Gujarat High Court
Vaibhav Ranchodbhai Patel vs Late Amathiben Thakor D/O Late Nathaji ... on 18 February, 2025
NEUTRAL CITATION
C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2049 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✔
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VAIBHAV RANCHODBHAI PATEL & ORS.
Versus
LATE AMATHIBEN THAKOR D/O LATE NATHAJI DAHYAJI AND
W/O LATE BABAJI GANGAJI THAKOR THROUGH LHRS & ORS.
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Appearance:
MR BHAVESH BABARIYA(6788) for the Petitioner(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 18/02/2025
ORAL JUDGMENT
1 Heard the learned Senior Counsel Ms.Trusha Patel with advocate Mr. Bhavesh Babariya for the petitioner. The present petition is filed under Article 227 of the Constitution of India seeking following relief:-
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to quash and set aside the impugned order dated 20.11.2024 passed below Exh.352 in Regular Civil Suit No.747 of 2015 by the Ld. 5 th Additional Judicial Magistrate, First Class, Ahmedabad (Rural), Ahmedabad and thereby, may be pleased to allow application below Exh.352 filed by the petitioners in the Regular Civil Page 1 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined Suit No.747 of 2015; at Annexure H (C) Pending the admission, hearing, and final disposal of the present petition, Your Lordships may be pleased to stay the operation of the order dated 20.11.2024 passed below Exh.352 in Regular Civil Suit No.747 of 2015 by the Ld. 5th Additional Judicial Magistrate, First Class, Ahmedabad (Rural), Ahmedabad at Annexure H. (D) Your Lordships may be pleased to grant Ex-parte ad-
interim relief in terms of prayer C above in the interest of justice;
(E) Your Lordships may be pleased to grant such other and further relief and/or in the interest of justice in favour of the petitioners."
2 As far as possible hereinafter, parties will be referred as per their original position in suit. The short facts of the case appears to be that:-
2.1 The petitioners herein are original defendant Nos. 7/a, 7/b, 7/c (hereinafter referred to as defendant No.7). The Special Civil Suit No.221 of 1994, which appears to have been converted into Regular Civil Suit No.747 of 2015, decided by Civil Judge, Ahmedabad (Rural) at Mirzapur was filed by respondent Nos. 1 and 2 - original plaintiffs. The suit came to be dismissed vide its judgment and decree dated 22.10.2024. The defendant No.7 was examined / cross-examined below Exh.336, which was concluded on 23.03.2023.
2.2 It further appears that the plaintiff had filed an application under Order XXXIX (2a) of Civil Procedure Code, 1908 (hereinafter referred to as CPC) contending interalia that the defendants to suit proceedings, more particularly defendant Nos.6 and 7, have breached the injunction so granted by the trial Court. It appears that such application was filed in the year 2022 (as the date of the application so annexed is not mentioned.) Page 2 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined 2.3 It further appears that trial Court has found defendant No.7 guilty of committing injunction so granted by the trial Court in favour of the plaintiff. It has been reported to this Court that petitioners have already challenged such order in appeal, which is pending for its adjudication.
2.4 At that stage, the need arise on the part of the defendant No.7 to get some portion of his cross-examination recorded by the trial Court to be corrected. The defendant No.7 had filed an application below Exh.352 on 20.11.2024 thereby, requested the trial Court to rectify a typographical error in his oral evidence so recorded at Exh.336.
2.5 After hearing the learned advocate for the defendant No.7 and kept the matter in the second sitting, where none turns up, the trial Court, after examining the merit of the application, has rejected vide its impugned order dated 20.11.2024.
3 Being aggrieved and dissatisfied with the impugned order dated 20.11.2024 passed by the 5 th Additional Chief Judicial Magistrate, First Class, Ahmedabad (Rural), Navrangpura, Ahmedabad, defendant No.7 has preferred the present application under Article 227 of the Constitution of India.
SUBMISSIONS OF THE PETITIONER 4 Learned Senior Counsel Ms. Trusha Patel for the petitioners would submit that the impugned order suffers from basic jurisdictional error as the request so made by the defendant No.7 could have been corrected by the trial Court by exercising its power under Section 151 read with Section 153 of CPC.
