_______________________________________________________ vs Sanjay Kumar & Another on 31 August, 2023

[Cites 28, Cited by 0]

Himachal Pradesh High Court

_______________________________________________________ vs Sanjay Kumar & Another on 31 August, 2023

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.760 of 2019 Reserved on 21.08.2023 .

Date of Decision: 31.08.2023 _______________________________________________________ Dalipu .......Petitioner/non-applicant Versus Sanjay Kumar & another ... Respondents/applicants _______________________________________________________ Coram:

of Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1Yes.

For the Petitioner: Mr. Malay Kaushal, Advocate.

For the Respondents:

rt Mr. Ashwani K. Shamra, Senior Advocate with Mr. Ishan Sharma, Advocate.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Being aggrieved and dissatisfied with order dated 19.9.2019, whereby an application bearing CMP No.79/6/2019 titled as Sanjay Kumar and another vs. Dalipu" filed in Civil Appeal No.41 of 1987, whereby prayer made on behalf of the applicants/respondents (hereinafter referred to as the applicants) in an application under Section 152 of CPC for correction of judgment and decree regarding description of land, came to be allowed, petitioner-non-applicant (hereinafter referred to as the non-

applicant) has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India, praying therein to set 1 Whether the reporters of the local papers may be allowed to see the judgment?

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aside aforesaid order and dismiss the application under Section 152 CPC, having been filed by the applicants.

2. For having bird's eye view, facts, which may be relevant .

for adjudication of the case are that the applicants filed an application under Section 152 CPC (Annexure P-1), stating therein that there was a dispute regarding inheritance of the property of late Shri Santu Ram between Ram Ditta and non-applicant Dalipu. Shri Ram Ditta of filed a suit in the learned Sub Judge 1st Class, Ghumarwin, but same was dismissed on 27.02.1987.

3. rt Being aggrieved and dissatisfied with aforesaid judgment and decree dated 27.02.1987, passed by learned Sub Judge 1st Class, Ghumarwin, District Bilaspur, H.P., Shri Ram Ditta filed an appeal in the Court of learned District Judge, Bilaspur, H.P., but before the appeal could be heard and decided on its own merit, parties entered into the compromise. In terms of the settlement arrived interse parties, Patwari Halqua went to the spot in presence of both the parties on 20.01.1995 as per order dated 09.11.1994 passed by learned District Judge, whereby suit land measuring 7 bighas 10 biswas came to be divided in two equal portions. Patwari concerned prepared tatima, wherein land depicted by Khasra No. 393/1/1, measuring 3 bighas 15 biswas was given to Ram Ditta and land described with Khasra No.393/1/2, measuring 3 bighas 15 ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 3 biswas fell in the share of non-applicant Dalipu. Learned District Judge on the basis of aforesaid compromise as well as Tatima prepared on the spot, recorded the statements of the parties on .

28.01.1995 and passed compromise decree. Respondents-applicants pleaded in the application that due to clerical mistake, Khasra No.393/1/1 was given to Dalipu and Khasra No.393/1/2 was given to Ram Ditta, whereas in the Tatima name of Ram Ditta was shown in of front of Khasra No.393/1/1 and name of Dalipu stands mentioned in front of Khasra No.393/1/2. While passing final order, Khasra No. rt 393/1/2 came to be shown in the ownership and possession of Dalipu and Ram Ditta but due to clerical mistake no order regarding Khasra No.393/1/1 ever came to be recorded in the compromise decree. Ram Ditta expired and his sons succeeded the property of Ram Ditta.

Subsequently, the sons of Ram Ditta sold the land to the applicants vide sale deed dated 08.03.2001 and on the basis of sale deed mutation was also sanctioned for land comprised in Khasra No.393/1/2. In the aforesaid background, respondents-applicants who were subsequent purchaser filed an application under Section 152 CPC, praying therein for making necessary correction in the judgment and decree as per Tatima Ex. CA.

4. Aforesaid claim put forth by the respondents/applicants came to be refuted by the non-applicant/petitioner on the ground of ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 4 limitation. Non-applicant-petitioner stated in the reply that application has been filed after inordinate delay of 18 years and as such, same is not maintainable. While admitting para-1 of the application, non-

applicant/petitioner though mentioned about his previous litigation with Ram Ditta in subsequent paras, but specifically stated that since his counsel was not present, counsel for the other party procured his signature on certain documents and no compromise ever came to be of effected between the parties at any time. He also denied his signature on the statement made before the learned District Judge. He claimed rt that the applicants/respondents are not in possession of any portion of the land, even Ram Ditta's sons never came to be in possession of the land in dispute, so present application deserves dismissal.

5. Learned District Judge after having examined and perused the record allowed the application filed for correction, thereby directing for necessary correction with red pen in the original judgment dated 28.01.1995 regarding Khasra No.393/1/2 by changing the same to 393/1/1 on page 2 line 1. Similar learned District Judge also ordered to make correction in the decree in line No.7 by changing Khasra No.393/1/2 into Khasra No. 393/1/1, correction in line No.6 in the statement recorded on 28.01.1995 by changing Khasra No.393/1/1 into Khasra No.393/1/2 and also by changing Khasra number in line No.8 from 393/1/2 to 393/1/1. In the aforesaid ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 5 background, non-applicant/petitioner Dalipu has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order and dismiss the application filed under section 152 .

