Punjab-Haryana High Court
Ishwar Singh And Others vs Ram Pyari And Others on 12 October, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
Civil Revision No. 6512 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Date of decision: 12.10.2012
1. Civil Revision No. 6512 of 2010 (O&M)
Ishwar Singh and others
....Petitioners
Vs.
Ram Pyari and others
....Respondents
2. Civil Revision No. 112 of 2011 (O&M)
Ram Piari and another
....Petitioners
Vs.
Mahi Pal and others
....Respondents
CORAM: HON'BLE MR. JUSTICE A.N. JINDAL
******
Present:- Mr. Sanjiv Gupta, Advocate,
for the petitioners.
Mr. C.B. Goel, Advocate,
for respondent No. 6 (in CR No.6512 of 2010).
Mr. Maninder Arora, Advocate,
for the respondents (in CR No. 112 of 2011)
A.N. JINDAL, J (ORAL)
This order shall dispose of Civil Revision Nos. 6512 of 2010 and 112 of 2011, as common questions of law and facts are involved in both the cases. For reference, facts are taken from Civil Revision No. 6512 of 2010.
Smt. Madia @ Maria had filed a civil suit No. 26 on 08.02.1999 for possession of ½ share out of agricultural land Civil Revision No. 6512 of 2010 (O&M) 2 measuring 132 Kanals 17 Marlas while challenging mutation No.2135 dated 06.03.1994 regarding inheritance of Ghasi son of Mangat, as null and void.
Similarly, Ram Piari-petitioner had filed a civil suit No. 131 on 15.06.1995 titled as 'Ram Piari Vs. Sh. Krishna and others' for declaration to the effect that she was the owner of ¾ share out of the agricultural land as referred to above and had also challenged the aforesaid mutation No. 2135. However, she had also challenged the judgment and decree dated 06.01.1994. The petitioner had claimed that Ghasi son of Mangat was owner in possession of ½ share in the agricultural land, as fully detailed in head note of the plaint.
The Civil Judge (Junior Division), Panipat, vide judgment dated 30.04.2005, had decided both the suits together by passing a common judgment, whereby suit filed by the petitioner was dismissed and the suit filed by Madia @ Maria, now represented through respondents, was decreed with costs.
On account of the mistake committed in the plaint of civil suit No. 26 of 1999, though the total area of land and its Khasra numbers were written correctly, but the figures Rect. No. 172, Killas No.15/2 (5-5), 16/1 (4-7), Rect. No.173, Killa No.11 (8-
0), 12 (8-0) and 13 (8-0) before the figure 14 (8-0), were omitted in the plaint/head note of the above said suit. Due to the non- typing of the aforesaid khasra numbers in the plaint, the same were also not mentioned in the decree sheet of the above said suit and in the judgment of civil suit No. 131 of 2002 titled as 'Ram Piari Vs. Kishana etc.', at page No.43. Moreover, while typing the Civil Revision No. 6512 of 2010 (O&M) 3 decree sheet, the month of "May" was mentioned before 2005 in the last line instead of "April 2005". As a matter of fact, the suit was decided on 30.04.2005 and not on 30.05.2005. As such, the plaintiffs Madia etc.(now respondents) applied for amendment in the head note of the plaint as well as the decree sheet. Similarly, the aforesaid amendment was sought in the judgment and decree of civil suit No.131 of 2002 titled as 'Ram Piari Vs. Kishna etc.' It has been further averred that during the pendency of the appeals, Tek Ram had died and his legal heirs were brought on record by the orders of this Court. The appeal filed by the petitioners has been dismissed by this Court vide order dated 07.01.2009.
The aforesaid application filed by Mahipal and Nihali Devi, legal heirs of Tek Ram, for amendment in both the suites was accepted by the trial Court vide order dated 23.07.2010, against which the present petitions have been preferred by Ishwar Singh, Kanwal Singh, Kuldeep Singh sons of Puran-defendant No.2 in civil suit No.26 of 1999 and defendant Nos. 6, 7 and 8 in civil suit No. 131 of 2001 and Smt. Ram Piari.
It is not in dispute that the trial Court had passed the judgment and decree on 30.04.2005 and not on 30.05.2005. The word "May" before 2005 instead of "April" was wrongly recorded by the trial Court inadvertently in the judgment and decree passed in civil suit No. 131 of 2001. Therefore, it appears that the parties need not to dispute about this clerical mistake committed by the trial Court.