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6 Learned Senior Counsel Ms. Patel would further submit that correct typographical or mathematical error whenever pointed out to the trial Court, requires to be corrected, which is considered to be a ministerial act as per Rule 291 of the Civil Manual.
7 Learned Senior Counsel Ms. Patel would further submit that considering the request so made in the application and the evidence so recorded, more particularly cross-examination of defendant No.7, it is apparently a typographical error in recording the evidence of defendant No.7.
8 Learned Senior Counsel Ms. Patel would submit that when the defendant No.7, in their pleading and in their deposition, have categorically denied about factum of having no knowledge to the pendency of the suit and any injunction so granted by the trial Court, question of admitting such fact in the suggestion so made to him in the cross-examination would not arise thereby, there appears to be a typographical error in recording the cross- examination of defendant No.7.
9 To buttress the arguments, the learned Senior Counsel would rely upon the following decisions.
9.1 Decision of the Karnataka High Court in the case of N.P. Gopala Rao Vs. S. Lakshmanappa [Writ Petition No.22754 / 2013 (GM-CPC).
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10 Making the above submission, the learned Senior Counsel would request this Court to allow the present application in the interest of justice.
ANALYSIS 11 Before adverting to the issues, which are germane in the present application, I would like to remind myself the ratio laid down of the in following two decisions of Honourable Supreme Court of India. First one in a case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, wherein Hon'ble Apex Court of India has laid down the law whereby, every High Court is required to follow it, while exercising its power under Article 227 of the Constitution of India. The relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-
2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
Page 5 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined (2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and Page 6 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would Page 7 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
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(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215], followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 Page 9 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
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(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
(emphasis supplied) 7.1 The second decision in a case of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v.
Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) Page 11 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to."
(emphasis supplied) 12 The issues germane in the present application are in narrow compass and following points of determination need to be examined and answered by this Court.
i. Whether in the facts and circumstances of the present case, impugned application filed by defendant No.7 can be considered to correct his cross-examination as a typographical error?
ii. Whether in the facts and circumstances of the case, any gross error and or jurisdictional error committed by the trial Page 12 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined Court thereby, to deny such request made by the defendant No.7?
13 It would be profitable to refer and rely upon the following provisions of law while judging the issues involved in the present application.
"S.151. Saving of inherent powers of Court.--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
S.152. Amendment of judgments, decrees or orders.--Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
S.153. General power to amend.-- The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
CHAPTER XVIII - MISCELLANEOUS APPLICATIONS FOR NOT REQUIRING JUDICIAL ENQUIRY.
291. The following are some examples of applications not requiring judicial enquiry:-
(1) Applications under Section 39 to transfer a decree to another Court for execution.
(2) Application under Order XXI, rule 94, for granting a sale certificate.
(3) Applications under section 152, Civil Procedure Code, for correcting clerical or arithmetical mistakes or an accidental slip or omission in a judgment, decree or order.
(4) Applications for orders regarding reconstruction of documents in cases where the originals are lost or destroyed. "
14 Prima facie, after considering the aforesaid provisions of the CPC, there is no cavil that power is available with the Court to rectify any typographical or any mathematical error so committed Page 13 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined in any judgment, decree or order. So far as the power of Section 153 of CPC is concerned, such power, of course, entitles the Court to amend any defect or error in any proceeding in the Suit at any time, but later part of Section 153 would suggest that all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending upon such proceedings.
15 It is settled legal position of law that the error, which is considered to be a typographical one, is an error which is apparent on the face of record and need not depend upon going into the merits of the case. It is profitable to rely upon the decision of the Hon'ble Apex Court of India in the case of Srihari v. Syed Maqdoom Shah [(2015) 1 SCC 607], wherein, it has been held as under:-
"13. From the language of Section 152 of the Code, as quoted above, and also from the interpretation of the section given in State of Punjab v. Darshan Singh [(2004) 1 SCC 328 : AIR 2003 SC 4179] , the section is meant for correcting the clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from any accidental slip or omission. It is true that 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 under the guise of invoking after the result of the judgment earlier rendered. The corrections contemplated under the section are of correcting only accidental omissions or mistakes and not all omissions and mistakes. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152. In Bijay Kumar Saraogi [Bijay Kumar Saraogi v. State of Jharkhand, (2005) 7 SCC 748] also it has been reiterated that Section 152 of the Code can be invoked for the limited purpose of correcting clerical errors or arithmetical mistakes in judgments or accidental omissions.