C.P.C.

6. Mr. Malay Kaushal, learned counsel representing the non-applicant/petitioner, vehemently argued that order impugned in the instant proceedings is not sustainable in the eye of law because of same is totally contrary to the provision of law. While making this Court peruse Section 152 CPC, Mr. Kaushal, argued that Section 152 rt CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission, but exercise of this power does not contemplate of passing effective judicial orders after the judgment, decree or order. He submitted that power under Section 152 CPC is neither to be equated with the power of review nor can be said to be akin to review and as such, Court below has fallen in grave error while ordering correction of Khasra numbers as well as statements made by parties at the time of compromise. Mr. Kaushal, further submitted that no plausible explanation ever came to be rendered on record qua delay of 18 years in filing the application at hand and as such, Court below otherwise ought to have dismissed the application on the ground of delay and laches. In support of his aforesaid ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 6 submissions, he placed reliance upon the judgment passed by Hon'ble Apex Court in M/S U.P.S.R.T.C Vs. Imtiaz Hussain,2006(1) SCC 380 and case titled Jayalakshmi Coelho vs Oswald Joseph .

Coelho, 2001(4) SCC 181.

7. While refuting aforesaid submissions made by learned counsel for the petitioner-non-applicant, Mr. Ashwani K. Sharma, learned Senior Counsel representing the applicants/respondents, of supported the impugned order. He submitted that powers under Section 152 CPC are inherent powers and would be available to all rt the Courts and authorities applicable to any particular proceedings or not. He submitted that clerical, arithmetical errors or accidental slip, if any, while passing order, sought to be corrected, can be corrected by the Court while exercising power under Section 152 CPC. While fairly considering that there should not be re-consideration of merits of the matter, Mr. Sharma, learned Senior counsel argued that in the case at hand bare perusal of compromise arrived interse parties, especially tatima prepared by Patwari Halqua pursuant to the direction contained in order dated 09.11.1994 passed by learned District Judge clearly suggests that Khasra No.393/1/1, measuring 3 bighas 15 biswas was given to Ram Ditta and land described with Khasra No.393/1/2, measuring 3 bighas 15 biswas was given to Dalipu, but due to clerical mistake, Khasra No.393/1/1 came to be recorded in the name of ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 7 Dalipu and Khasra No.393/1/2 in the name of Ram Ditta, whereas in the Tatima, name of Ram Ditta stands mentioned in front of Khasra No.393/1/1 and name of Dalipu has been mentioned in front of .

Khasra No.393/1/2. He submitted that in final order, Khasra No. 393/1/2 has been shown in the ownership and possession of Dalipu and Ram Ditta, but due to clerical mistake, there is/was no order regarding Khasra No.393/1/1. He submitted that since there is no of dispute interse parties that both the parties are entitled to half share each in the property i.e 7 bighas 10 biswas, which comes out to be 3 rt bighas 15 biswas each, respondents-applicants, who had purchased land from Ram Ditta, are entitled to be given one half shares in the property and as such, Court below rightly allowed the application for correction. He submitted that by way of correction, learned District Judge nowhere modified, altered or added to the terms of its original judgment, decree or order, rather clerical mistake occurred at the time of passing final order, whereby Khasra numbers were wrongly recorded have been ordered to be corrected by court below while exercising power under Section 152 CPC. Lastly, Mr. Sharma, argued that otherwise also petition filed under Section 227 of the Constitution of India is not maintainable, rather being aggrieved, if any, of the impugned order, non-applicant/petitioner ought to have filed civil revision petition under Section 115 of the CPC. Mr. Sharma, ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 8 submitted that since precise case of the no-applicant/petitioner is that learned District Judge have acted in the exercise of its jurisdiction illegally or with material irregularity while passing impugned order, .

same could be laid challenge by way of revision filed under Section 115 of CPC, but definitely not under Article 227 of the Constitution of India.

8. I have heard learned counsel for the parties and gone of through the record carefully.

9. Since specific question of maintainability has been raised rt on behalf of the applicants/respondents, this Court at first instance deems it fit to decide the question of maintainability of the petition at hand. Precisely, the grouse of the non-applicant petitioner as has been highlighted in the petition and further canvassed by Mr. Malay Kaushal, learned counsel for the petitioner, is that learned District Judge while passing impugned order has not only exercised its jurisdiction not vested in it by law, but has further acted in the exercise of its jurisdiction illegally or with material irregularity. As per learned counsel representing the non-applicant/ petitioner, learned District Judge had no jurisdiction to order correction of Khasra numbers recorded in final order recorded by learned District Judge on 28.01.1995 on the basis of compromise. He further submitted that statements made by parties before the then learned District Judge ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 9 alongwith tatima Ex.CA itself suggest that land comprised in Khasra No. 393/1/1 was intended to be given to non-applicant Dalipu and there was no finding with regard to ownership of Khasra No.393/1/1 .

