Himachal Pradesh High Court
Defendants-Non vs Smt. Sarla Devi & Others on 8 April, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CMP No. 14541 of 2013 in
RSA No. 424 of 1992
Date of Decision: 08.04.2016.
.
Shri Ram Raksh Pal Singh (dead) through his LRs.
...Defendants-non applicants-Appellants-.
Versus
Smt. Sarla Devi & others
of
..Plaintiffs-respondents-applicants.
Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
rt
Whether approved for reporting? 1 Yes.
For the Appellants: Mr. Tara Singh Chauhan, Advocate, for
the appellants/non-applicants No.1(a) to
1(d) and 3 to 7.
For the Respondents: Mr. K.D. Sood, Sr. Advocate with
Ms.Vandana Thakur, Advocate, for
respondents No.1 to 5-applicants.
None for appellants No.2(a) to 2(b) and
respondent No.6.
Dharam Chand Chaudhary, J (oral)
CMP No. 14541 of 2013
This application has been filed with the following prayer:-
"It is, therefore, prayed that the application deserved to be allowed in the interest of justice and the accidental / clerical / typographical mistake which has 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 2
occurred in the judgment and decree passed by the Senior Sub-Judge, Una in Civil Suit No.277 of 1984 Dhanpat Rai Versus Niranjan Singh decided on 12.09.1988 out of which RSA No. 424 of 1992 had arisen and which RSA No. 424 of 1992 was decided .
by this Hon'ble Court by its judgment dated 17.05.2001 Ram Raksh Pal Singh Versus Sarla Devi corrected. Such other orders which this Hon'ble Court may deems fit and proper in the facts and circumstances of the case, may also be passed in of favour of the applicant."
2. Applicants are successors-in-interest of the original plaintiff Dhanpat Rai, who has since expired. Deceased plaintiff rt has filed the suit with the following prayers:-
"That it is claimed and prayed that the decree for specific performance of contract dated 26.12.1982 directing the defendant to execute the sale deed in favour of the plaintiff qua the suit land measuring 8 kanals 11 marlas described in the head note of the plaint and in the alternative decree for recovery of Rs.32000/- be passed with costs in favour of the plaintiff against the defendant or any other relief the court deems fit on the facts and the circumstances of the case be granted."
3. Suit after holding the trial was decreed, for the relief so sought, by learned Senior Sub-Judge, Una, vide judgment and decree dated 12.09.1988.
::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 34. An appeal preferred against the judgment and decree was also dismissed by learned District Judge, Una vide judgment and decree dated 13.10.1992.
5. Regular Second Appeal bearing No. 424 of 1992 filed .
in this Court was also dismissed on 17.05.2001.
6. Matter was further taken to the Hon'ble Apex Court in Civil Appeal No. 3052 of 2003. The same was also dismissed for non prosecution vide order dated 07.10.2010. The judgment and of decree passed by learned Senior Sub-Judge, therefore, has attained the finality.
7. rt It is during the course of execution proceedings the applicant/plaintiff came to know that the suit though was filed for the decree of possession of land measuring 8 kanal 11 marlas, however, by way of mistake half share of the land measuring 2 kanal 1 marla i.e. 1 kanal entered in Khewat No. 71, Khatauni Nos. 484 and 485, Khasra No. 3798 omitted to be mentioned in the judgment and decree and also that Khasra No.3800 came to be wrongly typed as Khasra No.3890. This has led in filing an application under Sections 151, 152 and 153 of the Code of Civil Procedure (hereinafter referred to as the CPC) in the Court of learned Civil Judge (Senior Division), Una. The same, however, was dismissed in default on 14.03.2008. The applicants/plaintiffs thereafter moved another application being OMP No.102 of 2008.
The same was dismissed by learned Civil Judge (Senior Division), Una, vide order dated 01.10.2012, on the ground that no clerical ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 4 mistake was there in the judgment and decree and also that the application was not maintainable. The applicants/plaintiffs have filed Civil Revision No.139 of 2012 in this Court against the order passed by learned Civil Judge (Senior Division), Una in OMP No. .
102 of 2008. According to learned counsel, the Revision Petition, was later on withdrawn and the same stands dismissed accordingly.
8. The relief in this application has been sought on the of grounds inter alia that the suit was filed for possession of land measuring 8 kanals 11 marlas in terms of the agreement dated 26.12.1982.
rt However, a portion thereof measuring 1 kanal entered in Khewat No.71, Khatauni Nos. 484 and 485, Khasra No. 3798 to the extent of half share of Niranjan Singh omitted to be mentioned in the plaint. Similarly Khasra No.3800 came to be wrongly typed out as Khasra No.3890.