Similarly, it is also not in dispute that both the parties Civil Revision No. 6512 of 2010 (O&M) 4 were contesting over the land measuring 132 Kanals 17 Marlas, situated within the area of village Adiyana and mutation No. 2135 regarding inheritance of Ghasi was under challenge. The decree dated 06.01.1994 was also under contest between the parties. The petitioners, in their suit No. 131 of 2001, had also mentioned total 21 Kittas comprising of land measuring 132 Kanals 17 Marlas,including Rect. No.173, Killa Nos. 11, 12 and 13, whereas the respondents in civil suit No. 26 of 1999, omitted to mention these Killa numbers, though the total area of the land in dispute was mentioned in the plaint. As such, much dispute could not be raised about the mistake, to be rectified in the plaint/head note, judgment and decree sheet of the civil suit No. 26 of 1999 and in the judgment and decree sheet of civil suit no. 131 of 2002.
The prime question, to be raised in the case, is that since the matter was in appeal before the High Court or by way of S.L.P. in the Hon'ble Supreme Court, therefore, in terms of Section 153-A CPC, the trial Court cannot be treated as the Court in the first instance, which may be competent to make necessary correction.
Before I proceed to determine the competency of the trial Court to entertain an application under Section 153-A CPC, the said section is reproduced as under:-
"153-A. Power to amend decree or order where appeal is summarily dismissed.- Where an Appellate Court dismisses an appeal under Rule 11 of Order XL1, the power of the Court to amend, under Section 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 Civil Revision No. 6512 of 2010 (O&M) 5 or order, as the case may be, passed by the Court of first instance."
From bare reading of the aforesaid Section, it transpires that the said Section comes into play when the judgment passed by the trial Court becomes a subject matter of an appeal and is decided in terms of Order 41 Rule 11 CPC.
The matter with regard to the competency of the Court was elaborately discussed by a Division Bench of this Court in case Hakam Singh Vs. Jaswant Singh etc. 1974 AIR (Punjab) 235, wherein it was observed as under:-
"Once we concede that the order dismissing the appeal under Order 41, Rule 11 is a decree, then it automatically results in the merger of the decree of the Court below, and as a result thereof, it is this Court which can amend the decree. Moreover, the question of jurisdiction cannot be decided on the premises that the decree of the Court below remains untouched; rather it has to be decided keeping in view the fact that it is the judgment or order of this Court which has finally determined the rights of the parties. It is beyond my comprehension that after the final adjudication by this Court, the jurisdiction to amend the decree of the lower Court which has been affirmed as a result of the dismissal of the appeal would vest in the inferior Court. If such a course is permitted, then the result that would follow, would be that the lower Court would be in a position to again re-open the matter between the parties which had been finally adjudicated upon and settled between the parties by this Court. This course certainly is neither permissible nor warranted by any law. As earlier observed, I am in full agreement with the view taken by the High Courts of Andhra Pradesh, Allahabad, Madras and Calcutta and with respect, unable to concur with the view taken by the learned Judges of the High Courts of Patna, Bombay and Oudh and a learned Single Judge of this Court in Smt. Murti Devi and others Vs. Bishan singh and others (supra)."
This view formed by the Division Bench of this Court Civil Revision No. 6512 of 2010 (O&M) 6 was again affirmed in case Kehar Singh Vs. Piara Singh and another, 1990 (1) PLR 29, wherein it was observed as under:-
"We fully agree with the view taken in Gurbachan Singh's (supra). In this view of the matter, the order of the trial Court allowing the amendment is set aside. However, we do not want the decree-holder to start afresh for getting the amendment by the first appellate Court which attempt may again consume sufficient time before he gets the relief.
Admittedly, the suit was instituted by the decree-holder on 17.07.1976 and ultimately, the litigation came to an end on 25.09.1978. Since then, the relief has not been made available to the decree-holder and it is now after about 11 years, the decree-holder's attempt to get the relief may end in success. We are, therefore, of the view that this Court can and does hereby exercise its own powers to amend the decree. Said Section 153-A of the Code is an enabling section and it does not debar the superior Court to exercise its own powers to amend the decree. We are supported in this view by a case: Ram Bharsoey Lal v. Rameshwar Dayal, AIR 1284 Allahabad 167 wherein following observations have been made:
"......On its language, this provision enabling in character which permits the Court of first instance also to correct an error in the decree irrespective of the fact that the decree had merged in the decree of a superior Court. The provision does not divest the superior Court of the jurisdiction to effect correction in the decree itself."