and as such, prayer made by the applicant/respondent, who purchased land from the legal heirs of Ram Ditta, regarding correction of Khasra No.393/1/2 by changing the same to 393/1/1 and changing Khasra No.393/1/2 into Khasra No. 393/1/1, ought not have of been allowed by learned District Judge while exercising power under Section 152 CPC, which only enable courts to order correction of rt clerical or arithmetical mistake in the judgments, decrees, orders and errors arising therein from accidental slip or omission. He submitted that wrong mention, if any, of khasra numbers in the order sought to be corrected as well as statements made by the parties cannot be said to be arithmetical misstate or error arising therein from accidental slip or omission and as such, learned District Judge has not only exercised its jurisdiction not vested in it by law but has further acted in the exercise of its jurisdiction illegally or with material irregularity. He submitted that since in the case at hand finding recorded by the court is so perverse that no reasonable person, could possibly come to a such conclusion arrived at by the Court below, petition having been filed under Article 227 of the Constitution of India is maintainable.

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10. Before ascertaining the correctness and genuineness of the revival submissions made by learned counsel for the parties, it would be apt to take note of the judgment passed by Hon'ble Apex .

Court in AIR 1964 Supreme Court 497, titled as Major S. S. Khanna vs Brig. F.J. Dillon. In the aforesaid judgment, Hon'ble Apex Court held that power of the High Court under Section 115 is "exercisable in respect of "any case which has been decided". The expression "case"

of is not defined in the Code, nor in the General Clauses Act, it includes a proceeding in a Civil Court in which the jurisdiction of the Court is rt invoked for the determination of some claim or right legally enforceable. The meaning of the expression "case" must be sought in the nature of the jurisdiction conferred by s. 115, and the purpose for which the High Courts were invested with it. In the aforesaid judgment Hon'ble Apex Court has held that to interpret the expression "case" as an entire proceeding only and' not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in perpetration of gross injustice. The expression "case" includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone. If once it is ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 11 accepted that the expression "case" includes a part of a case, there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether appeal .

lies from the ultimate decree or order passed in the suit. While interpreting scope of Section 115 CPC, Hon, ble Apex Court held that High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no of appeal lies thereto, and if such, subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to rt exercise of its jurisdiction so vested, or to have acted in the exercise of its Jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit".

11. At this stage, it would be profitable to reproduce paras No. 4 to 16 and 29 to 33 of aforesaid judgment hereinbelow:-

"4. Out of the issues raised by the Trial Court in the suit the third, issue viz:

"Whether this suit is not maintainable and the plaintiff is not entitled to institute this suit, as alleged in paras Nos. 15, 16, 17, 18 of the written statement?"

was at the request of Khanna tried as a preliminary issue, and it was held that the suit being by a partner against another partner of a dissolved firm which was in the process of winding up, and in respect of advances from the partnership assets, was not maintainable.

5. The High Court of Punjab in exercise of its revisional jurisdic- tion set aside the order, and directed that the suit be heard and disposed of according to law.

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6. With special leave this appeal is preferred by Khanna.

7. The jurisdiction of the High Court to set aside the order in exercise of the power under s. 115 Code of Civil Procedure is challenged by Khanna on three grounds :-

.

i) that the order did not amount to "a case which has been decided" within the meaning of s. 115 Code of Civil Procedure;

(ii)that the decree which may be passed in the suit being subject to appeal to the High Court the power of the High Court was by the express terms of s. 115 excluded ; and

(iii) that the order did not fall within any of the three clauses (a), (b) and (c) of s.115.

The validity of the argument turns upon the true meaning of of s. 115 Code of Civil Procedure, which provides :

"The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subor- dinate Court appears-

rt (a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such or-

der in the case as it thinks fit."

The section consists of two parts : the first, prescribes the conditions in which jurisdiction of the High Court arises i.e. there is a case decided by a subordinate Court in which no appeal lies to the High Court ; the second, sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is "exercisable in respect of "any case which has been decided". The expression "case" is not defined in the Code, nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a Civil Court : Bala- krishna Udayar v. Vasudeva Aiyar(1) ; it includes a proceeding in a Civil Court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. On the question whether an order of a Court which does not finally dispose of the suit or proceeding amount to a "case which has been decided", there has arisen a serious conflict of opinion in the High Courts in India, and the question has not been directly considered by this Court. One view which is accepted by a majority of the High Courts is that the expression "case" includes an interlocutory proceeding relating to the rights and obligations of the parties, and the expression "record of any case" includes so much of the proceeding as relates to the order disposing of the interlocutory proceeding. The High Court has therefore power to rectify an order of a Subordinate Court at any stage: of a suit or proceeding even if there be another remedy open to the party aggrieved i.e. by reserving his right to file an appeal against the ultimate decision, and making the illegality in the order a ground of that appeal. The other view is that the expression "case' ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 13 does not include an issue or a part of a suit or proceeding and therefore the order on an issue or a part a suit or proceeding is not a "case which has been decided", and the High Court has no power in exercise of its re- visional jurisdiction, to correct an error in an interlocutory order.

