Himachal Pradesh High Court
Bhag Dei Rawat And Another vs Sanjay Sood And Another on 12 July, 2024
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( 2024:HHC:5160 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.464 of 2022
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Date of Decision : 12.07.2024
Bhag Dei Rawat and another
...... Petitioners
Versus
Sanjay Sood and another
......Respondents
Coram:
The Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting?1
For the petitioners : Mr. R.K. Khidtta and Mr. Nishant Khidtta,
Advocates.
For the respondents : Mr. Sumit Sood, Advocate.
Bipin Chander Negi, Judge (oral)
The present petition has been filed against the order dated 31.08.2022, passed by the learned Appellate Authority (II), Shimla in Rent Appeal No.4-S/13 (b) of 2020, whereby an application under Sections 151 & 152 of the Civil Procedure Code filed by the present respondents, seeking rectification of a typographical mistake which had crept in the eviction order passed by the Rent Controller dated 30.10.2020, was remanded back by the Appellate Authority (II), Shimla to the Rent Controller, Court No.1, Shimla, for consideration and decision thereupon.
2. I have heard learned counsel for the parties and gone through the pleadings.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 2 ( 2024:HHC:5160 )
3. Brief facts giving rise to the case at hand are that an eviction petition had been filed by the present respondents under Section 14 of the .
H.P. Urban Rent Control Act, 1987 i.e Rent Petition No.4-2 of 2013, titled Sanjay Sood and another vs. Bhag Dei Rawat and another .The said rent petition had been filed against the present petitioners and one Ajay Rawat. The present petitioners and Ajay Rawat are the legal heirs of the original tenant, one late Bhag Singh Rawat, who had been inducted as a tenant in the tenanted premises in the year, 1950. He is stated to have expired in the year, 2003.
4. The rent petition, in the case at hand, was instituted on 28.02.2013.
The rent petition was allowed vide judgment dated 30.10.2020. Perusal of the cause title of the judgment passed by the Rent Controller, Court No.1, Shimla, in the rent petition filed by the present respondents, reflects that the names of present two petitioners are mentioned and conspicuous by absence is the name of Ajay Rawat.
5. Being aggrieved by the order of eviction passed on 30.10.2020 in the rent petition filed by the present respondents before the Rent Controller, Court No.1, Shimla, the present petitioners preferred an appeal before the Appellate Authority (II), Shimla.
6. In the appeal so preferred, the present respondents moved an application under Sections 151 & 152 of the Civil Procedure Code. In the application so filed, it was categorically stated, therein, that the rent petition had been filed by the present respondents against Bhag Dei Rawat, Ajay Rawat and Sanjay Rawat. Inadvertently, while passing the ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 3 ( 2024:HHC:5160 ) eviction order, name of Ajay Rawat had been omitted by the Rent Controller. Thus, according to the respondents, there was a typographical .
mistake, while typing the eviction order passed by the Rent Controller.
The same, therefore, necessitated filing of the application for correction in the array of the respondents in the eviction order dated 30.10.2020, passed in Rent Petition No.4-2 of 2013, titled Sanjay Sood and another vs. Bhag Dei Rawat and another.
7. The aforesaid application filed for rectification of the typographical error was contested by the present petitioners.
r According to the petitioners, the eviction order had only been passed against Bhag Dei and Sanjay Rawat. As per the petitioners the application filed for rectification of the typographical error had been filed at a belated stage, when parties stood served in the appeal. The petitioners wanted the application to be dismissed.
8. Vide impugned order dated 31.08.2022 the First Appellate Court, after perusing the record, came to the conclusion that the rent petition filed by the respondents had been filed against the present two petitioners and Ajay Rawat. Therefore, according to the First Appellate Court, missing out of the name of Ajay Rawat from the array of the respondents in the impugned order of eviction dated 30.10.2020 seemed to be a typographical/clerical error. In view thereof, the matter was remanded back to the Rent Controller for the limited purpose of considering and deciding the application filed under Sections 151 and 152 of the Civil ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 4 ( 2024:HHC:5160 ) Procedure Code by the present respondents for rectification in the array of the respondents in the eviction order dated 30.10.2020.
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9. Aggrieved by the aforesaid impugned order dated 31.08.2022, the present petition has been preferred. According to the petitioners, the order of remand dated 31.08.2022, whereby, the First Appellate Court directed the Rent Controller to consider and decide the application filed for rectification of memo of parties, is illegal. Besides as per the petitioners the application filed under Sections 151 and 152 of the Civil Procedure Code for correction of memo of parties could not have been filed in the First Appellate Court.
10. Other than the aforesaid, according to the petitioners, Ajay Rawat was not a party in the appeal and, hence, he has not been summoned in the application filed for rectification under Sections 151 & 152 of the Civil Procedure Code, therefore, on this count, the order under challenge was bad. No other point has been urged for the consideration of this court in the present petition.
