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Gujarat High Court

Dhanjibhai Veljibhai Chaudhary vs Chaudhary Becharbhai Veljibhai on 24 January, 2022

Author: Ashokkumar C. Joshi

Bench: Ashokkumar C. Joshi

     C/SCA/3942/2021                               JUDGMENT DATED: 24/01/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 3942 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================

      Whether Reporters of Local              Papers   may be
 1                                                                       YES
      allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                               YES

      Whether their Lordships wish to see the fair copy
 3                                                                        NO
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution                    NO
   of India or any order made thereunder ?

=======================================
             DHANJIBHAI VELJIBHAI CHAUDHARY
                           Versus
             CHAUDHARY BECHARBHAI VELJIBHAI
=======================================
Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2
=======================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 24/01/2022

                          ORAL JUDGMENT

1. Rule.

2. This petition under Article 227 of the Constitution of India is filed by the petitioner - original plaintiff praying for to issue writ of mandamus or certiorari and/or any other writ, order or Page 1 of 6 Downloaded on : Mon Jan 24 20:46:58 IST 2022 C/SCA/3942/2021 JUDGMENT DATED: 24/01/2022 direction in the nature of mandamus or certiorari quashing and setting aside the impugned order dated 17.03.2020 passed by learned Principal Civil Judge, Satlasana, District: Mahesana passed in application preferred below Exhibit 1 in CMA No. 5/2018 (Annexure-A) in the Regular Civil Suit No. 20 of 2015 and further be pleased to pass necessary orders for rectifying / correcting the name of the village from "Sudasana" to "Sadarasan" in the decree dated 03.07.2018 passed in Regular Civil Suit No. 20 of 2015 passed by the learned Principal Civil Judge, Satlasana, District: Mahesana (Annexure-D).

3. Facts in nutshell of the case on hand are that the petitioner herein had filed a Regular Civil Suit No. 20 of 2015 for declaration before the Court of learned Principal Civil Judge, Satlasana, which came to be partly allowed by the judgment and order dated 03.07.2018 and a decree was drawn accordingly, on 14.08.2018. Thereafter, since the petitioner - plaintiff came to the know about the error in showing the name of village "Sadarasan" as "Sudasana", filed an application being Misc. Civil Application No. 5 of 2018 under Sections 151, 152 and 153 and under O.XLVII R.1 of the Civil Procedure Code, 1908 (for short, 'the CPC") before the learned trial Court. However, the said application came to be dismissed by the learned Principal Civil Judge, Satlasana by an order dated 17.03.2020, being grieved by the same, the petitioner - original plaintiff is before this Court by way of this petition.

4. Heard, learned advocate Mr. Jigar G. Gadhavi for the petitioner - original plaintiff. Though served, none has put in appearance qua the respondents - original defendants.

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C/SCA/3942/2021 JUDGMENT DATED: 24/01/2022 4.1 It is pertinent to note here that, before the learned trial Court also, none had put in appearance on behalf of the respondents herein - original defendants and the suit, ultimately, came to be decided ex parte so also the impugned application.

5. The learned advocate for the applicant has submitted that the learned trial Court has fell into error in rejecting the application in question inasmuch as, a genuine typographical error was crept in the plaint, which came to the notice only after the suit was tried and judgment and decree was passed in the suit. He submitted that the learned trial Court has taken hyper- technical view in dismissing the application filed by the petitioner

- plaintiff. He submitted that the error was inadvertent otherwise, the petitioner - plaintiff had produced the relevant documents in support of his say. Accordingly, in the interest of justice, it is prayed that this writ petition may be allowed by setting aside the impugned order and also to rectify the name of village in the judgment and decree as prayed for above.

6. At the outset, it may be reiterated that though served and although sufficient opportunity was given to the respondents, they have chosen not to appear before the Court and accordingly, the Court had no option but to proceed with the matter.