8.An analysis of the cases decided by the High Courts their number is legion-would serve no useful purpose. In every High Court from time to time opinion has fluctuated. The meaning of the expression "case" must be sought in the nature of the jurisdiction conferred by s. 115, and the purpose for which the High Courts were invested with it.

9. By their constitution the High Courts of Calcutta, Madras and Bombay were within Presidency towns, as successors to the of respective Supreme Courts competent to issue writs of certiorari, mandamus and 'prohibition. This was so because the jurisdiction of the Courts of King's Bench and Chancery in England to issue those writs was conferred upon the three Supreme Courts. But exercise of this jurisdiction which was established by Charters of the British Crown, was (except as to British subjects and servants of the rt Company) restricted. The jurisdiction did not ordinarily extend to the territories beyond the Presidency towns : Ryots of Garabandho v. Zamindar of Parlakimedi(1). The appellate Courts, called the Sudder Adalats, which exercised appellate powers over the East India Company's Courts in the mofussil of the three Presidencies were not the Courts of the King of England : they were the creatures of Regulations, and did not administer the law of England. These Courts had no power to issue any of the prerogative writs-except probably the writ of habeas corpus. But the power to superintend the exercise of jurisdiction by the mofussil Courts was found essential to the proper functioning of the Sudder Courts, and the Sudder Courts were accordingly invested by express legislative enactments with authority to rectify orders of the mofussil Courts subordinate thereto. Bombay Regulation 11 of 1827 of Ch. 1 s. 5(2) authorised the Sudder Court at Bombay to call for the proceedings of any subordinate civil court and to issue such orders thereon as, the case' may require. No Regulation was however enacted elsewhere conferring revisional jurisdiction upon the Supreme Court or the Sudder Court in respect of adjudication by subordinate courts. The Code of 1859 contained no provision for the exercise of revisional powers by the Sudder Courts, but by s. 35 of Act XXIII of 1861 the Sudder Courts were invested with the power call for the record of any case decided in appeal by the subordinate courts and in which no further appeal lay, when it appeared, that a subordinate court had exercised jurisdiction not vested in it by law. With the set tin' up of the High Courts in the Presidency 'towns of:, Calcutta, Madras and Bombay power of superintendence was conferred by s. 15 by the Charter Act (24 & 25 Vict. Ch. 104) upon the High Courts over subordinate Courts. By s. 622 of the Code of 1877 revisional jurisdiction of. the High Court was defined, and made exercisable in the conditions set out in cls.

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(a) & (b) of the present s. 115. Clause (c) was added by the Amending Act XII of 1879. This jurisdiction was exercisable suo motu as well as on application to the High Court. It was conferred in the widest terms. The jurisdiction was supervisory and visitorial and was complementary to the powers conferred by cl. 15 of the Charter Act, 1861, and the subsequent Constitution Acts, and was .

conceived in the interest of maintaining effective control over Courts subordinate to the High Courts. It had to be so conferred because in the historical evolution of the powers of the diverse High Courts supervisory jurisdiction to issue writs of certiorari, and prohibition could not be effectively made in respect of the mofussil Courts.

10.The necessity arising out of the peculiar circumstances to invest the High Courts with the powers to rectify errors committed by subordinate Courts in the exercise of their jurisdiction and the of consequent investiture of power are indicative of the extent of that power. The power being one of superintendence and visitorial and vested because the supervisory jurisdiction to issue writs of certiorari' and prohibition over subordinate Courts in the mofussil could not be exercised, it would be reasonable to hold that it was intended in the absence of any overriding reasons disclosed by the rt statute (and none such appears on an examination of the statute) to be analogous- with the jurisdiction to issue the high prerogative writs and the power of supervision under the Charter Act and its successor provisions in the Constitution Acts.

11. The expression "case" is a word of comprehensive import : it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression "case" as an entire proceeding only and' not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory ju- risdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in perpetration of gross injustice.

12. It may be observed that the majority view of the High Court of Allahabad in Buddhulal v. Mewa Ram(1) founded upon the supposition that even though the word "case" has a wide signification the jurisdiction of the High Court can only be invoked from an order in a suit, where the suit and not a part of it is decided, proceeded upon the fallacy that because the expression "case" includes a suit, in defining the limits of the jurisdiction conferred upon the High Court the expression "suit" should be substituted in the section when the order sought to be revised is an order passed in a suit. The expression "case" includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone.

13. That is not to say that the High Court is obliged to exercise its jurisdiction when a case is decided by a subordinate Court and the ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 15 'conditions in cls. (a), (b) or(c) are satisfied. Exercise of the jurisdiction is discre tionary : the High Court is not bound to interfere merely because the conditions are satisfied. The interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal from the ultimate order of decree in the proceeding or by a suit, and the general equities of .

the case being served by the order made are all matters to be taken into account in considering whether the High Court, even in cases where the conditions which attract the jurisdiction, exist, should exercise its jurisdiction.

