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1995 DIGILAW 598 (MP)

Ramcharan v. Shiv Prasad

1995-07-26

T.S.DOABIA

body1995
ORDER 1. This order shall dispose of the above writ petitions namingly Writ Petition No. 1625 of 1992 and W.P. No. 1153 of 1993. The brief facts as to how this litigation has come to this Court are as under. 2. A civil suit was filed by Shiv Prasad. This was dismissed by the trial Court. On an appeal having been preferred before the appellate Court, a decree was passed in favour of Shiv Prasad. The appellate Court is Court of II Additional District Judge, Shivpuri. Against that, decree, an appeal was preferred in this Court. That appeal was dismissed in limine. This happened on 19th of June, 1990. Against this, a Special Leave Petition was preferred. This Special Leave Petition No. 15341 of 1990, was dismissed on 14th January, 1991. 3. After this litigation came to an end, the plaintiff respondent Shiv Prasad preferred a petition seeking amendment of the decree. This application was filed before the Court of Additional Judge. This was partly allowed. This has led to the filing of two petitions by both the sides. 4. The respondents defendants who has filed petition No. 1153 of 1993 submits that the Additional District Judge had no jurisdiction to order amendment of the decree. According to him, only that Court which passed the final decree would be competent to amend the same. According to him, only the Supreme Court of India, has jurisdiction to amend the decree. In any case, it is submitted that this Court having dismissed the appeal against the decree could be amended by this Court alone. 5. Reliance has been placed on a decision reported as Nishabar Singh v. Local Gurdwara Committee Manjit Sahib, Kamal and another, AIR 1986 P & H 402. The above judgment does make mention of the fact that if the decree of the trial Court is affirmed or modified by appellate Court then appellate Court would alone would have jurisdiction. The relevant observation is as under: "The trial Court passed a decree in favour of the Local Gurdwara Committee for whole of the land. Before the decision of the application the appellate Court modified the decree of the trial Court and dismissed the suit of the plaintiff qua half of the property. It is well settled that the decree of the trial Court after decision of the appeal merges with that of the appellate. Court. Before the decision of the application the appellate Court modified the decree of the trial Court and dismissed the suit of the plaintiff qua half of the property. It is well settled that the decree of the trial Court after decision of the appeal merges with that of the appellate. Court. After the modification of the decree by the appellate Court, the trial Court was left with no jurisdiction to amend the decree." 6. But the question in this case is whether in view of the provisions contained in section 153-A of the Code of Civil Procedure, 1908, the reasoning given in the aforementioned judgment would be attracted or not. The above provision makes it apparent that if an appeal is dismissed under Order 41 Rule 11 C.P.C., then the jurisdiction to amend the decree would be with the Court which passed the decree finally. This change was brought about by the Act of 1976. The statement of objections and reasons makes it apparent that there was some divergence of view on this object. The view taken by the Bombay and Patna High Court on the one side and Allahabad & Andhra Pradesh High Courts was totally divergent. Section 153-A was inserted to remove this divergence. It has now been categorically laid down that when an appeal has been dismissed summarily then the jurisdiction to amend the decree shall remain with the Court which had passed the decree after hearing both the sides. Provisions of section 153-A & Statement of object of reasons be noticed. This reads as under: "153A. Power to amend decree or order where appeal is summarily dismissed.- where an Appellate Court dismisses an appeal under rule 11 of the Order XLI, the power of the Court to amend, under section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance." OBJECTS AND REASONS "Sections 152 and 153 authorise the correction of mistakes in judgments, decrees, etc. There is, however, a doubt as to which Court would be competent to amend a decree or order where an appeal against the decree or order has been summarily dismissed. There is, however, a doubt as to which Court would be competent to amend a decree or order where an appeal against the decree or order has been summarily dismissed. The Bombay and the Patna High Courts have taken the view that it is the original Court which has the power to amend the decree or order. The High Courts of Allahabad and Andhra Pradesh have taken a contrary view. In view of the divergence of opinion, new section 153A is being inserted empowering the Court which had passed the decree or order appealed against to amend the decree or order where appeal has been summarily dismissed." 7. As such, the opinion expressed by the Punjab & Haryana High Court would not be attracted to the facts of this case. Here, the appeal was dismissed by this Court in ‘limine without calling the records from the Courts below. As such, no error could be found with the order passed by the Court of Additional district Judge in amending the decree in question. Writ Petition No. 1153 of 1993 is liable to be rejected on this count. 8. Writ Petition No. 1625 of 1992 be now examined: 9. Some relief has been declined. Amendment has not been permitted to the plantiff decree-holder. The facts which are relevant for the disposal of the petition are as under: 10. The petitioner was granted to patta by the Madhya Pradesh Government, Annexure P/3 and P/10. This pertains to survey numbers 144/1, 144/2. It be seen that the argument of the learned counsel for the petitioner is that he was found to be owner of the land which was subject matter of the petition and which was mentioned and described in annexures P/3 and P/10. Somehow or the other towards the end of the judgments in the relief clause, this aspect of the matter was not mentioned. According to him, this fact stands mentioned in para 17 of the judgment but it has not been mentioned in the concluding para 25. According to him, this is an omission and it can be rectified by restoring to section 152 of the Code of Civil Procedure. 11. The Court below has refused to exercise the jurisdiction. According to him, this aspects of the matter is not found mentioned in the opearative para of the judgement. According to him, this is an omission and it can be rectified by restoring to section 152 of the Code of Civil Procedure. 11. The Court below has refused to exercise the jurisdiction. According to him, this aspects of the matter is not found mentioned in the opearative para of the judgement. It may be seen that it was this omission which led to a prayer for amendment & rectification being made by the petitioner. It be seen that the question as to whether the land forms part of annexures P/3, and P/10 is a matter with which the State of M.P. is concerned. The decisions reported as Master Construction Co. v. State of Orissa AIR 1966 SC 1047 and Chandra Shekhar v. Nivamatram 1972 JLJ 464 , do support the argument of the petitioner. 12. As such, the Court below would re-examine the matter. Let opportunity be also given to the State of M.P. Thus writ petition No. 1625 of 1992 is allowed and the matter is remanded to the Court below who would pass a fresh order, after affording opportunity of hearing to all the concerned and a specific notice would be given to the State of M.P.