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2005 DIGILAW 79 (UTT)

PRAKASH BHATT v. DEVKI NANDAN BHATT

2005-03-15

PRAFULLA C.PANT

body2005
( 1 ) THESE two applications no. 5467 of 2004 and 5981 of 2004 have been moved on behalf of respondent Nos. 1 and 2 for correction/amendment in the judgment and order dated 18-2-2003 passed in a. O. No. 198 of 2002 and 199 of 2002 and decree followed therefrom. ( 2 ) HEARD learned counsel for the parties at length and perused the entire record. ( 3 ) THIS case has a chequered history. A suit No. 13 of 1999 was instituted by the appellant Sri Prakash Bhatt against Sri ganesh Bhatt and Sri Devki Nandan Bhatt (present respondents) for perpetual prohibitory injunction that the defendants be restrained from interfering in the peaceful possession of plot No. 4 and 5 situated at vernon Cottage Compound, Tallital, Nainital owned by him. Another cross suit No. 51 of 2000 was filed by Sri Devki Nandan Bhatt and Sri Ganesh Bhatt (present respondents)against Sri Prakash Bhatt, Smt. Sunita pandey, Sri Urba Dut Pandey, Sri Radha ballabh Pandey, Smt. Asha Pant and Sri sharat Chand Tiwari (defendant-respondents) praying that they be restrained from using 6 feet wide footpath by the plaintiff which lies between plot Nos. 4 and 5 on one side and plot No. 7-B on the other side in said Compound. Both the suits were tried together and disposed of vide judgment and order dated 11-10-2001 passed by learned civil Judge (Junior Division), Nainital whereby suit No. 13 of 1999 was decreed with costs and the suit No. 51 of 2000 was dismissed as against the defendants No. 1 to 4, but decreed as against remaining defendants No. 5 and 6. It appears that against said judgment and decree, three appeals were filed before the First Appellate Court viz. civil appeal No. 59 of 2001 (against decree in civil suit No. 51 of 2000) and civil appeal No. 60 of 2001 (against decree in civil suit No. 13 of 1999), both filed by Sri Devki nandan Bhatt and Sri Ganesh Bhatt (present respondents) while civil appeal No. 61 was filed by Smt. Asha Pant and Sharat chand Tiwari (defendant No. 5 and 6 in suit no. 51 of 2000) in respect of decree passed against them. 51 of 2000) in respect of decree passed against them. All the three appeals were heard together by the First Appellant Court and disposed of vide common judgment and order dated 26-7-2002 whereby all the three appeals were allowed and the judgment and decree passed by the learned trial Court were set aside. However, the learned first Appellate Court remanded the case to the trial court for deciding the suits afresh after getting surveyed the land in dispute. Against said judgment and decree dated 26-7-2002, appellant Sri Prakash Bhatt filed Appeal from Order No. 198 of 2002 in respect of civil appeal No. 59 of 2001 arising out of the civil suit No. 51 of 2000 and another Appeal from Order No. 199 of 2002 in respect of civil appeal No. 60 of 2001 arising out of civil suit No. 13 of 1999. ( 4 ) BOTH the Appeals From Order were taken up together by this Court and on 16-9-2000 following order was passed :"learned counsel for the parties made a request jointly that a Conciliator be appointed under the amended Section 89 of the C. P. C. so that he may get this dispute settled on spot as the dispute is between neighbours. Learned counsel for the parties further made a request that Sri Nand Prasad, Advocate be appointed Conciliator, who shall settle the dispute outside the Court and shall file memorandum of settlement in the Court so that the case may be decided in terms of settlement. Since the Conciliator has been appointed, till the settlement is decided by the Conciliator outside the Court the further proceedings before the Court below is hereby stayed. "16-9-2002 sd/-P. C. Verma, J. In pursuance of the above order it appears that the Conciliator submitted his report dated 25-10-2002, which reads as under :-"report of the Conciliator (Nand Prasad, advocate, Nainital : i) Vide order dated 16-9-2002 passed by the Court I was appointed the Conciliator under Section 89 of the Code of Civil Procedure. ii) In order to acquaint myself with the facts of the case I collected copies of the pleadings from the parties and went through them. iii) After giving notice to the parties, I inspected the spot in