The amendment made by the trial Court rendered substantial justice and the real relief to the decree-holder. On merits, the defendant had failed to prove his ownership to the immovable property on which he has made the construction. Technicalities as to which Court can allow the amendment should not stand in the way of the decree-holder to get his decree executed for getting him possession of the immovable property in pursuance of the decree which he obtained on 25.11.1997."
These two concurrent decisions given by this Court could not be confronted with any of the judgment by learned counsel for the respondents. Rather, the aforesaid view was Civil Revision No. 6512 of 2010 (O&M) 7 again followed by a Single Bench of this Court in case Gulzara Singh Vs. Devinder Singh, 2005 (1) RCR (Civil) 349, wherein it was observed as under:-
"9. After hearing the learned counsel for the parties and going through the case law referred to decree can be corrected by this Court in exercise of the powers conferred under Sections 152 and 153 read with Section 151 of the Code of Civil Procedure. This Court dismissed the second appeal on 07.10.1993 in the presence of the counsel for the parties in limine with words 'No merit. Dismissed.' The question which arises is whether such an order will amount to merger of the judgments of the Courts below with the order passed by this Court on 07.10.1993? The Full Bench of this Court in Daya Wanti's case had the occasion to consider this precise question wherein earlier Division Bench judgment of this Court in Matu Ram's case i.e. (1988-1) 93 P.L.R. 8 holding that the dismissal of appeal in limine would amount to merger. Keeping in view the principles of law laid down by Full Bench of this Court in Daya Wanti's case (supra), the dismissal of appeal in limine by this Court has the effect of merger of the judgment of the lower Appellate Court with that of this Court."
Learned Single Bench with regard to the competency of the Court to amend the decree, observed as under:-
"12. In view of the above, I do not find any substance in the objection raised by the learned counsel for the appellants that the application for correction of typographical or clerical mistake is not maintainable before this Court even though the appeal was dismissed in limine by this Court."
Since in the aforesaid judgment before the learned Single Bench of this Court, the question raised was that the application for making necessary correction was not maintainable before the High Court, in those circumstances the High Court did not agree to the contention raised and observed that the High Court had the jurisdiction to make the necessary amendment. As Civil Revision No. 6512 of 2010 (O&M) 8 such, it would not be inappropriate to hold that when the decree is passed by the trial Court and the appeal is decided under Order 41 Rule 11 CPC, then the Court in the first instance i.e. the District Judge or the Court which finally adjudicated the matter, is competent to decide the matter with regard to correction.
However, the question arises is, 'as to whether after setting aside the order passed by the first Appellate Court regarding correction, could be put to a fresh exercise by the Court of the first instance?' The civil suits reached the culmination after six years in the year 2005 and the appeals were decided finally in the year 2008-09. The application for amendment also reached the culmination after 1½ years i.e. on 23.07.2010. since then, this petition is pending adjudication before this Court. The necessary correction, sought to be made is not much in dispute and is just of a clerical nature. In these circumstances, to set aside the order at this stage would amount to depriving of the decree holders of the fruits of the decree for another decade, for which, they were not at fault, as they would have to initiate the process afresh in getting the amendment by the first Appellate Court, then it may also pass through the process of revision. The Division Bench of this Court in Kehar Singh's case (supra) while being conscious of the legitimate rights of the decree-holders and with an intention that they may not further suffer for want of the necessary correction in the judgment, exercised its powers to amend the decree while holding that it was an enabling Section and does not bar the superior Court to exercise its own powers to amend the decree without setting the clock back.
Civil Revision No. 6512 of 2010 (O&M) 9
Thus, while relying upon the Kehar Singh's case (supra) and in order to provide substantial justice and relief to the decree holders, I deem it appropriate to allow the amendment/correction in the plaint as well as in the judgment & decree as prayed for by the respondents.
Resultantly, both the petitions i.e. Civil Revision Nos. 6512 of 2010 and 112 of 2011 are disposed of with the observations that the amendments, as prayed for in the plaint as well as in the judgment and decree(s), are allowed and the petitions have to be ultimately dismissed.
(A.N.JINDAL) 12.10.2012 JUDGE ajp