11. Per contra the respondents contend that the impugned order is legal in terms of the parameters laid down in Section 152 C.P.C. Other than the aforesaid as per the respondents since the appeal against the eviction order had not been decided therefore the rent controller has the jurisdiction to decide the application in question. Besides in remanding the matter for consideration and a decision on the application under section 152 C.P.C no prejudice had been caused to Ajay Rawat. Moreover as per the respondents no case for interference under 227 of the Constitution of ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 5 ( 2024:HHC:5160 ) India had been made out. Hence the present petition merits dismissal with exemplary costs.
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12. Section 152 of the Civil Procedure Code is being reproduced herein below for ready reference:-
"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.
13. Section 152 of Civil Procedure Code is based on two important principles:- (I) The act of the Court shall prejudice no one ( Actus Curiae Neminem Gravabit); (ii) It is the duty of all Courts that the Courts records represent the correct state of affairs.
14. A clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. The rent petition filed by the respondents in the case at hand had been filed against the present two petitioners and Ajay Rawat. The order of eviction dated 30.10.2020 passed by the rent controller on a meaningful reading of the same reflects that it appears to have been passed against the present two petitioners and Ajay Rawat.
15. Missing out of the name of Ajay Rawat from the array of the respondents in the order of eviction dated 30.10.2020 appears to be an accidental slip or omission. An error due to careless mistake on the part of ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 6 ( 2024:HHC:5160 ) the Court. As whatever was intended by the court while passing the order of eviction dated 30.10.2020 seems not to have been properly reflected .
therein, and hence permitting the accidental slip or omission in the case at hand to continue would be destructive to the principle of advancing the cause of justice.
16. Other than the aforesaid the mistake in the case at hand appears to be an un-intentional/inadvertent mistake of the Court which shall cause prejudice to the respondents and hence the same needs to be considered and appropriately dealt with. It seems that no new arguments or re-
arguments on merits are required for correcting such rectification of mistake in the case at hand.
17. Before remanding the application under Sections 151,152 C.P.C the appellate Court had legally satisfied itself and arrived at a valid finding that the order of eviction dated 30.10.2020 omits something which was intended to be otherwise.
18. In the aforesaid context with respect to section 152 C.P.C , it would be relevant to refer to decision of the Hon'ble Supreme Court in Jayalakshmi Coelho vs. Oswald Joseph Coelho, 2001 (4) SCC, 181.
The relevant extract of the judgment is being reproduced herein below:-
"13. So far legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 7 ( 2024:HHC:5160 ) passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases .
on the point may be made: The basis of the provision under Section 152 C.P.C. is found on the maxim Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man (Jenk Cent-
118) as observed in a case reported in AIR 1981 Guwahati 41, The Assam Tea Corporation Ltd. versus Narayan Singh and another.
Hence, an unintentional mistake of the Court which may prejudice cause of any party must be rectified. In another case reported in AIR 1962 S.C. 633 I.L. Janakirama Iyer and others etc. etc. versus P.M. Nilakanta Iyer it was found that by mistake word net profit was written in the decree in place of mesne profit. This mistake was found to be clear by looking to the earlier part of the judgment. The mistake was held to be inadvertent. In Bhikhi Lal and others versus Tribeni and others AIR 1965 S.C. 1935 it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in AIR 1966 S.C. 1047 Master Construction Co. (p) Ltd. versus State of Orissa and another it has been observed that arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake. In a case reported in (1999) 3 S.C.C. 500 Dwarakadas Versus State of M.P. and Another this Court has held that the correction in the order or decree should be of the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial court had not ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 8 ( 2024:HHC:5160 ) granted the interest pendente lite though such a prayer was made in the plaint but on an application moved under Section 152 C.P.C. the interest pendente lite was awarded by correcting the judgment .
and the decree on the ground that non-awarding of the interest pendente lite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152 C.P.C. by the Courts beyond its scope has been deprecated. While taking the above view this Court had approved the judgment of the Madras High Court in Thirugnanavalli Ammal versus P. Venugopala Pillai AIR 1940 Madras 29 and relied on Maharaj Puttu Lal versus Sripal Singh reported in AIR 1937 Oudh 191: ILR 12 Lucknow 759. Similar view is found to have been taken by this Court in a case reported in (1996) 11 S.C.C. 528 State of Bihar and another versus Nilmani Sahu and another where the Court in the guise of arithmetical mistake on re-consideration of the matter came to a fresh conclusion as to the number of trees and the valuations thereof in the matter which had already been finally decided. Similarly in the case of Bai Shakriben (dead) By Natwar Melsingh and others versus Special Land Acquisition Officer and another reported in (1996) 4 S.C.C. 533 this Court found omission of award of additional amount under Section 23 (1-A), enhanced interest under Section 28 and solatium etc. could not be treated as clerical or arithmetical error in the order. The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law.
14. As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 C.P.C. may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits some thing which was intended to be otherwise that is to say ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 9 ( 2024:HHC:5160 ) while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to .
clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed.. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Courts inherent powers as contained under Section 152 C.P.C. It is to be confined to something initially intended but left out or added against such intention."