9. Application has been contested and resisted by the defendants/non-applicants on the ground that neither the suit was filed before this Court nor this Court has decreed the suit originally. Also that no lis is pending in this Court and as such, at this belated stage, the applicants/plaintiffs are not entitled to seek any correction in the judgment and decree. The mistake sought to be corrected according to the respondents/defendants is neither clerical nor arithmetical and on this score also the application deserves dismissal. Rejoinder has also been filed.
::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 510. On hearing learned counsel representing the parties at length and taking into consideration the law cited at the Bar, the bare perusal of the provisions of Sections 151, 152 and 153 of the CPC, the clerical or arithmetical mistake in the judgments, .
decrees or order or errors arising therein on account of any accidental slip or omission can be corrected at any time by the Court either on its own motion or on the application filed by any of the parties. The scope of provisions contained under Section of 152 of the CPC has further been interpreted by the Apex Court and various High Courts, including our own High Court in several rt judicial pronouncements. Support in this regard can be drawn from the judgment of the Apex Court in Dwaraka Das Versus State of M.P. and another, (1993) 3 SCC 500. This judgment reads as follows:-
"6. Section 152 C.P.C. provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of 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, Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistake 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 beyond ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 6 the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. 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 province of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No Court can, under the cover of aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial Court had of specifically held the respondents-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the rt claim of the appellant in so far as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial Court while order dated 30-11-1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State."
11. Similar is the ratio of the judgment again rendered by the Apex Court in Jayalakshmi Coelho Versus Oswald Joseph Coelho, (2001) 4 SCC 181. The judgment also reads as follows:-
"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 ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 7 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 Gauhati 41, The Assam Tea Corporation Ltd. v. Narayan Singh. Hence, an unintentional mistake of the Court which may prejudice cause of any party must be rectified. In another case reported in AIR 1962 SC 633, Janakirama Iyer v. P. M. Nilakanta Iyer it was found that by mistake words "net of 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 v. Tribeni, AIR 1965 SC 1935, it rt 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 SC 1047, Master Construction Co. (P) Ltd. v. State of Orissa, 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 SCC 500, Dwarakadas v. State of M.P. 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 ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 8 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 CPC 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 CPC of 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 v. P. Venugopala Pillai, AIR 1940 Madras 29 and rt relied on Maharaj Puttu Lal v. 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 SCC 528, State of Bihar v. Nilmani Sahu, 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 v.
Special Land Acquisition Officer, reported in (1996) 4 SCC 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.
12. It is thus seen from the law laid down by the Apex Court that the principle on which provisions of Section 152 of CPC are based, is that no party should suffer due to mistake on the ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 9 part of the Court and whatever is intended by the Court while passing an order or decree must be properly reflected therein.
13. Now if coming to the judgment of our own High Court, in Rania Versus Smt. Kamla Devi and another, AIR 1976 HP 57, it .
has been held in this judgment that the Court under Section 152 of the CPC, is competent to amend a clerical error in a decree irrespective of such error had occurred on account of mistake of the parties themselves in their pleadings. The relevant portion of of this judgment also reads as follows:-
"4. According to Mt. Anupa Kuer v. Yogendra Jha (AIR 1954 rt Pat 108) where the plaint omitted to state from which direction the plaintiff claimed recovery of possession over the suit plots, it was held that the decree, which, having been drawn in accordance with plaint, also omitted to give such direction should be amended since there was no ambiguity as to the subject-matter of the suit but there was only a mistake as to the description of the property. Similarly in Shahzad Khan v. Pt. Sheo Kumar (AIR 1957 All
133) also it has been held that a court can under Section 152 amend a clerical error in a decree although the error may have occurred on account of a mistake of the parties themselves in their pleadings and this mistake in the decree was on account of its being copied from the plaint.
In such cases it is not necessary to amend the plaint itself. Similarly in N. Subramonia Iyer v. Joseph George (AIR 1959 Ker 386) also it had been observed that the question how far a court can under Section 152 amend clerical error in a decree although the error may have first occurred in the parties' pleadings and may have been merely copied from them in the decree has been the subject of some diversity of judicial opinion. The language of Section 152 does not exclude such mistake and there is no reason for restricting ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 10 the scope of the Section to correction of errors made by the court itself. Indeed mistakes having their origin anterior to the suit and repeated in the decree have themselves been corrected by exercise of jurisdiction under this section.
.
14. A Coordinate Bench of this Court in Mahant Dhanraj Gir @ Vinod Mahant Versus Smt. Lohki Devi, CMPMO No. 37 of 2007, decided on 08.12.2011, in more or less a similar situation, has upheld the order passed by the trial Court deleting thereby certain Khasra numbers from the decree for which no relief was of granted.
