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2001 DIGILAW 1442 (PNJ)

Joginder Singh Jogi v. Surjit Kaur

2001-12-21

M.M.KUMAR

body2001
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure is directed against the order dated 1.9.1980 passed by Sub Judge Ist Class, Phillaur on an application moved by the petitioner for amendment of the decree passed in Civil Suit No. 82 of 1972, decided on 2.3.1973. 2. The plaintiff-petitioner (for brevity, "the plaintiff) had filed a suit for permanent mandatory injunction to the effect that defendant-respondent (for brevity, "the defendant) be restrained from digging pits and excavating earth from field Nos. 23/2 and 3/1. Further directions were sought against the defendant to order her to fill up the pits which she had dug with the object of stopping the passage of the water channel from the well Rahawala to the plaintiffs land as described in the plaint situated in village Nawan Pind Naicha, Tehsil Phillaur. 3. In order to settle the controversy, the trial Court framed three issues. On the first two issues, the findings recorded by the trial Court went in favour of the plaintiff. On issue No. 1, whether a water channel existed on the boundary (butt) between Khasra Nos. 22/2, 23/2, 2/1 and 3/1 the trial Court returned the finding that the water channel existed on the boundary of aforementioned khasra numbers. For reaching the aforesaid finding, the trial court referred to an order passed by the Sub Divisional Officer (Civil), Phillaur wherein the Sub Divisional Officer (Civil) had held vide his order dated 11.1.1967 that Malkiat Singh, husband-attorney of the defendant had forcibly demolished the Khaal in existence and had diverted the flow of water to another direction and had directed the reconstruction of the Khaal as it existed before in conformity with the consolidation scheme. This order was challenged by Shri Malkit Singh, husband-attorney of the defendant and also by the defendant herself in two separate suits. These judgments have been exhibited as Ex. P4, P3 and P7. The effect of these judgments was that both the suits were dismissed and restoration of the old khaal was ordered. The learned Sub Judge dealt with the aforementioned issues in the following words :- "These judgments reveal that the old water channel running from the well "Rahawala located in Khasra No. 6/27 was ordered to be restored. I find that in these orders the Khasra numbers in which the water channel flows were not mentioned. The learned Sub Judge dealt with the aforementioned issues in the following words :- "These judgments reveal that the old water channel running from the well "Rahawala located in Khasra No. 6/27 was ordered to be restored. I find that in these orders the Khasra numbers in which the water channel flows were not mentioned. This omission has been made up by the attorney of the defendant and witnesses. Malkiat Singh (DW4) who is the husband and attorney of the defendant, stated in cross examination that the dispute regarding the same khal was taken up in the Court of SDO (C) Phillaur and he had appeared in that case. Similarly Ajit Singh (DW1) also stated that a case regarding the same water channel went up in the Court of SDO (Civil). This means that the orders of the courts referred to above relate to the water channel in dispute and to no other. The SDO (Civil) Phillaur passed an order for the restoration of the water channel when it has been demolished by Malkiat Singh. His order was upheld by the Civil Courts also. It is, therefore, manifest that the water channel existed on the boundary of Khasra numbers 22/2, 23/2, 2/1 and 3/1. On behalf of defendant no arguments were addressed on this issue. This issue is therefore decided in favour of the plaintiffs." 4. On issue No. 2, as to whether defendant-respondent had dug pits on the butt, the learned Sub Judge recorded the finding that she has dug pits and lowered the level of her land to prevent the flow of water from the disputed water channel. This issue is decided in favour of the plaintiff. 5. As a result of the findings given on issue Nos. 1 and 2, the findings on issue No. 3 given were that the plaintiff was entitled to the injunction prayed for and the findings recorded on issue No. 3 were as under :- "It has been noted above that on a complaint filed by Joginder Singh plaintiff, the SDO (Civil) passed an order directing Malkiat Singh to reconstruct the water course which he had demolished. His order to that extent was upheld by the Civil Court. The plaintiffs are therefore entitled to the flow of water from the disputed water channel. His order to that extent was upheld by the Civil Court. The plaintiffs are therefore entitled to the flow of water from the disputed water channel. It has been held above in finding on issue No. 2 that the defendant has dug pits on her land with a view to prevent the flow of water from the water channel. It recognised that when a water course has been illegally obstructed and completely effected, the party injured is entitled to a mandatory injunction to compel the restoration of the water course to its natural form and also a permanent injunction to restrain the defendant from repeating the wrongful act. I am therefore of the