23. This Court has earlier also reiterated in U.P. SRTC v. Imtiaz Hussain [(2006) 1 SCC 380 : 2006 SCC (L&S) 246] that the basis of the provision of Section 152 of the Code is found in the maxim actus curiae neminem gravabit i.e. an act of court shall prejudice Page 14 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined no man. As such an unintentional mistake of the court which may prejudice the cause of any party must be rectified. However, this does not mean that the court is allowed to go into the merits of the case to alter or add to the terms of the original decree or to give a finding which does not exist in the body of the judgment sought to be corrected."
(emphasis supplied) 16 So, in view of the aforesaid provision of law and the observation so made by Hon'ble Apex Court in the case of Srihari (Supra), if any error which is not apparent on the face of record and without going into the merit of the case, cannot be rectified, such error cannot be considered as a typographical error.
17 With this contour of position of law, what has been prayed in the impugned application and decided by the trial Court, needs to be decided.
18 The trial Court has considered impugned application and rejected it on the ground that when cross-examination of defendant No.7 has been recorded in the open court and principle of natural justice has been observed, the reasons/grounds so stated in the impugned application is ill-founded. In short, trial Court has not entertained the impugned application which is rejected.
19 This Court has gone through impugned application, filed by defendant No.7 - petitioner wherein have requested trial Court to correct one portion of the cross-examination of defendant No.7, which according to defendant No.7 is a typographical error. It is required to be noted that cross-examination of defendant no.7 was over on 23.03.2023 wherein, at the end, it has been so observed by Presiding Officer of trial Court that "the witness has been narrated the cross-examination, which is confirmed by him." In the cross-
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"It is not true that I am not aware that suit is pending in the present Court and prohibitory injunction is granted."
19.1 That defendant No.7, now, contending interalia that aforesaid cross-examination is wrongly typed as instead of typing "I am aware", it was typed "I am not aware". Thus, defendant No.7 wants to convey that statement made in the cross-examination is wrongly typed and it ought to have been typed as under:-
"It is not true that I am aware that suit is pending in the present Court and prohibitory injunction is granted."
19.2 Thus, it can be seen that request which was made by defendant No.7 by filing impugned application is not merely rectifying typographical error but if corrected, nature of admission so made by defendant No.7, would get changed.
20 The defendant No.7 has answered the question, which is in relation to his state of mind, which went on record and recorded during the course of his cross-examination held in the open court.
The defendant No.7 has also been narrated his cross-examination by the Presiding Judge at the relevant time, which is not disputed. So, prima facie, if the request so made by defendant No.7 in his impugned application would be accepted, then, it completely change the nature of his cross-examination in relation to the aforesaid statement so recorded in his cross-examination. This may seriously prejudice the rights of the plaintiff as the case maybe.
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22 If ratio of Srihari (Supra) apply to the facts of the present case, according to this Court, the correction so sought for in the impugned application by defendant No.7, by no stretch of imagination, can be considered as typographical error thereby, application is misconceived at law.
23 So far as placing reliance upon Rule 291 of Civil Manual is concerned, none of its sub-rules would be applicable in the facts of the present case as having so held that error which is sought to be rectified by defendant No.7 is not mere typographical error which can be corrected without going deep into the matter. It is not an error so apparent on face of record so pretended by defendant No.7.
24 The learned Senior Counsel Ms. Patel, during her course of submission, submitted that when defendant No.7 in the pleading, affidavit in lieu of examination-in-chief etc. have categorically denied about factum of having knowledge of pendency of suit and mentioned as the case maybe, the cross-examination so recorded can be considered as a typographical error. Such argument is a Page 17 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined misconceived notion as what is to be seen is the answer so given by witness in the cross-examination and accordingly recorded in the cross-examination and not what has been pleaded by the witness. When there is a clear admission coming forth from the cross- examination of witness, it cannot be wiped out by submitting impugned application under the pretext that it is a typographical error.