19. In this respect reference can also be made to the decision of the Hon'ble Supreme Court in Master Construction Co. (P) Ltd. vs. State of Orissa and another, AIR 1966 SCC 1047 (V 53 C 204) . From the detailed discussion made herein above wherein the aforesaid legal parameters have been duly considered it is clear that the order of remand, i.e, impugned order does not suffer from any illegality.
20. Other than the aforesaid, a bare perusal of Section 152 reflects that the expression used there is, "either on its own motion". The same reflects the legislative concern to remind the Court of its duty to do the needful when the situation warrants so, even if there is no application filed for correction. Section 152 permits the same to be done "at any time".
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21. In the case at hand, the order of eviction dated 30.10.2020 was under challenge before the First Appellate Court. The appeal, on the date .
on which the application under Sections 151 and 152 of the Civil Procedure Code was filed, was pending adjudication.
22. In the aforesaid facts and attending circumstances of the case, the power of the Rent Controller to correct/rectify the typographical error, which had crept in its order of eviction dated 30.10.2020, had not come to an end. The order of eviction dated 30.10.2020 passed by the Rent Controller had not merged into any final order passed by the First Appellate Court. The same was still pending adjudication. Therefore, on this count, there is no error on the part of the First Appellate Court in remanding the application for rectification to be considered and decided by the Rent Controller. In this respect, reference can be made to the decision reported as Bachan vs. Raghunath and others, AIR 1926, Allahabad 304 (1).
23. Since the application for rectification has been remanded to the Rent Controller to be considered and decided, therefore, the First Appellate Court has not passed any order affecting Ajay Rawat. The said individual has not been condemned un-heard. The impugned order cannot be faulted on this account.
24. Article 227 of the Constitution of India reads as under:-
"227. Power of superintendence over all courts by the High Court.
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.::: Downloaded on - 15/07/2024 20:30:42 :::CIS 11
( 2024:HHC:5160 ) (2) Without prejudice to the generality of the foregoing provisions, the High Court may--
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(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
25. The scope of jurisdiction of High Court under Article 227 of the Constitution has been expounded by the Hon'ble Supreme Court as under:
"(i) In Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524, it has been held as under:-
"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 12 ( 2024:HHC:5160 ) to have passed the order or to correct errors of law in the decision."
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(iii) In Garment Craft vs. Prakash Chand Goel, (2022)4 SCC 181, it has been held as under:-
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order 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 conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v.
Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 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."
26. Thus, from the above stated exposition of law, it is clear that this Court has restrictive and limited jurisdiction to interfere under Article 227 of the Constitution of India, except to set right the grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice.
27. In the case at hand, I am of the considered view that the petitioners have failed to point out any grave dereliction of duty and flagrant violation of fundamental principles of law or justice, hence the instant petition must ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 13 ( 2024:HHC:5160 ) fail. The error sought to be rectified does not touch the root of the merit of the matter.
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28. Now, adverting to the facts of the instant case, I have no hesitation to conclude that the very purpose of filing of the present petition is to delay the proceedings because admittedly the premises in question consists of one shop in the ground floor and one residential room, kitchen, bathroom and latrine in the top floor of the building No.19, Tilaknagar, Boileauganj, Shimla and the petitioners have tried to turn this litigation into fruitful industry and this obviously cannot be permitted by this Court; and rather this practice has been seriously deprecated by the Hon'ble Supreme Court in South Eastern Coalfields Limited vs. State of M.P. and others (2003) 8 SCC 648, wherein it was held as under:-
"28. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation."::: Downloaded on - 15/07/2024 20:30:42 :::CIS 14
( 2024:HHC:5160 )
29. It is, therefore, the duty of this Court to neutralize any unjust enrichment and undeserved gain made by the litigants only on account of .
keeping the litigation alive. In Indian Council for Enviro-Legal-Action vs. Union of India and others (2011) 8 SCC 161, it is noticed that conduct of the parties is to be taken into consideration and it was held as follows:
"223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the Court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the Court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of Courts."
30. From the aforesaid discussions, it is evidently clear that this petition not only sans merit, but the intent behind filing this petition is also not bona ::: Downloaded on - 15/07/2024 20:30:42 :::CIS 15 ( 2024:HHC:5160 ) fide as the only endeavor of the petitioners appears to prolong the litigation so as to enable them to reap the benefits from the demised premises in .
their occupation, thereby, convert this litigation into a fruitful industry.
31. Accordingly, this petition is dismissed with costs of Rs.50,000/ to be paid to the respondents before 9th August 2024. The parties are directed to appear before the Rent Controller, Court No.1, Shimla, on 9 th August 2024. The Rent Controller, Court No.1, while considering and deciding the application under section 152 C.P.C must keep in mind the position of law that proceedings under Section 152 of the Code of Civil Procedure are summary in nature. The same be decided as expeditiously as possible subject to the convenience of the Rent Controller, Court No.1.
32. All pending miscellaneous application(s), if any, also stand disposed of.
( Bipin Chander Negi)
July 12, 2024 (KS) Judge
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