15. In view of the settled legal principles in the rt judgments supra, it is, therefore, crystal clear that not only the error occurred in the judgment and decree on account of own mistake of the ministerial and judicial actions attributed to the Court, but also on account of omissions attributed to the parties, can be ordered to be corrected because it is well settled at this stage that rules of procedure are handmaiden and meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to hamper the cause of justice or sanctify miscarriage of justice. Support can again be drawn in this regard from the judgment of our own High Court in Devi Roop Versus Smt. Devku and others, 2006(2) Shim. LC 158. This judgment also reads as follows:-
"20. It is well settled law that the rules of procedures are handmaiden of justice. These rules should be used to promote the cause or justice and to ensure that the object of doing substantial and real justice is achieved. If two ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 11 interpretations are possible then the interpretation favouring the decision of the case on merits resulting in substantial and real justice should be adopted. The rules of procedures should not be used to thwart the ends of justice and to avid adjudication on merits. Reference in .
this behalf may be made to the judgment of the Constitutional Bench of the Apex Court in Sardar Amarjit Singh Kalra (dead) by LRs. And others v. Pramod Gupta (Smt. ) (Dead) by LRs. and others, (2003) 3 SCC 272, wherein the Apex Court held as follows:-
"26. Laws of procedure are meant to regulate of effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights rt of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. ..........................................................................."
"31. Xxxxxxxxxx. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it........."
16. Now if coming to the question of jurisdiction of this Court to entertain and decide this application, the law on the question is again no more res integra as in Devi Roop's case (supra), it has been held that the High Court in view of the ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 12 doctrine of merger is competent to entertain and decide an application for correction of the judgment and decree. In this regard also I may make a reference to the judgment supra , which reads as follows:-
.
"18. The next question which has been raised is whether dismissal of a the appeal would be a bar to the trial Court exercising the powers under Sections 152 and 153 C.P.C.
Section 153-A of the Civil Procedure Code lays down that where the appellate Court dismisses an appeal in limine of without issuing notice to the respondents, the power to amend a judgment or order under Section 152 CPC may be exercised by the Court which had passed the original judgment, decree or order. In the present case admittedly rt the appeal was not dismissed in limine. On the other hand, the appeal was not decided on merits also by the learned District Judge. The appeal was dismissed as not maintainable. According to the learned District Judge the appeal was not property constituted since there was no decree against Inder Dutt, who had filed the appeal. The principle underlying Section 153-A CPC is the doctrine of merger. As per this doctrine when an appeal is heard and disposed of after a contested hearing the judgment of the trial Court merges in the judgment of the appellate Court.
The Apex Court in M/s Gojer Brothers (P) Ltd. v. Shri Ratan Lal Singh, AIR 1974 SC 1380, held as follows:-
"The fundamental reason of the rules that where there has been an appeal, the decree to be executed is the decree of the appellate Court is that in such cases the decree of the trial Court is merged in the decree of the appellate Court. In course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like revisions and even to ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 13 proceedings before quasi-judicial and executive authorities."
"19. In view of the law laid down by the Apex Court it is clear that if the decree of the trial Court has merge in the decree of appellate Court then of course the trial Court has .
no jurisdiction to amend the same. In the present case, however, I am of the opinion that the decree of the trial Court never merged in the decree of the appellate Court. The appellate Court did not decide the appeal on merits.
Since the appellate Court held that the appeal itself was not maintainable and was not properly constituted, there of was in fact no properly constituted appeal pending before it and the decision by the appellate Court was not a decision on merits. Section 153-A C.P.C. only empowers the trial Court to amend the decree or order even when rt the appeal has been dismissed in limine. It does not take away the powers otherwise vested in the trial Court. As observed above, the principle underlying this Section is the doctrine of merger that once an appellate Court has passed a decision then the judgment of the trial Court will merge in the judgment of the appellate Court and it will cease to have jurisdiction to amend its own judgment, decree or proceedings. The appellate Court only disposed of the matter by holding that Inder Dutt had no right to file the appeal since no decree had been passed against him. Therefore, the question of merger does not apply and Section 153-A would not be attracted. The mere fact that the appeal was decided after notice and not in limine would not take away the jurisdiction of the trial Court to amend its judgment and decree because of the fact that there was no decision on the case by the learned District Judge."::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 14
17. To the similar effect is the law laid down again by a Coordinate Bench of this Court in Kusum Kumari Versus Krishan Kumar & others, CMPMO No. 443 of 2008, decided on 25.07.2012.
18. This question even has been gone into by another .
Coordinate Bench of this Court in Mahant Dhanraj Gir's case (supra).
19. Therefore, keeping in view that the appeal filed by the respondents/non-applicants/defendants was ult imately of dismissed by this Court, the doctrine of merger shall come into play and as such this Court is competent to entertain and pass rt appropriate order in this application. The matter though was further taken to the Hon'ble Supreme Court, however, the appeal was dismissed in default and as such there is no adjudication of dispute by the Apex Court on merits. The judgment passed by this Court has, therefore, attained finality.
