Himachal Pradesh High Court
Sneh Lata And Others vs . Subhash Chand And Others. on 3 October, 2023
Sneh Lata and others vs. Subhash Chand and others.
.
CMP No.15206 of 2022 in FAO No.128 of 2012 03.10.2023 Present: Mr. Vivek Singh Thakur, Advocate, for the applicants/appellants.
Ms.Shivani Tegta, Advocate, vice Ms.Anjali Soni Verma, Advocate, for respondents No.1 and 2.
of Learned vice counsel for respondents No.1 and 2 has submitted that she has no objection, in case, the present rt application is allowed.
2. The present application has been filed for correction of the name of applicant No.3. It has been asserted that in the memo of parties, the name of applicant No.3 was shown as Kuldeep, whereas his actual name in the academic documents like matriculation certificate and Aadhar Card is Sahil Choudhary, therefore, the present application for seeking the correction of the name of the applicant No.3.
3. No reply was filed to the application.
4. It was laid down by Hon'ble Supreme Court of India in Niyamat Ali Molla v. Sonargon Housing Coop. Society Ltd., (2007) 13 SCC 421 : 2007 SCC OnLine SC 1284 that the power under Section 152 of CPC is not confined to the amendment of the judgment and decree containing an error on the part of the Court. This power also extends and error committed by the parties in their pleadings. It was observed:
"18. Section 152 of the Code of Civil Procedure empowers the court to correct its own error in a ::: Downloaded on - 03/10/2023 20:38:35 :::CIS judgment, decree or order from any accidental slip or .
omission. The principle behind the said provision is actus curiae neminem gravabit i.e. nobody shall be prejudiced by an act of court.
19. The Code of Civil Procedure recognises the inherent power of the court. It is not only confined to the amendment of the judgment or decree as envisaged under Section 152 of the Code but also of inherent power in general. The courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the court cannot exercise the said rt jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion, should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the court both in exercise of its power under Section 152 as also under Section 151 of the Code of Civil Procedure. Such a power of the court is well recognised.
20. In Samarendra Nath Sinha v. Krishna Kumar Nag [AIR 1967 SC 1440 : (1967) 2 SCR 18] this Court held : (AIR p. 1443, para 11) "11. Now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.
'Every court', said Bowen, L.J. in Mellor v. Swire [(1885) 30 Ch D 239 (CA)] 'has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the court so as to carry out its intention and express the meaning of the court when the order was made.' In Janakirama Iyer v. Nilakanta Iyer [AIR 1962 SC 633] the decree as drawn up in the High Court had used the words 'mesne profits' instead of 'net profits'. In fact the use of the words 'mesne profits' came to be made probably because while narrating the ::: Downloaded on - 03/10/2023 20:38:35 :::CIS facts, these words were inadvertently used in the .
judgment."
21. The question came up for consideration before the Calcutta High Court in Bela Debi [AIR 1952 Cal 86] , wherein it was held : (AIR pp. 89-90, paras 19-20) "19. It will thus be seen that there is a diversity of judicial opinion as to how far a court can go in rectifying its own decree. Where, of course, the of amendment is in order to carry out its own meaning, there is no doubt about the power of the Court in effecting such corrections (see St. Nazaire rt Co., In re [(1879) 12 Ch D 88 (CA)] ; Preston Banking Co. v. William Allsup & Sons [(1891-94) All ER Rep 688 : (1895) 1 Ch 141 (CA)] ). Nor can it be disputed that it has power to rectify mistakes which are of a ministerial kind (see Mellor v. Swire [(1885) 30 Ch D 239 (CA)] ). But the difficulty arises when it is found that the mistake is not one of the Court but is a mistake of the parties themselves.
Mistakes in the description of properties in deeds, is illustrative of this kind of mistake. It is the parties who have made the mistake, and the mistake is continued in the pleadings and the decree. According to one view, Section 152 is confined to acts of the Court and, therefore, mistakes of parties made in the pleadings or deeds and documents evidencing the transaction cannot be corrected (L. Ram Chander Sarup v. Mazhar Hussain [AIR 1919 All 264] ). The second view is that under this section and Section 151, plaint, judgment and decree all can be amended (see Shiam Lal v. Mt. Moona Kuar [AIR 1934 Oudh 352] , AIR at p. 354; Ram Chandra Sahu v. Jamna Prasad [AIR 1935 Oudh 92] ). A third view is that it is permissible under such circumstances to amend the decree and it is unnecessary to amend the plaint (Badri Pande v. Chhangur Pandey [AIR 1933 All 102] ; Jamini Bala Biswas v. Bank of Chettinad, Ltd. [AIR 1935 Rang 522] , AIR at p. 523). Lastly, there is the view, which I have already noted, which goes to the extent of holding that the Court cannot only rectify pleadings and decrees but rectify documents evidencing the transactions themselves, upon which the suit was founded.