14. The Subordinate Judge in the present case held by an interlocutory order that the suit filed by Dillon for recovery of the amounts advanced to Khanna was not maintainable. That was manifestly a decision having a direct bearing on the rights of Dillon of to a decree for recovery of the loan alleged to have been advanced by him, which he says Khanna agreed to repay, and if the expression "case" includes a part of the case, the order of the Subordinate Judge must be regarded as a "case which has been decided".

15. The next question which falls to be determined is whether the High Court has power to set- aside an order which does not finally dispose of the suit, and when from the decree or from the final order passed in the proceeding an appeal is competent. Relying upon the 'Use of the expression "in which no appeal lies thereto" in s. 115 Code of Civil Procedure it was urged that the High Courts jurisdiction to entertain a petition in revision could be exercised only if no appeal lay from the final order passed in the proceeding. But once it is granted that the expression "case" includes a part of a case, there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether appeal lies from the ultimate decree or order passed in the suit. Any other view would impute to the Legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Courts is excluded for reasons of public policy. Nor is the expression "in which no appeal lies thereto"

susceptible of the interpretation that it excludes the exercise of the revisional jurisdiction when an appeal may be competent from the final order. The use of the word "in" is not intended to distinguish orders passed in proceedings not subject to appeal from the final adjudication from those from which no appeal lies. If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no Power to exercise its revisional jurisdiction, but where' the decision, itself it not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded. The judgment of the Rajasthan High Court in Purohit Swarupnain v. Gopinath and another(1) on which strong reliance was placed by the appellant does not, in our judgment, correctly interpret s. 115 of the Code. In that case the ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 16 Court relying upon an earlier judgment of a Division Bench Pyarchand and others v. Dungar Singh(2) held that "where it is open to a party to raise a ground of appeal under s. 105 of the Code from the final decree or order, with respect to any order which has been passed during the pendency of a suit, it should be held that an appeal in that case lies to the High Court within the meaning of the .

term 'in which no appeal lies thereto' appearing in s. 115 Civil Procedure Code", and the exercise of revisional jurisdiction of the High Court is excluded. 'It was observed in that case that the use of the word "in' instead of the word "from" in s. 115 Code of Civil Procedure indicated an intention that if the order in question was one which could come for consideration before the High Court in any form in an appeal that may reach the High Court in the suit or proceeding in which the order was passed, the High Court has no revisional jurisdiction. But the argument is wholly inconclusive, if it be granted that the word cc " includes a part of case. Again on the of footing case that the use of the expression "in" and not "from"

indicates some discernible legislative intent, it must be remembered that the word "in" has several meanings a preposition and as an adverb. The use of the preposition "from"-in the sense of a source or point of commencement or distinction-would not in the context of rt the clause, yield to greater clarity, because the relation established thereby would be between "case" and appeal, and not "decided" and appeal. If the use of the expression "in" is inappropriate to express the meaning that' the orders not appealable to the High Court were subject to the revisional jurisdiction, the substitution of "from" for "in" does not conduce to greater, lucidity.

16. In considering whether the revisional jurisdiction of the High Court was intended to cover decisions, which did not dispose of the suit or proceeding, possibility of delay arising in the disposal of some cases because of investigation commenced by the High Court is not, in our judgment, a sound ground for presuming, that, the jurisdiction was to be limited to those matters which were finally disposed of.

29. The power which this Section confers is clearly of the nature of a proceeding on a writ of Certiorari'. But it differs from that power in many ways. Certiorari has many different forms which may be classified as follows (1) Certiorari' to re move for trial ;

(2) Certiorari for judgment or indictment;

(3) Certiorari to quash;

(4) Certiorari' for purposes of execution or coercive process;

(5) Certiorari to remove orders etc., on case stated;

(6) Certiorari' to remove Depositions for Bail; and ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 17 (7) Certiorari to remove Record for use as evidence.

30. In English Common Law Certiorari to quash issues in a com- pleted case and the Common Law is now crystallised by Order 58 of the Rules of the Supreme Court. In America Certiorari has been differently understood and is a means of review. That arises from .

the Special Appellate jurisdiction of the United States Supreme Court created by Statute (See U.S.C.A. Tit. 28, para 1254) and from the fact that the Supreme Court must of necessity exercise this power as a part of its appellate jurisdiction.

31. This supervisory power of the High Court under the English Law is not to be confused with visitorial power of the High Court exercis- able by the writ of Mandamus. Mandamus issues to Courts only when justice is delayed and is a command to them to hear and dis-

of pose of the case. There is also the writ of Prohibition which issues to a Court to stop it from taking upon itself to examine a cause and to decide it without legal authority. The writ of Mandamus was evolved much later than the writ of Certiorari' and by Mandamus the Courts were not directed to give any particular judgment but merely to give Judgment. An erroneous judgment could be set aside on rt appeal or quashed by Certiorari'. Prohibition lay to prevent assump- tion of jurisdiction but only before an order was passed. Certiorari' to quash lay in a completed case on a question of jurisdiction and an error of law apparent on the face of the record. As Lord Sumner ob- served in Rex v. Nat Bell Liquors Ltd., 1922- 2 AC 128 at p. 156.

"Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points; one is the area of the inferior jurisdiction and the qualifications and con- ditions of its exercise; the other is the observance of the law in the course of its exercise".

32. From the above discussion it is apparent that interference with a case before an inferior Court by Prerogative writs could take place under the English Law:

(a) by stopping proceedings before the case was decided by a writ of Prohibition;

(b) ordering the trial of a case and the delivery of judgment by Man- damus.

(c) quashing an order in a completed case for want of jurisdiction or for an error of law apparent on the face of the record.

33. The power given by s. 115 of the Code is clearly limited to the keeping of the subordinate courts within the bounds of their jurisdic- tion It does not comprehend the power exercisable under the writs of Prohibition or Mandamus. It is also not a full power of Certiorari in as much as it arises only in a case of jurisdiction and not in a case ,of error. It has been ruled by the judicial Committee and also by ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 18 this Court that the section is concerned with jurisdiction and jurisdic- tion alone involving a refusal to exercise jurisdiction where one ex- ists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. Where there is no ques- tion of jurisdiction in this manner the decision cannot be corrected for it has also been ruled that a Court has jurisdiction to ,decide .

wrongly as well as rightly. But once a flaw of jurisdiction is found the High Court need not quash and remit as is the practice in English Law under the writ of Certiorari but pass such order as it thinks fit.

12. No doubt, in the case at hand, there is no provision of appeal for laying challenge to order passed by Court in exercise of power under Section 152 CPC, but now question remains to be of decided whether in such a situation appropriate remedy, if any, would be to file petition under Section 227 of the constitution of India, which rt empowers High Court to exercise its supervisory power over the Courts subordinate to it or appropriate remedy shall be to file revision petition. Provisions Under Section 115 CPC, which clearly provides that High Court may call for the record of any case decided by any Court subordinate to it, if it has reason to believe and presume that subordinate courts have exercised a jurisdiction not vested in it by law, or have failed to exercise of its jurisdiction so vested, or have acted in the exercise of its Jurisdiction illegally or with material irregularity. If the provisions of under Section 115 CPC are read in entirety, it clearly suggests that power of High Court is "exercisable in respect of "any case which has been decided". The expression "case"

is not defined in the Code nor in the General Clauses Act. On the question whether an order of a Court which does not finally dispose of ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 19 the suit or proceeding amount to a "case which has been decided", it has been repeatedly held that expression "case" includes an interlocutory proceeding relating to the rights and obligations of the .

parties, and the expression "record of any case" includes so much of the proceeding as relates to the order disposing of the interlocutory proceeding. In case by passing of interlocutory order, case is decided and there is no remedy to file appeal against that interlocutory order, of appropriate remedy to lay challenge to such order would be civil revision under Section 115 CPC.

13. rt It is not in dispute that while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court does not act as a Court of First Appeal to re-appreciate 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. Power under Article 227 of the Constitution of India is to be exercised where 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 arrived at by the Courts below. Reliance in this regard is placed upon the judgment passed by Hon'ble Apex Court in case titled Garmet Craft v. Prakash Chand Goel, 2022 (4 )SCC 181, wherein it has been held as under:-

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"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 re-appreciate, .

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. 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 of 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.2 rt has observed: (SCC pp. 101-102, para 6) "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."

14. Having carefully perused the aforesaid judgment, this Court finds that High Court would be justified in exercising power under Section 226/227 of the Constitution of India in such like cases where the findings are not based upon the evidence available on ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 21 record or same are so perverse that no reasonable person could possibly come to such a conclusion as has been arrived by the court.

15. The power given by Section 115 of the Code is clearly .

limited to keep the subordinate courts within the bounds of their jurisdiction. It does not comprehend the power exercisable under the writs of Prohibition or Mandamus. It is also not a full power of Certiorari in as much as it arises only in a case of jurisdiction and not of in a case of error. Once a flaw of jurisdiction is found, the High Court while exercising power under Section 115 CPC can correct the order rt passed by the courts subordinate to it. In the case at hand, precise grouse of the non-applicant/petitioner is that learned District Judge while passing order impugned in the instant proceedings have acted in the exercise of its Jurisdiction illegally or with material irregularity and as such, there appears to be merit in the contention of Mr. Sharma, learned Senior counsel representing the applicants/ respondents that petition under Article 227 of the Constitution of India is not maintainable, rather appropriate remedy is to file revision under Section 115 of the CPC.

16. Though, in view of the findings returned hereinabove, this Court is convinced and satisfied that present petition is not maintainable under Article 227 of the Constitution of India but even after having heard learned counsel for the parties on merits vis-à-vis ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 22 reasoning assigned in the impugned order, this Court does not find any illegality and infirmity in the order impugned, rather same appears to have been passed upon proper appreciation of facts as well as law.