20. Now if coming to the grounds on which correction in the judgment and decree has been sought, in my considered opinion, first page of the judgment makes it crystal clear that Khasra number of the suit land was wrongly typed as 3890.
However, it came to be corrected as 3800 by way of retyping.
Irrespective of the correction made, the same gives impression that it is 3890. Therefore, the correction to this effect in the judgment and decree is granted. I, therefore, order that Khasra number in paragraph-1 (b) of the judgment and decree dated 12.09.1988, passed by learned Sub-Judge, Una, in Specific ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 15 Performance Suit No.277/84, shall be read as 3800 instead of 3890 for all intents and purposes.
21. Now if coming to the inclusion of land measuring 1-1 kanal being half share of Dhanpat Rai, deceased defendant No.1 .
in the land entered in Khewat No.71, Khatauni Nos. 484 and 485, measuring 2-01 kanal, no pleadings to this effect was there in the plaint. Allowing the addition to this effect in the judgment and decree would amount to modification, alteration and addition in of the judgment and decree without there being pleadings and any proof therefor on record. In the light of the law laid down by the rt Apex Court in Dwaraka Das and Jayalakshmi's case (supra), it is not legally permissible to do so.
22. Our own high Court in Sh.Jai Singh & Another Versus Smt. Sarla Devi, 2011 (3) Him. L.R. 1395, while placing reliance on the judgment of the Apex Court in Dwaraka Das and Jayalakshmi's cases (supra), has concluded that no Court can modify, alter or add to the terms of original judgment and decree or order in exercise of the powers vested under Sections 151 and 152 of the CPC. This judgment reads as follows:-
"6. I have heard learned counsel for the parties and have also gone through the record. There is no limitation prescribed for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The Court has power to correct these errors at any time either on its own motion or on the application of any parties. In the present case, the suit was decreed on 10.03.1975 and the amendment under Section 152 was ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 16 allowed on 18.12.2002. In the reply to the amendment application, it has been stated that Kirpa Ram, predecessor-in-interest of the petitioners, had purchased the land from Bala Ram and since then the land is in possession of the petitioners. The respondent or her .
husband had never raised any objection.
7. In Dwaraka Das versus State of M.P. and Another (1999) 3 SCC 500 the Supreme Court has held that the exercise of power under Section 152, CPC contemplates the correction of mistakes by Court of its ministerial actions and does not contemplate passing of of effective judicial orders after the judgment, decree or orders. No Court can, under the cover of the Sections 151, 152 modify, alter or add to the terms of its original judgment, decree or order.
rt
8. In Jaya Lakshmi Coelho versus Oswald Joseph Coelho (2001) 4 SCC 181 the decree was passed on 07.03.1992 and the husband filed an application on 30.06.1992 that the decree by mutual consent was granted to the parties on 07.03.1992 but the order remained silent on other reliefs which were mentioned in the agreement and in para-8 of the petition. On those facts, the Supreme Court has held that 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. It is to be confined something initially intended but left out or added against such intention.
9. In Bela Debi versus Bon Behary Roy and others AIR 1952 Cal. 86, it has been held that there is no time limit for application under Section 152. It is, however, an equally established fact that no amendment should be allowed if third party has acquired rights, and/or where it would be inequitable or unjust to allow the rectification. In P.S. Narayana Iyer versus Biyari Bivi and Others AIR 1923 Madras 57 it has been held that the ::: Downloaded on - 15/04/2017 20:05:17 :::HCHP 17 exercise of power to amend under Section 152 is discretionary and necessarily so, when no period of lim itation is provided for application for its exercise and, therefore no investigation of title can insure those, who acquire rights in property dealt with in a previous decree, .
against the effect of a subsequent amendment thereof.
10. In J Abid Hussain v. Mrs. R.K. Paul and another AIR 1961 A.P. 508, it has been held that a correction could be made under Section 152 of the Code at any time, such a thing is possible only as long as interests of third party do not intervene, secondly any of inertia on the part of a person asking for the amendment should be tolerated when the third party acquire interests, though it is necessary that the third party should have acted in good faith without the knowledge of the defective rt decree."
23. Therefore, in view of the legal position discussed hereinabove, land measuring 1 kanal being half share of the total land measuring 2-01 kanal entered in Khewat No.71, Khatauni Nos. 484 and 485, Khasra No.3798 cannot be added in the judgment and decree as no such error has occurred therein due to typographical or clerical mistake and rather the addition to this effect has been sought without there being any pleadings in the plaint.
24. In view of the above, present application is partly allowed and the same is accordingly disposed of.
(Dharam Chand Chaudhary),
April 8, 2016 Judge.
(Purohit)
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