Delhi High Court
K.B. Madan And Co. vs Iffco on 3 December, 2003
Equivalent citations: AIR2004DELHI131, AIR 2004 DELHI 131
Author: Manmohan Sarin
Bench: Manmohan Sarin
ORDER Manmohan Sarin, J.
1. This is an application moved by the plaintiff under Sections 152-153-A r/w. Section 151, CPC, praying to correct what the plaintiff labels as an inadvertent error/mistake in the judgment dated 13th October, 2000. It would be necessary to recapitulate the facts giving rise to the present application in some detail to appreciate and understand the prayer being made and the scope thereof. Reply to the application has been filed. It is opposed as a dilatory tactics to prevent the defendant from executing the decree passed in its favor. Defendant has already filed an execution application and the present application is intended to stall the same.
2. Plaintiff filed the present Suit No. 877/ 1997 for possession. Plaintiff did not claim mesne profits, but averred in para 10 that he reserved its right to claim profits. Plaintiff claimed that the tenancy had been terminated earlier on 17th September, 1994, and again on 9th August, 1995, w.e.f. 31st August, 1995. Plaintiff had also given the statutory notice on 30th July, 1996 as required to be given under the Co-operative Societies Act. The defendants in the written statement denied receipt of the notice. Rather it was contended that the defendant, had exercised its option for renewal of lease. In the event, plaintiff moved an application under Order XII, Rule 6, CPC, registered as IA. No. 1853/1998. The said IA was decided by the learned single Judge of this Court vide Order dated 13-12-2000. The suit for possession was decreed and the operative portion of the said judgment reads as under :--
"A decree for eviction is thus passed against the defendant based on the admission that the defendant was a tenant and was paying the rent of the premises and there was a three year renewal ending on 31-12-1997. In this view of the matter, the plaintiff is entitled to a decree for eviction under Order XII, Rule 6, CPC, and this application is accordingly allowed. However, in view of the averments in para 5 of the written statement and its reply in the replication by the plaintiff relating to the security deposit lying with the defendant and the fact that no adjustments or claims have been pleaded by the plaintiff and the fact that no mesne profits have been claimed in the plaint, the defendant will return by a bank draft a sum of Rs. 10,82,400/- held by it as security deposit simultaneously at the time of handing over of the vacant possession by the defendant to the plaintiff. No order as to costs."
3. The above operative portion contained a typographical error inasmuch as the order mentions that the security deposit was lying with the defendant and it directs the defendant to return by bank draft a sum of Rs. 10,82,400/-. Security deposit was admittedly lying with the plaintiff. An application being IA No. 6865/2002 was moved for correction of error. Vide Order dated 20th August, 2002, learned single Judge recorded the plaintiffs statement that he would place the amount of Rs. 10,82,400/- in this Court. However, the plaintiff desired the Court to consider the aspect of damage to the property which had been revealed only in the month of February, 2002 at the time when possession was handed over in the presence of the Commissioner appointed by the Division Bench. The Court directed the amount of security deposit lying with the plaintiff to be deposited in the Court. Learned counsel for the defendant nevertheless submitted that it was not open for the Court to examine these aspects in a concluded judgment.
4. Certain attempts at settlement were made which did not come through. Again vide Order dated 25-2-2003, it was noted that the amount of Rs. 10,82,400/- had been deposited by the plaintiff in Court. The Court allowed the application IA No. 6865/2002, with the following observations :--
"In this view of the matter, the application of the defendant is allowed to the extent that the typing mistake which occurred in the judgment and decree dated 13-12-2000 is modified so as to direct the plaintiff (instead of defendant, which was wrongly typed) to return to the defendant a sum of Rs. 10,82,400/- held by the plaintiff as security."
5. Thereafter, another Order was passed by the Court on 25th February, 2003, wherein a direction was given that the amount deposited by the plaintiff/non-applicant in Court was liable to be returned to the plaintiff/non-applicant leaving the defendant to recover the amount by way of execution, of the decree. However, the learned Judge went further to notice that the plaintiff was asked whether he would like the amount to be paid to the defendant but he declined on the ground that till the plaintiffs claim is satisfied, the amount should not be released.
6. It would be seen that in the earlier portion of order, amount was directed to be released to the plaintiff, while in the later portion the Court seems to be enquiring from the plaintiff whether he would like the amount to be paid to the defendant and noted the plaintiffs unwillingness for the same.
7. Learned counsel for the parties inform that the factual position is that the amount is lying deposited in the Court and has not been returned to the plaintiff.
8. Plaintiff in the suit for possession had not referred to security deposit. The defendant in the preliminary objections stated that interest free security deposit was withheld. In the replication, plaintiff submitted that security deposit was liable to be refunded upon handing over of possession and subject to adjustment or claims. Counsel for plaintiff submits that plaintiff has filed a second suit being S. No. 2568/1997 wherein the plaintiff has claimed mesne profits and damages and once this claim is substantiated, it would be unjust to refund the security deposit to the defendant.
9. The question here is not of refund. There is a decree/order passed dated 13-12-2000, which directs the plaintiff to refund the security deposit. The inadvertent typographical error therein stands corrected by subsequent Order by substituting the words 'plaintiff' instead of 'defendant'. The question to be considered by me in this application is whether the plaintiff in the aforesaid facts, as noted, is entitled to claim that there was an inadvertent error or a clerical error or omission which can be corrected under Sections 152 and 153-A, CPC, to negate the direction given by the learned Judge, while decreeing the Suit for possession and directing the refund of security deposit. The plaintiffs if aggrieved by the said order on merits could have preferred an appeal against the same. In any case it does not appear to be a case of correction of an inadvertent error or omission. Learned counsel next submitted that there was an error apparent inasmuch as the Court, while passing the judgment referred to certain averments in para 5 of written statement, while there are no such averments in the written statement. The pleadings have been noticed earlier in the present order. A more erroneous reference to para 5 of the written statement cannot invalidate the order. In any case plaintiff could have sought review of the order, if it considered this to be an error apparent. In view of the foregoing discussion, the application is not maintainable and is dismissed.
IA stands dismissed.