20. I shall now state, what in my opinion, is the true meaning of Section 152, Civil Procedure Code. I am not in favour of giving a narrow construction ::: Downloaded on - 03/10/2023 20:38:35 :::CIS to Section 152. I do not agree that Section 152 .
must necessarily refer to an 'accidental slip or omission' of the Court itself, or its ministerial officers. It does not say so in the section itself, and should not be interpreted as such. Where it is the Court's own accidental slip or omission, or that of its ministerial officers, there can be no doubt that the section applies. But it gives power to rectify any accidental slip or omission in a of judgment, decree or order, and might include an accidental slip or omission traceable to the conduct of the parties themselves. But it must be an 'accidental slip or omission'. A mistake made rt by the parties in a deed upon which the suit is founded, and repeated in the judgment, decree or order, may or may not be an 'accidental slip or omission'. Where it is clear, that such is the case, then I do not see why the Court cannot set it right. In doing so, what is going to be rectified is, the judgment decree or order, and it is not at all necessary to rectify either the pleadings or the deed. In making such corrections, however, the Court can only proceed on the footing that there could be no reasonable doubt as to what it really intended to say in its judgment, decree or order. It cannot go into any disputed questions. If there is a particular description of a property in a deed, and a suit has been instituted on the strength of that description, and a decree passed, it is not permissible in proceedings under Section 152 to go into disputed questions as to what property was intended to be dealt with, by the parties in the deed. I agree with Gentle, C.J. that such a question can only be dealt with, in appropriate proceedings under the Specific Relief Act (see T.M. Ramakrishnan Chettiar v. G. Radhakrishnan Chettiar [AIR 1948 Mad 13] ). But it may so happen that the mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed its judgment, decree or order. For example, suppose in a conveyance a property is described as '24 Chowringhee Road, Bhawanipur'. It would be clear to everybody what property was meant, and it cannot be seriously doubted that in stating that the property was in 'Bhawanipur', the parties had committed an 'accidental slip or omission'. In such a case, I would not go to the extent of holding that the Court has no power to correct the ::: Downloaded on - 03/10/2023 20:38:35 :::CIS judgment, decree or order which has repeated the .
mistake. In doing so, the Court need not correct the pleadings or the document but its own decision. In my opinion, it is not necessary in such a case to amend the pleadings or to rectify the deed, therefore, no question arises as to whether the Court has power to do so. It is, however, quite clear that such cases must be of rare occurrence, and the scope thereof is severely of limited. The power cannot be extended to the resolving of controversial points, and a decision as to what the parties intended or did not intent to rtdo. Apart from this exceptional case, I hold that the Court cannot correct errors anterior to the proceedings before it. For such a purpose, the proper proceeding is by way of a suit under Section 31, Specific Relief Act. To this extent, I agree respectfully with the view enunciated by Gentle, C.J. in T.M. Ramakrishnan Chettiar v. G. Radhakrishnan Chettiar [AIR 1948 Mad 13] and the view expressed by Young, J. in Shujaatmand Khan v. Govind Behari [AIR 1934 All 100 (2)] . Applying these principles to the facts of this case, I think that the rectification asked for is impossible. If there has been a mistake in the original agreement it is a mistake which is fundamental, and it is impossible without going into evidence, to decide as to what the parties meant. There are facts in favour of the contention put forward by either party and I cannot describe it as an error (if there is at all any error) as can be called 'an accidental slip or omission' as contemplated in Section 152. In any event, such slips or omissions cannot be rectified in proceedings under Section 152 or even under Section 151 of the Code."
We, with respect, agree with the aforenoticed view.
22. In Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan [(2003) 1 SCC 197 : AIR 2003 SC 351] this Court opined that when a decree had been drawn up by the High Court, the Court can take recourse to Section 152 of the Code stating : (SCC p. 203, para 14) "14. ... In our opinion, the successful party has no other option but to have recourse to Section 152CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or ::: Downloaded on - 03/10/2023 20:38:35 :::CIS errors arising therein from any accidental slip or .
omission being corrected at any time by the court either on its own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the court by couching the reliefs to which the plaintiffs were of entitled in the event of their succeeding in the suit. Section 152 enables the court to vary its judgment so as to give effect to its meaning and rtintention. Power of the court to amend its orders so as to carry out the intention and express the meaning of the court at the time when the order was made was upheld by Bowen, L.J. in Swire, Re, Mellor v. Swire [(1885) 30 Ch D 239 (CA)] subject to the only limitation that the amendment can be made without injustice or on terms which preclude injustice. Lindley, L.J. observed that if the order of the court, though drawn up, did not express the order as intended to be made then 'there is no such magic in passing and entering an order as to deprive the court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to the House of Lords by way of appeal.' "
23. The same Bench again in Pratibha Singh v. Shanti Devi Prasad [(2003) 2 SCC 330 : AIR 2003 SC 643] held :
(SCC pp. 336-37, para 17) "17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47CPC depending on the facts and circumstances of each case -- which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152CPC by the court which passed the decree by supplying ::: Downloaded on - 03/10/2023 20:38:35 :::CIS the omission. Alternatively, the exact description .
of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it of would be more appropriate to invoke Section 47CPC."