17. Admittedly, in the case at hand, perusal of material available on record reveals that dispute regarding inheritance of property of late of Sh. Santu Ram interse Ram Ditta and non-

applicant/petitioner Dalipu came to be resolved on the basis of of compromise effected interse parties in the Court of learned District Judge, whereby suit land measuring 7 bighas 10 biswas was divided rt in two equal portions. On the directions of learned District Judge dated 9.11.1994, Patwari Halqua visited the spot in presence of both the parties on 20.01.1995 and divided the property in two shares, as detailed hereinabove. Patwari prepared the Tatima, wherein land depicted by Khasra No. 393/1/1, measuring 3 bighas 15 biswas was given to Ram Ditta and the land described with Khasra No.393/1/2, measuring 3 bighas 15 biswas was given to Dalipu. Learned District Judge after having recorded the statements of the parties on 28.01.1995 passed compromise decree. However, inadvertently due to clerical misstate Khasra No. No.393/1/1 came to be recorded in the name of non-applicant/petitioner Dalipu and Khasra No.393/1/2 in the name of Ram Ditta, whereas in the Tatima the name of Ram Ditta was mentioned in front of Khasra No.393/1/1 and name of Dalipu was ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 23 mentioned in front of Khasra No.393/1/2, meaning thereby at the time of passing of final compromise decree, Khasra No. 393/1/2 was though ought to have been shown to be given to Ram Ditta, but .

inadvertently same came to be shown in the name of Dalipu, to whom actually as per compromise, Khasra No.393/1/2 was given.

Interestingly, the then learned District Judge though in final order, reflected ownership of both Ram Ditta and Dalipu qua Khasra No. of 393/1/2, but inadvertently due to clerical mistake failed to pass any order with regard to Khasra No.393/1/1, which as per compromise rt was actually given to Ram Ditta. After having arrived at aforesaid compromise sons of Ram Ditta sold the land to respondents/applicants vide sale deed dated 08.03.2001 and on the basis of which, mutation came to be sanctioned for land comprised in Khasra No.393/1/2, whereas as per compromise arrived interse parties, land comprised in khasra No.393/1/1 was intended to be given to Ram Ditta, who further sold the same to applicants/respondents vide sale-deed dated 08.03.2001.

18. Careful perusal of tatima Ex.CA, which is part of the compromise decree reflects just beneath Khasra No.393/1/1 name of Ram Ditta, whereas, name of Dalipu is reflected beneath Khasra No.393/1/2. No doubt, in the statements of the parties recorded by Court below on 09.11.1994 and 28.01.1995, it came to be mentioned ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 24 that Khasra No.393/1/1 has been given to Dalipu and Khasra No. 393/1/2 has been given to Ram Ditta, but while considering the prayer made in the application under Section 152 CPC, non-applicant .

present in person claimed that his Abadi is situated on Khasra No.393/1/2 and not on Khasra No.393/1/1. Respondent-applicant categorically stated before the Court below that in case any part of the house of Dalipu was found on Khasra No.393/1/1 (old) and Khasra of No. 467/393/1 (new) as shown in Tatima Ext.CA, he will not claim any ownership over that house or claim any right on the land underneath rt that house. Needless to say, compromise decree dated 28.01.1995 is based upon Tatima Ex.CA, whereby Patwari Halqua after having visited the spot divided the land in two shares. In tatima, Khasra No.393/1/1 has been shown to be given to Ram Ditta, whereas name of Dalipu non-applicant-petitioner clearly reflects beneath Khasra No.393/1/2. However, as has been recorded hereinabove, court below while recording the statements of the parties erroneously recorded that Khasra No. 393/1/1 has been given to Dalipu and Khasra No. 393/1/2 has been to Ram Ditta. Respondent present in person during the proceedings of the case under Section 152 CPC himself stated that his Abadi situated in Khasra.393/1/2, which khasra number was actually given to him at the time of compromise. Careful perusal of provision of Section 152 CPC suggests that Court can ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 25 order correction of clerical and arithmetical mistake in judgments, decrees, orders or errors arising therein from any accidental slip or omission. Since in the case at hand, on account of accidental slip or .

omission khasra No.393/1/1 wrongly came to be recorded in the name of Dalipu, learned District Judge while exercising power under Section 152 CPC cannot be said to have exceeded his jurisdiction, rather he after having noticed aforesaid glaring mistake that too after of recording statement of non-applicant/petitioner Dalipu in the Court that his Abadi is situated on Khara No.393/1/2 not on Khasra rt No.393/1/1 rightly ordered correction in the original judgment dated 28.01.1995 regarding Khasra No.393/1/2 by changing the same to 393/1/1. No doubt 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.

In the case at hand, error has occurred on account of accidental slip or omission due to careless mistake on the part of the Court.

