree of the trial court holding that the petitioner was delivered possession of the property on payment of full sale consideration to the State as highest bidder in an open auction held way back in 1973 and the sale having not been cancelled till the date the appeal was decided, the petitioner was declared as owner in possession of the suit property. Meaning thereby that parties to the suit contested the same knowing fully well the subject-matter thereof and C.R. No. 1289 of 2004 [7] also the property which was in dispute. The only question remains is that there is some error in mentioning the description of the property in the plaint, on account of which the petitioner is facing difficulty in getting the same mutated in his name and he is being deprived of enjoying the fruits of the decree passed in his favour, even though the property was purchased by him on payment of full sale consideration more than 35 years ago.

In view of my above discussion, I find that it was a case of clerical inadvertent error which does not affect the merits of the case and can very well be corrected in an application filed by the petitioner under Section 152 CPC.

Accordingly, the present revision petition is allowed. The impugned order passed by the learned court below is set aside and the application filed by the petitioner for correction for description of the property in the judgment and decree passed by Additional District Judge, Rohtak in Civil Appeal No. 25 of 1991, decided on 26.10.1995, is accepted.

(Rajesh Bindal) Judge 21.1.2009 mk (Refer to Reporter)

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Punjab-Haryana High Court