24. In State of Punjab v. Darshan Singh [(2004) 1 SCC rt 328 : AIR 2003 SC 4179] , however, it was held : (SCC pp. 332-33, para 12) "12. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate passing of effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very court or the tribunal cannot, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party, if at all, is to file an appeal or revision before the higher ::: Downloaded on - 03/10/2023 20:38:35 :::CIS forum or review application before the very .
forum, subject to the limitations in respect of such review. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the Code even after passing of effective orders in the lis pending of before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. rtSimilar view was expressed by this Court in Dwaraka Das v. State of M.P. [(1999) 3 SCC 500] and Jayalakshmi Coelho v. Oswald Joseph Coelho [(2001) 4 SCC 181] ."
5. Therefore, the Court has jurisdiction to correct the error committed by the party in a pleading and the present application will fall within the purview of Section 152 of CPC, even if no mistake was committed by the Court. It was laid down by Kerala High Court in Kannan v. Nrrayani, 1979 SCC OnLine Ker 150 : 1980 KLT 9 : AIR 1980 Ker 76, that when the decree passed by the trial Court had merged in the decree of the Appellate Court, the application for amendment will lie before the Appellate Court and not before the trial Court. It was observed:
"8. Though there were divergent views expressed by courts in India on the question of merger of the decree of the trial court in that of the appellate court the preponderance of the authority seems to favour the view that there would be such merger. Chandrakala v. Central Bank (AIR. 1959 Cal.
153); Hussain Sab v. Sitaram (AIR. 1953 Bom.
122); Minni Zulekha Bi v. Kulsum Bi(AIR. 1941 Mad.
123); Subbamma v. Madhavrao (AIR. 1946 Mad.
492); Ram-sunder v. Panakuer (AIR. 1979 Pat.
5); Kulwanti Devi v. V.A. Singh (AIR. 1959 Pat. 591) and Ramanna v. Sreeramalu (AIR. 1958 A.P. 768) all express the view that a decree of the trial court will ::: Downloaded on - 03/10/2023 20:38:35 :::CIS merge in the decree of the appellate court. A later .
decision of the Allahabad High Court in Chiniamani v. Debi Prasad (AIR. 1934 All. 971) takes a contrary view and referring to the words 'at any time' occurring in S. 152 of the Code considers it as indicating that the section gives power to amend even after the appeal is decided. But this decision of the Allahabad High Court does not notice the earlier Full Bench decision of the same court in Muhammad of Sulaiman Khan v. Muhammad Yar Khan (11 ILR. All.
267). The Allahabad High Court itself is seen to have reverted to the earlier view in Durga Singh v. Wahid Raza (AIR. 1965 All. 226).
rt
9. As early as in 1910 the Privy Council had, in Brij Narain v. Tejbal Bikram Bahadur (ILR. (1910) 32 All.
295) indicated that alteration of a decree by the Court which passed it, if that had been affirmed in appeal, was without jurisdiction. An application for amendment was made in that case on the ground that though the judgment dated 30th January, 1901 gave to the mortgagee no interest pendente lite or future interest the decree based on it allowed such interest. The Subordinate Judge, notwithstanding the fact that the decree had been confirmed in appeal, allowed the amendment, striking out the award of interest pendente lite and future interest. It was in that context that the power to make that amendment was challenged. The challenge succeeded. The Privy Council said thus:
"Their Lordships have not had the advantage of hearing the case argued for the respondent, but they think the High Court have themselves said enough to make it clear that if the decree of the first court was made without jurisdiction as altering a decree after it had been affirmed on appeal in the case of Lachmas Das, so also the alteration in Brij Narain's case was equally ineffectual, and ought not to have been allowed to stand"
10. The Supreme Court observed in the decision in U.J.S. Chopra v. State of Bombay (AIR. 1955 SC. 633 at page 649) thus:
"A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full bearing in the presence of both the parties would certainly be arrived at after due consideration of the evidence and all the arguments and would therefore be a ::: Downloaded on - 03/10/2023 20:38:35 :::CIS judgment and such judgment when pronounced .
would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below."
