Punjab-Haryana High Court
Saudagar Singh vs Amir Singh & Ors on 20 March, 2009
Author: K. Kannan
Bench: K. Kannan
Civil Revision No.3848 of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.3848 of 2008 (O&M)
Date of decision: 20.03.2009
2. Civil Revision No.3816 of 2008
Saudagar Singh .............Petitioner
Vs.
Amir Singh & Ors ............Respondents
Present: Mr. P.K. Gupta, Advocate
for the petitioners.
Mr. Arun Palli, Sr. Advocate with
Mr. K.S. Kang, Advocate with
Mr. Divanshu Jain, Advocate
for the respondent No.1.
CORAM: HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see
the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest?Yes
-.-
K.KANNAN, J.
1. The petition for amendment of the pleadings and decree after the disposal of the case was challenged by the plaintiff in revision petitions on the grounds; first by the amendment sought for therein was not merely a clerical mistake and the provisions of Section 152 were not applicable; second, the judgment ultimately decreeing the suit for specific performance was rendered by the High Court while dismissing a Regular Second Appeal filed at the instance of the defendant and therefore, the decree of the trial Court had become merged with the decree of the High Court and any application, if at all, ought to have been filed only before the High Court. Civil Revision No.3848 of 2008 (O&M) -2-
2. The mistake as stated by the decree-holder as having been come about was with reference to a suit for specific performance in respect of 48 kanals of land situate in village Takhni, Tehsil and District, Hoshiarpur. The plaint also contained an alternative prayer for 48 kanals of land out of total land measuring 96 kanals. The total number of khasras were 12 comprising of 8 kanals each. The contention of the plaintiff was that the decree had been granted in respect of 48 kanals being the main relief which represented the 2/3rd shares out of 72 kanals. 2/3rd share which the plaintiff was claiming out of 72 kanals could not have been reckoned without reference to Khasra No.14 comprising of 8 kanals and the absence of reference to the said Khasra number was clearly a mistake. After the trial Court allowed the application on 24.01.2006, it is reported that subsequently the execution petition was also duly filed for execution of sale deed containing the altered description of property and also was taken possession of, after obtaining a registered sale deed. It was at this belated stage that the judgment debtor had filed the civil revision taking up the objections referred to above.
3. Dilating his arguments that the Court lacked inherent jurisdiction to pass an order, in view of the decision having obtained finality only before the High Court and therefore, it was High Court which could have entertained the petition and not the trial Court. He refers to decisions of this Court in Nishabar Singh Vs. Local Gurdwara Committee Manji Sahib, Karnal and another AIR 1986 P&H 402 and Kaka Singh and others Vs. Parkash Chand and others 1980 PLJ 600. Yet another decision was a Bench ruling Civil Revision No.3848 of 2008 (O&M) -3- reported in Hakam Singh Vs. Jaswant Singh and others AIR 1974 P&H 235 which laid down that even a dismissal of appeal in limine by the High Court could amount to a decree and an application for amendment of the decree would lie only to the High Court. He also refers to a decision of the Hon'ble Supreme Court in State of Punjab Vs. Darshan Singh 2003(2) Apex Court Judgments 606 (S.C.) that a correction goes into the merits of the case beyond the scope of Section 152 of CPC could not be permitted.
4. These decisions are countered by reference to judgment in Pritam Singh Vs. P. Didar Singh and another 1976 RLR 586 where a Division Bench of this Court had ruled that language of Section 152 of CPC does not restrict the power of the Court to correct the clerical or accidental error and the powers mentioned in Section 151, 152 and 153 are vested in the Court to advance the cause of justice and to avoid the multiplicity of proceedings. It further held that a mistake in decree could be corrected by the Court under Section 152 CPC, even though it may have been copied from the pleadings of the parties themselves and that it is not even necessary in the correction of the decree to undertake the amendment of pleadings. The Hon'ble Supreme Court held in Jayalakshmi Coelho Vs. Oswald Joseph Coelho (2001) 4 SCC 181 that the principle on which the provisions of Section 152 are based is that mistake by court ought not to cause a party to suffer and whatever be the intention of the court while passing a decree should be clearly reflected therein. The Hon'ble Supreme Court laid down that powers under Section 152 are inherent powers and would be available to all courts and authorities regardless Civil Revision No.3848 of 2008 (O&M) -4- whether Section 152 is applicable to any particular proceedings.
5. A Full Bench of this Court had actually dealt with a situation where the amendment was sought at lower Appellate Court when the matter had earlier been dismissed on merits by the High Court. The decision was Dayawanti Vs. Yadvindra Public School 1996(1) RRR 111 in which Full Bench was answering a reference of the power of a lower court to entertain an application for amendment when the case had been concluded in the higher forum. The mistake in the order of District Court was pointed out by the High Court under two circumstances namely, that the matter had been sent to the District Court for consideration of the amendment petition only by the High Court and under such circumstances, the District Court ought not to have abdicated its powers and found itself as having no power to dispose of the case. Secondly the power to correct accidental error or omission under Section 152 empowers the Court to correct any such mistake at any time either on its own motion or on the application of any of the parties. According to the Full Bench any such order passed by the Court does not amount to passing a decree and such an amendment does not in any way affect the merit of controversy, which has been determined by the Court and so even when such an unamended judgment has been affirmed by the superior court, it does not preclude the Court which passed the decree from correcting such an order. The Full Bench ruled that the doctrine of merger in such a situation was clearly misplaced.
6. The obvious fall out of the decision of the Full Bench is that the principles that could govern amendment of a decree where a Civil Revision No.3848 of 2008 (O&M) -5- decision of lower Court gets merged with an Appellate Court decision would be different from cases where there is merely an amendment through correction of accident slip or omission or an arithmetical mistake found in the decree of the lower court. This mistake could be either by the court or it could result out of a mistake inadvertently originating in the pleadings that gets transported to all other proceedings right from the judgment and decree at the trial Court to the higher forum. A party who applies for amendment in such a case does not really substitute a different property nor does he claim any new right to any property not already in suit. He does what the judgment even otherwise provides but the judgment does not give a proper expression by its inherent error or omission.
7. Applying the above principle what the plaintiff was trying to do was an inclusion of reference to Khasra No.14 of an extent of 8 kanals which was obviously an accidental omission in the plaint and therefore, in the decree and the plaintiff was not introducing the said item which had in any way been rejected in the judgment. The definite case which found favour with all the Courts is the plaintiff's entitlement to secure a decree for 48 kanals and the 48 kanals itself could not have been obtained except with reference to Khasra No.14 of an extent of 8 kanals. The plaintiff was making a correction to conform to what the trial Court expressly found in his favour and affirmed upto the High Court. The decision of the Court below allowing the application for amendment under such circumstances conforms to law.
8. There is another ground as to why the defendant shall not Civil Revision No.3848 of 2008 (O&M) -6- be permitted to canvass against the correctness of the order. As pointed out by learned Senior Counsel for the respondent, the order had been passed even as early as in 2006 and the sale deed has also been made in favour of the plaintiff pursuant to the decree incorporating the amendment as ordered by the Court below. The defendant has taken his own time to challenge it in revision under Article 227. The defendant shall not be permitted to set the clock back to where the mistake arose and impair the right of the plaintiff to enjoy the fruits of the decree that was passed after contest.
9. The civil revision petition is therefore dismissed as being without any substance on merits.
(K. KANNAN) JUDGE March 20, 2009 Pankaj*