6.1 Regard being had to the submissions made and perusing the material available on record, it appears that the petitioner had filed aforesaid suit being Regular Civil Suit No. 20 of 2015 for declaration, which was decreed in his favour by judgment and order dated 03.07.2018 and a decree was drawn accordingly, on 14.08.2018. However, since there was an error in writing the name of village "Sadarasan" as "Sudasana", the petitioner filed Page 3 of 6 Downloaded on : Mon Jan 24 20:46:58 IST 2022 C/SCA/3942/2021 JUDGMENT DATED: 24/01/2022 Misc. Civil Application No. 5 of 2018 under the provisions of Sections 151, 152 and 153 and under O.XLVII R.1 of the CPC before the learned trial Court. The said application came to be dismissed by impugned order dated 17.03.2020 and hence, the petitioner has filed this petition.

6.2 The learned advocate for the petitioner has submitted that the learned trial Judge has taken a very hyper-technical view in rejecting the said application. In this regard, if the observations made by the learned trial Judge are referred to, it is observed that, 'the application preferred by the petitioner did not fall within the ambit of Sections 151, 152, 153 and O.47 R.1(c) of the CPC'. It is further observed that, 'the judgment is pronounced and the decree is drawn are wholly as per the facts stated in the plaint and the place of suit property as mentioned in the judgment and decree is the same which is mentioned in the plaint'. In this regard, it may be noted that the precise issue before the learned Court below in the said application was with regard to the typographical error crept in the plaint with regard to the name of the village and consequent typing error in the final judgment and decree, which was sought to be corrected by the petitioner by way aforesaid application.

6.3 At the this juncture, if the provisions of Section 152 of the CPC are seen, they are as under:

"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."

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C/SCA/3942/2021 JUDGMENT DATED: 24/01/2022 6.4 Thus, Section 152 CPC vests powers in the Court to amend the judgments, decree or orders and provides that 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. Thus, by virtue of this section, the Court is very much empowered to rectify the clerical or arithmetical error in any judgment and/or decree or order. It may be noted that the petitioner - plaintiff had made the application in question for rectification of such mistake, which has been rejected by the learned trial Court.

6.5 At this juncture, it would not be out of place here to refer to the provisions of Section 151 CPC are referred to, they are as under:

"151.Saving of inherent powers of Court - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be for the ends of justice or to prevent abuse of the process of the Court."

6.6 Thus, the bare reading of the aforesaid provisions denotes that the Court concerned can make such orders as may be necessary for the ends of justice and/or to prevent the abuse of process of the Court. If the facts of the instant case are referred to again, when it is specific case of the petitioner - plaintiff that due to oversight, such a mistake has crept in the plaint of the suit and the name of village was written as "Sudasana" instead of "Sadarasan" and such typographical error consequently reflected in the judgment and decree of the learned trial Court and when, the petitioner has produced the relevant documents and that, when the respondents - defendants have not appeared either Page 5 of 6 Downloaded on : Mon Jan 24 20:46:58 IST 2022 C/SCA/3942/2021 JUDGMENT DATED: 24/01/2022 before the learned trial Court in the main suit or in the said application in question to controvert, in the opinion of this Court, the learned trial Judge has taken a very hyper-technical view of the matter, moresowhen, the learned trial Judge is empowered by virtue of Section 152 of the CPC. Further, it is also trite that the inherent powers under Section 151 of the CPC, vested in the Court, should be exercised sparingly and with a view to meet the ends of justice, however, exercise of discretion is commonplace in appropriate cases. Vesting of inherent powers in the Court by Section 151 of the CPC is with a view to do the substantial justice only and accordingly, not exercising the same in appropriate case would amount to failure of justice.

7. In view of the aforesaid observations and discussion, the petition succeeds and is allowed is part. The impugned order dated 17.03.2020, passed by learned Principal Civil Judge, Satlasana, District: Mahesana below Exh. 1 in Misc. Civil Application No. 5 of 2018 in the Regular Civil Suit No. 20 of 2015 is hereby set aside. The learned trial Judge concerned is hereby directed to go through the record and material on record and after considering the same and on proper verification, shall rectify the name of village as "Sadarasan" instead of "Sudasana" in the judgment and order as well as the decree passed in the original Regular Civil Suit No. 20 of 2015. Rule is made absolute accordingly. No order as to costs.

[ A. C. Joshi, J. ] hiren Page 6 of 6 Downloaded on : Mon Jan 24 20:46:58 IST 2022