11. The rule in Brij Narain's case already adverted to was noticed and approved by the Supreme Court in Gojer Brothers v. Ratan Lal ((1974) 2 SCC 453 : AIR.
of 1974 SC. 1380). At page 1384 the Supreme Court said thus:
"An application of this very principle yields the rt result that if the Court of appeal confirms, varies or reverses the decree of the lower Court, the decree of the appellate court is the only decree that can be amended Brij Narain v. Tejbal, 37 IA 70 (PC) or that the limitation for executing a decree runs from the date of the decree capable of execution and that is the decree of the appellate court which supersedes that of the court of first instance 53 Ind. App. 197 : (AIR. 1926 PC. 93); or that if mesne profits are ordered from the date of suit until the expiry or three years after the date of the decree, the decree to be considered is the decree capable of execution so that if the decree of the trial court is confirmed in appeal, three years will begin to run from the date of the appellate decree (1900) 27 Ind. App. 209 (PC)."
12. It appears to us, therefore, that the view taken by the Division Bench in Malayalam Plantations Ltd. v. Varkey Chacko (1969 KLT. 710) is, with great respect to the learned Judges, not the correct view.
13. There is another answer to the case of the revision petitioner before us. S. 153-A of the Code of Civil Procedure has been incorporated in the Code by Code of Civil Procedure (Amendment) Act, 1976. That section reads thus:
"153A. Power to amend decree or order where appeal is summarily dismissed--
Where an appellate Court dismisses an appeal under R. 11 of Order XLI, the power of the Court to amend, under S. 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, ::: Downloaded on - 03/10/2023 20:38:35 :::CIS as the case may be, passed by the Court of first .
instance."
14. When the Statute makes specific provision that when the dismissal of an appeal is in limine under Order XLI Rule 11 the court of first instance will have the power to correct the decree or order, it logically follows that this would not be the case where the appeal has been dismissed not in limine but on the of merits. This would be sufficient to hold against the revision petitioner and would be a complete answer to his case. Counsel for the revision petitioner urges that we should not read Section 153-A in a plain manner, rt but on the other hand understand that provision in the background that divergent views had been expressed by courts on the question whether a dismissal of the appeal in limine would result in merger of the decree of the trial court in the decree of the appellate court and that was sought to be resolved by the amendment. The courts which took the view that when an appeal is disposed of on the merits, the decree of the trial court merges with that of the appellate court, were themselves divided on the issue whether in cases where the disposal of the appeal by the appellate court was in limine under Order XLI Rule 11 of the Code there would be such merger. According to counsel S. 153-A of the Code is intended to solve this situation and to provide that in such a case the decree that is to be amended would be that of the court of first instance. The courts in India were more or less uniform on the question of merger of decree in the appellate decree when the appeal is disposed of on the merits, of course, barring exceptions such as the view expressed by this Court in 1969 KLT. 710. Apparently, the legislature did not think it necessary to make any provision in regard to the amendment in cases where appeals are disposed of not under Order XLI Rule II but on the merits. S. 153-A eloquently implies that in cases of disposal of appeals otherwise than under Order XL Rule 11 the Court of first instance would not have the power to amend its decree or order. In these circumstances we hold that except in cases to which S. 153-A of the Code of Civil Procedure applies, where there has been an appeal the decree under appeal merges in the decree in appeal and it is only the appellate court that could correct or amend the decree under S. 152 of the Code. In this view the order of the court below is correct and calls for no ::: Downloaded on - 03/10/2023 20:38:35 :::CIS interference. The Revision Petition is dismissed.
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Parties are directed to suffer costs.
6. Hence, the application will be maintainable before this Court.
7. The copy of the Aadhar Card shows the name of of appellant No.3 as Sahil Choudhary. The name of his father as mentioned in the Aadhar Card is Udham Singh and his address is rt the same, which has been mentioned in the memo of parties. The copy of the matriculation certificate shows Sahil Choudhary to be the son of Udham Singh and Sneh Lata. Therefore, there is sufficient material on record to show that Sahil Choudhary is the son of Udham Singh and Sneh Lata.
8. The averment of the applicant that he was earlier known as Kuldeep and now he is known as Sahil Choudhary is duly supported by an affidavit. No affidavit has been filed on behalf of the respondents, therefore, the same is to be accepted as correct.
9. In view of the above, the present application is allowed and the name of applicant No.3 as Kuldeep is ordered to be corrected as Sahil Choudhary. Amended memo of parties be filed and necessary correction be made within a period of one week.
10. The present application stands disposed of.
(Rakesh Kainthla) Judge October, 03, 2023 (saurav pathania) ::: Downloaded on - 03/10/2023 20:38:35 :::CIS