opinion that the plaintiffs are entitled to the injunction restraining the defendant from the digging pits and excavating earth from field Nos. 23/2 and 3/1 and also for an injunction ordering the defendant to fill the pits which she has dug on her land in order to stop the passage of the water channel. This issue is therefore decided in favour of the plaintiff." However, in relief part of the judgment, the field numbers in which the pits were dug and were to be filled up by the defendant could not be mentioned, resulting into further litigation. This mistake also occurred while drawing the decree sheet. In the relief part, the following relief was granted :- "In view of the findings on the above issues; the suit of the plaintiffs for a permanent injunction restraining the defendant from digging pits and excavating earth from field numbers 23/2 and 3/1 and ordering her to fill the pits which she has dug in order to stop the passage of the water channel from the well Rahawala to the land of the plaintiffs is hereby decreed with costs." The executing court showed its inability to order restoration of the water course running through Khasra Nos. 22/2 and 2/1 because there was no mention of these Khasra numbers in the decree or in the relief clause of the judgment and on that score the application of the plaintiff was dismissed on 18.5.1979. 6. Thereafter on 14.3.1980, the plaintiff moved an application for correction in the judgment and decree dated 2.3.1973. That application was dismissed on 1.9.1980 by recording the following order :- "I have heard the application filed by the Joginder Singh. 6. Thereafter on 14.3.1980, the plaintiff moved an application for correction in the judgment and decree dated 2.3.1973. That application was dismissed on 1.9.1980 by recording the following order :- "I have heard the application filed by the Joginder Singh. Joginder Singh seeks amendment in the judgment and decree of the case. I have gone through the record of the original file and it is found that the amendment sought by the applicant is not possible as no such relief was claimed by the plaintiff/applicant in the original case. Therefore, the application of the plaintiff/applicant is rejected." It is against this order that the plaintiff has now filed this revision petition. The principal ground taken by the learned Sub Judge for rejecting the application is that since no such relief was claimed, by the plaintiff in the original plaint, the amendment sought by him cannot be ordered. In the original plaint, the relief sought was that the defendant may be directed to fill the pits which she had dug with the object of stopping the passage of the water channel from the well "Rahawala to the plaintiffs land. It is not possible to take the view that the decree passed by the trial court was directed and confined to fill up the pits which were dug by the defendants The whole object of the decree was removal of obstructions for the free flow of water channel from the well "Rahawala to the fields of the plaintiff. Although there was no specific prayer made for the restoration of the water channel, yet the discussion on issue No. 1 shows that the order passed by the Sub Divisional Officer (Civil), which was upheld by the Civil Courts was to restore the water channel. If totality of facts and circumstances is kept in view, then no doubt is left that the prayer for restoration of the water channel would be included in the prayer seeking direction that the defendant may be permitted to fill the pits which she had dug with the object of obstructing the passage of water channel from the well "Rahawala to the fields of the plaintiff. 7. The policy of law is to avoid multiplicity of litigation and also to defeat technicalities, which would result in manifest miscarriage of justice. 7. The policy of law is to avoid multiplicity of litigation and also to defeat technicalities, which would result in manifest miscarriage of justice. In The State of Punjab and another v. Shamlal Murari and another, AIR 1976 SC 1177 the following guidance with regard to procedural law was furnished by their Lordships of the Supreme Court :- "We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, though procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, Courts are to do justice, not to wreck this end product on technicalities." The legal consequences in the present case have to be examined by keeping in view the guidance provided by the Supreme Court and the policy of law to avoid multiplicity of litigation. In the present case, the parties have already litigated before the Sub Divisional Officer (Civil) and two suits have been filed challenging the order of Sub Divisional Officer (Civil) dated 11.1.1967, which have resulted into passing of the judgments Exs. P3, P4 and P7. After considering all these documents and various statements of the parties, the learned Sub Judge, Phillaur has concluded in his judgment dated 2.3.1973 that the defendant has obstructed the free flow of water channel from the well Rahawala to the fields of the plaintiff. The water channel has been found to be sanctioned one. The discussion in the judgment clearly shows that Khasra Nos. 22/2 and 2/1 were mentioned besides Khasra Nos. 23/2 and 3/1. However, in the relief part as well as in the decree sheet, the learned Sub Judge did not make mention of the aforementioned Khasra numbers. After thorough consideration of the record, I have reached the conclusion that the omission of those khasra number is not deliberate but it is inadvertent. 