Punjab-Haryana High Court
Dharampal & Others vs Ram Jawari & Others on 22 March, 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 2687 of 2008.
Date of Decision : 22.3.2010.
Dharampal & others.
.....Petitioners.
Versus
Ram Jawari & others
......Respondents
CORAM : HON'BLE MR. JUSTICE NAWAB SINGH
Present: Mr. B. S. Bedi, Advocate,
for the petitioners.
Mr. B.R. Gupta, Advocate,
for the respondents.
NAWAB SINGH J.(ORAL)
This defendant's revision is directed against the order dated March 4th, 2008 passed by Additional Civil Judge (Senior Division), Kaithal, whereby, application filed by the petitioners for amendment of the decree was dismissed.
2. Ratti Ram and others (Respondents herein) filed civil suit No.332 of 1996 before Civil Judge (Senior Division), Kaithal against the petitioners herein with regard to land measuring 38 kanals 5 marlas situated in village Sirsal, Tehsil Kaithal, District Kurukshetra owned by Nanhi-defendant No.1. During pendency of the suit, Nanhi died. The petitioners filed counter-claim seeking decree for possession of the suit land on the basis of a decree dated March 31st, 1989 suffered and a Will executed by Nani in their favour. By judgment dated April 7th, 1998 Civil Judge (Junior Division), Kaithal dismissed the suit filed by the respondents-plaintiffs and accepted the counter claim filed by the petitioners-defendants. Operative paragraph whereby counter claim of the petitioners was accepted reads as under:-
"40. Keeping in view the above discussion and reasons set out, issue No.3 is partly decided in favour of the defendants and against the plaintiffs with the effect that defendants are entitled to get a decree for possession of the suit land and issue No.4 is also decided in favour of the defendants and against the plaintiffs as defendants had valued the counter claim properly for the purpose of Court fee and jurisdiction by affixing proper Court fee at the time of filing of written statement on 3.5.1989."
3. The decree was drawn. The relevant portion of the decree is reproduced as under:-
"This suit is coming on this day for final disposal before me (Bashesar Verma, Civil Judge (JD), Kaithal) in the presence of Shri S.K.Gupta, counsel for the plaintiffs and Shri S.K. Bindlish counsel for the defendants (defendant No.1 Smt. Nanhi died). It is ordered that the suit of the plaintiffs fails and is hereby dismissed leaving the parties to bear their own costs."
4. The grievance of the petitioners-defendants is that at the time of drawing the decree, it was not mentioned that counter claim of the petitioners was accepted whereby they were held entitled to get the possession of the suit land and on account of that, the decree could not be executed till date.
5. The only contention of learned counsel for the respondents was that since the matter was not agitated before the First Appellate Court, the petitioners were not entitled to the relief claimed by them by getting the correction in the decree. In support of the contention, he has relied upon (i) Bachan Singh & others vs. Harbans Kaur AIR 1973 P & H 103; (ii) Moriam Bibi vs. Abukhan ILR (1979) 1 Cut 131.
6. It is not in dispute that judgment and decree dated April 7th, 1998 attained finality upto the Hon'ble Apex Court. During the course of arguments, a specific question was put to the learned counsel for the respondents-plaintiffs as to whether by judgment dated April 7th, 1998, petitioners were held entitled to get possession of the suit land or not. The answer was in affirmative. Order 20 Rule 6(1) of Code of Civil Procedure postulates that the decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. The Rules and Orders of Punjab and Haryana High Court Vol.1 Chapter 11 Part-B specifically lay down that the decree should be framed by the Judge with most careful attention. It must agree with the judgment, and be not only complete in itself but also precise and definite in its terms. It should specify, clearly and distinctly the nature and extent of the relief granted, and what each party, affected by it, is ordered to do or forbear from doing. Every declaration of right made by it must be concise, yet accurate; every injunction, simple and plain.
7. The question before this Court is that if there has been some omission on the part of the trial Judge in drawing up the decree, should the party be made to suffer for fault of the Judge.
8. In the case of Rodger v. Comptoir d'Escompte de Paris, (1871) 13 PC 465: LJ 40 PC 1, Lord Cairn's L.C., had observed that -
"One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors". In other words, no person should be made to suffer any injury in the eye of law for no fault or mistake of the Court or its Officers."
9. This principle of law has been followed and approved by their Lordships of the Hon'ble Supreme Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava and Others, AIR 1961 SC 832 by observing as under:-
" ............ The failures of the trial Court to draw up the decree as well as the failure of the relevant department in the High Court to examine the defect in the presentation of the appeal at the initial stage have contributed substantially to the present unfortunate position. In such a case there can be no doubt that the litigant deserves to be protected against the default committed or negligence shown by the Court or its Officers in the discharge of their duties".
10. Drawing up of decree is the function of the Court and its office, and it would be unreasonable to penalise a party for the default of the office and to deprive them of their rights which they had obtained after Civil Court judgment in their favour. This is the spirit of law as has been observed in Niyammat Ali Molla vs. Sonargon Housing Co-operative Society Ltd. & others 2007(3) ACJ 460 SC.
11. In view of the law enunciated in the aforesaid authorities, the authorities relied upon by the learned counsel for the plaintiffs-respondents are of no help to him.
12. Above being the legal and factual position, the revision petition is accepted. Order under challenge is set-aside. The trial Court is directed to prepare the decree as per its judgment dated April 7th, 1998 passed in Rati Ram & another vs. Smt. Nanhi & others.
(NAWAB SINGH) JUDGE 22.3.2010.
SN