25 Furthermore, the stage at which such impugned application filed is also have some relevance so far the present case is concerned. As observed earlier, the breach of injunction application was filed in the year 2022, reply of defendant No.7 to such application was filed in December' 2022, cross-examination of defendant No.7 was over on 23.03.2023, suit was finally adjudicated on 25.10.2024 wherein, defendant No.7 was held guilty of committing breach of injunction by the trial Court. When the defendant No.7 has filed the appeal on 20.11.2024 before the District Court challenging the aforesaid order passed by the trial Court, at that stage, impugned application has been filed. So, considering the aforesaid dates and events and when the appeal filed by defendant No.7 is pending writ large before District Court, it would not be appropriate to consider the request of defendant No.7.
26 In a case of N.P. Gopala Rao (supra), the High Court of Karnataka has permitted correction in the cross-examination, which was in relation to documentary evidence and application for correction was immediately filed after recording of the evidence albeit, witness has put his signature confirming his cross- examination. The case on hand is completely different than the aforesaid case.
Page 18 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined 27 In a case of Dhanjibhai Veljibhai Chaudhary (supra), the Co-ordinate Bench of this Court has permitted correction after passing of the judgment in relation to the name of the village, which was wrongly typed in the plaint itself. Again, correction so permitted is backed by documentary evidence and apparently, Court has found that there is a typographical error in writing in the name of village. At the cost of repetition, the correction, which is sought for by defendant No.7 is not in relation to any reference to the document or the facts, which are so narrated in the documents on record but, as observed hereinabove, it was in relation to state of mind, which cannot be permitted to correct it under the guise of typographical error.
28 In a case of Ram Kumar (supra), Hon'ble Apex Court in the peculiar facts and circumstances of the case, has observed in Paragraph No.5 held that "*** It was a simple matter to be decided on the basis of actual statements made in the application and we are fully convinced that appellants had sought a reference for the entire land acquired and there was no reason whatsoever in the leaving out portion of the land, when the grievance of appellants was for enhancing the compensation, which was awarded at a low rate. ***" It is required to be noted here that in the case of Ram Kumar (Supra), the District Court has allowed application under Section 151 - 153 of CPC of land looser - farmer on the ground that there was a mistake on the part of land acquisition Collector while sending the statement under Section 19 of the Land Acquisition Act, 1894 wherein, some of the khasara numbers had not been shown in the Collector, which was considered as a accidental slip or omission. As this was based upon the factual aspect on the record, in this peculiar facts and circumstances of the case, it appears that Hon'ble Apex Court has restored the order of District Page 19 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025 NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined Court, which has positively exercised discretion in favour of the land looser - farmers. No such case is made out by the defendant No.7 in the case on hand.
29 Thus, none of the authorities so cited by learned Senior Counsel Ms. Patel would help her submissions and it cannot take the case of defendant No.7 further on the strength of these decisions, which are based on the peculiar facts and circumstances of the each case.
30 The upshot of the aforesaid discussion, observation and reasons, impugned application filed by defendant No.7 cannot be considered to correct his cross-examination as correction sought for would not fall in a category of typographical error.
31 Thus, in view of aforesaid, I am of the view that there is no gross error of law and or any jurisdictional error committed by trial Court while rejecting the impugned application filed by defendant No.7. So, considering the ratio of decisions of Hon'ble Apex Court in the case of Srihari (Supra), Sameer Suresh Gupta TR PA Holder (supra) and Garment Craft (supra), no interference is required of this Court in exercising its power under Article 227 of the Constitution of India.
32 Before parting with, it has been made clear that observations/reasons so assigned herein above by this Court is in relation to examine the merit of the claim of the petitioner so made in the impugned application thereby, to answer the issues so germen, in any case, such observations made by this Court should not influence the mind of the appellate authority which is seized with appeal filed by the defendant No.7-petitioners against the order of trial court in relation to breach of its order of injunction.
Page 20 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025NEUTRAL CITATION C/SCA/2049/2025 JUDGMENT DATED: 18/02/2025 undefined Such appeal be decided on its merit without being influenced by any of the observations made in this judgment.
33 The application is meritless, requires to be dismissed. It is, accordingly, dismissed. No order as to costs.
(MAULIK J.SHELAT,J) SAHIL S. RANGER Page 21 of 21 Uploaded by MR. SAHIL SAMIULLA RANGER(HC01898) on Thu Feb 20 2025 Downloaded on : Thu Feb 20 21:56:12 IST 2025