19. The Omission sought to be corrected, which goes to the merits of the case cannot be definitely corrected or rectified while exercising power under Section 152 CPC, for which appropriate remedy for the aggrieved party, if at all is to file appeal or revision ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 26 before the higher forum or review application before the very forum. Power under Section 152 cannot be pressed into service to correct an omission which is intentional, however erroneous that may .

be, but once it is quite apparent that omission or mistake sought to be corrected is unintentional and has occurred on account of error due careless mistake on the part of the Court, Court is well within its power to correct that mistake/error. Reliance in this regard is placed of upon the judgment rendered by Hon'ble Apex Court in U.P. SRTC vs. Imtiaz Hussain, (2006) 1 Supreme Court Cases 380, wherein it has rt been held as under:-

"6. It is to be noted that there is no similar provision in the Industrial Disputes Act, 1947 (in short the 'Act'). The provision is similar to Section 152 of the Code of Civil Procedure, 1908 (in short the 'CPC').

7. 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 of passing 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 ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 27 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 appeal or revision before the higher 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 Code even after passing of effective orders in the lis pending 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. Similar view was expressed by this Court in Dwaraka Das v. State of Madhya Pradesh and Anr. (1999 (3) SCC 500) and Jayalakshmi Coelho v. Oswald Joseph Coelho (2001 (4) SCC 181).

of

8. The basis of the provision under Section 152 of the Code is founded on the maxim 'actus curiae neminem gravabit' i.e. an act of Court shall prejudice no man. The maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law", said Cresswell J. in Freeman v. rt Tranah (12 C.B.406). An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa (AIR 1966 SC 1047) it was observed that the 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 this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which 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 can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.

9. The maxim of equity, namely, actus curiae neminem gravabit an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey (1987 (4) SCC 398), Gursharan Singh v.

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New Delhi Municipal Committee (1996 (2) SCC 459) and Mohammod Gazi v. State of M.P. and others (2000(4) SCC

342). The principles as applicable to Section 152 CPC are clearly applicable to Section 6(6) of the U.P. Act. In the aforesaid background the Labour Court was not justified in modifying the award as was originally made. The High Court also had not .

considered this aspect and decided the writ petition filed by the present appellant on issues other than this vital issue."

20. Reliance is also placed upon the judgment passed by Hon'ble Apex Court in Jayalakshmi Coelho versus Oswald Joseph Coelho, 2001)4 Supreme Court Cases 181. In the aforesaid judgment of Hon'ble Apex Court has held that mistake from arithmetical or clinical errors or accidental slip in judgment or decree which may prejudice rt the cause of any party, must be rectified, but rectification must be limited to something originally intended to be included and which is erroneously left out or something which has been included contrary to the original intention. As per aforesaid judgment Section 152 does not empower court to have second thoughts on the merits of the matter, nor does it give a litigant the right to improve upon the case. Relevant para Nos. 13 and 14 of the aforesaid judgment are as under:-

" 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 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 ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 29 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 of 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 rt 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 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 ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 30 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 of Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise that is to say 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 rt 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."

21. In the case at hand, learned counsel for the non-

applicant-petitioner has not been able to dispute that one half of the total land, measuring 7 bighas 10 biswas is otherwise required to be given to Ram Ditta, whose sons further sold the same to applicant/respondent. This Court before deciding the case at hand deemed it necessary to summon both the parties to Court. Though on ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 31 two occasions applicants/respondents came present but on one pretext or other non-applicant/petitioner failed to put in appearance, which act of him certainly compels this Court to draw adverse .

inference. Otherwise also, this Court finds that in final order Khasra No.393/1/2 has been shown in the ownership and possession of Ram Ditta and Dalipu and there is no order regarding Khasra No.392/1/1 in compromise decree, meaning thereby if aforesaid of compromise decree is not corrected as per prayer made in the application under Section 152, both Dalipu and Ram Ditta would rt continue to be co-owners qua the land comprised in Khasra No.393/1/2, which is now otherwise being claimed to be exclusively owned by Dalipu. He categorically stated before the Court at time of passing of order that his abadi is situated on khasra No.393/1/2 not Khasra No.393/1/1. Respondent-applicant stated before the court below that in case any part of the house of Dalipu was found on Khasra No.393/1/1 as shown in Tatima Ext.CA, he will not claim any ownership over that house or claim any right on the land underneath that house.

22. Leaving everything aside, this Court finds that at no point of time factum with regard to compromise, if any, arrived interse Dalipu and Ram Ditta ever came to be disputed by non-

applicant/petitioner Dalipu, rather he while admitting para-1 of the ::: Downloaded on - 01/09/2023 20:34:15 :::CIS 32 application fairly admitted factum with regard to his previous litigation with Ram Ditta, however he stated that counsel representing other party procured his signature on certain documents and no such .

compromise was effected between the parties at any time. Though, he denied his signature on the statement made before the learned District Judge, but nowhere categorically disputed factum with regard to compromise arrived interse him as well as Ram Ditta.

23. Consequently, in view of the above, this Court finds no illegality and infirmity in the order impugned in the instant proceedings rt and same is accordingly upheld. The present petition is dismissed being devoid of any merit. Pending applications, if any, also stand disposed of. Interim order, if any, is vacated.

(Sandeep Sharma), Judge August 31, 2023 (shankar) ::: Downloaded on - 01/09/2023 20:34:15 :::CIS

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