8. 23/2 and 3/1. However, in the relief part as well as in the decree sheet, the learned Sub Judge did not make mention of the aforementioned Khasra numbers. After thorough consideration of the record, I have reached the conclusion that the omission of those khasra number is not deliberate but it is inadvertent. 8. In accordance with the provisions of Order 20 Rule 6 read with Section 152 of the Code of Civil Procedure, civil Courts are vested the powers to order correction of the judgment and decrees. This power is, however, based on two important principles: (i) that an act of the Court shall prejudice no party, and (ii) the Courts have the duty to see that their records represent the correct state of affairs. In proceedings for amendment of decree, it is not to be seen what relief was sought by the parties in their pleadings but the enquiry is confined only to ascertain in whether the decree correctly expresses what was really decided. This view was taken in the case of Bishnu Charan Das v. Dhani Biswal and another, AIR 1977 Orissa 68. In paragraph 4 the learned Single Judge expressed the view in the following words :- "Section 152, Civil P.C. is based on two important principles. The first of them is the maxim that an act of the Court shall prejudice no party and the other that the Courts have a duty to see that their records are true and that they represent the correct state of affairs. In proceedings for amendment of a decree, the inquiry is confined only to seeing whether the decree correctly expresses what was really decided and intended by the Court. Order 20, Rule 6 clearly provides that the decree shall agree with the judgment. If the decree is not in harmony with the judgment the Court has no alternative but to rectify the mistake which was has been committed. As the power to amend is exercised for the promotion of justice, it should be exercised liberally so as to make the decree conform to the judgment on which it is founded. If the decree is not in harmony with the judgment the Court has no alternative but to rectify the mistake which was has been committed. As the power to amend is exercised for the promotion of justice, it should be exercised liberally so as to make the decree conform to the judgment on which it is founded. I am fortified in this view by an earlier decision of this Court reported in AIR 1966 Ori 225 (Sagua Barik v. Bichinta Barik) wherein it was held on a review of the authorities that if the decree is not in conformity with the judgment it must be allowed to be amended under Sections 152 and 151 to bring it in line with the judgment and that in exercising the power under Sections 151 and 152 the Court merely corrects the mistake of its ministerial officer by whom the decree was drawn up." In the case of Seth Manakchand v. Chaube Manoharlal and another, AIR 1944 Privy Council 46, Privy Council also took the view that the decree has to be construed with reference to the judgment and not with reference to the pleadings. The view of the Privy Council in this regard is as follows :- "Under the Code the decree is the formal expression of the adjudication (S. 2); it is imperative that it should conform to the judgment (Order 20 Rule 6), every Court has power to amend its decree so as to carry out its own meaning (cf. Section 152). For the purpose of interpreting a decree no other document is so directly in point as the judgment or can in the nature of things have comparable force." When the aforesaid principles are applied to the facts of the present case, no doubt is left that the learned Sub Judge in his judgment has intended to remove all obstructions for the purposes of restoring the water channel and for that reason he had issued direction to the defendant to fill up the pits which she had dug with the object of stopping the passage of the water channel from the well Rahawala to the land of the plaintiff. Moreover, the order dated 1.9.1980 passed by the learned Subordinate Judge on the application seeking clarification of the decree makes reference to the pleadings instead of taking in consideration the discussion in various parts of the judgment. Moreover, the order dated 1.9.1980 passed by the learned Subordinate Judge on the application seeking clarification of the decree makes reference to the pleadings instead of taking in consideration the discussion in various parts of the judgment. Therefore, the trial Court committed a grave irregularity in passing the order dated 1.9.1980. 9. In view of the above, the revision petition is allowed. Order dated 1.9.1980 dismissing the application of the plaintiff is set aside. It is directed that the decree be read to include Khasra No. 22/2 and 2/1. Therefore, the decree is amended to that extent. The trial Court is directed to draw the decree afresh while incorporating the aforesaid khasra numbers with the object that water channel of the plaintiff is restored. Revision allowed.