the presence of the parties and theircounsel on 13-10-2002 from 2 pm to 4 pm. ii) In order to acquaint myself with the facts of the case I collected copies of the pleadings from the parties and went through them. iii) After giving notice to the parties, I inspected the spot in the presence of the parties and theircounsel on 13-10-2002 from 2 pm to 4 pm. Sri Satish Chandra Pant, advocate whom I had informed to remain present on behalf of the respondent No. 3 i. e. his wife, was not available at the time of inspection. iv) It is to be noted that the land on which the respondents No. 1 and 2 claimed their path 6 feet wide and about 35 feet in length, is asserted by the appellants to be the part of their land allegedly purchased long back by them. v) Considering the close relationship between the parties and time consumed in the litigation so far and also an indefinite future of the case, I put forth a proposal to the parties that the alleged piece of the land over which the path is claimed may be transferred by the appellants to the respondents no. 1 and 2 in consideration of some reasonable price. vi) The parties seemed to accept the proposal and the respondents No. 1 and 2 even orally informed me that they would pay not more than five thousand rupees as a consideration for the transfer of the alleged path land to them by the appellants. vii) However, lateron the respondent No. 1 and 2 resiled from their stand and declined to pay anything to the appellants. viii) The parties may still be persuaded to end the tedious litigation by way of an amicable settlement. 25-10-2002 sd/-Nand Prasad, Advocate conciliator ( 5 ) ON the basis of the above Report, both the appeals were decided on 18-2-2003 as under :-"the parties' counsel agreed that these appeals may be disposed of in terms of the report of the conciliator which has been treated to be a compromise deed between the parties. Therefore, these appeals are disposed of in terms of the report submitted by the conciliator. However, it is made clear that there shall not be any encroachment on the land of Smt. Asha Pant and Sri Sharat Chandra Tiwari and construction shall be made after the measurement of the land of the parties for which the parties shall apply before the Lake development Authority. However, it is made clear that there shall not be any encroachment on the land of Smt. Asha Pant and Sri Sharat Chandra Tiwari and construction shall be made after the measurement of the land of the parties for which the parties shall apply before the Lake development Authority. If the Surveyor is available with them the Lake Development authority then the survey shall be carried out otherwise the Lake Development authority shall request the S. D. M. concerned to provide Surveyor for the measurement of the land, so that the dispute between the parties may be settled in terms of the compromise. The survey shall be completed within 15 days. Thereafter, parties shall abide by the demarcation made by the Surveyor. All the cases pending relating to the dis-pute in these appeals are herby disposed of finally. 18-2-2003 sd/-P. C. Verma, J. In pursuance of the paragraph 2 of the aforementioned order dated 18-2-2003, a surveyor appears to have inspected the spot and submitted his report dated 1-9-2003 which is addressed to the Sub Divisional magistrate, Nainital and reads as under :- (Vernacular matter omitted. . . . Ed.) ( 6 ) EARLIER respondents No. 1 and 2 appear to have moved an application No. 3770 of 2004 for correction in decree in pursuance of the order dated 18-2-2003 whereby the appeals were disposed of. The said application was rejected vide order dated 28-8-2004, which reads as under : "heard learned counsel for the parties. The application is misconceived. Hence rejected. " 28-8-2004 sd/-P. C. Verma, J. ( 7 ) NOW, the two applications No. 5467 of 2004 and 5981 of 2004 have been moved under Section 151 read with Section 152 of the Code of Civil Procedure, 1908 for correction in judgment and decree. In application No. 5467 of 2004 it has been prayed that the respondents No. 1 and 2 be heard on the point of correction and decree so as to it conforms to the judgment dated 18-2-2003 under Order XLI Rule 35 of the Code of Civil Procedure. In application No. 5981 of 2004 it has been prayed that order dated 18-2-2003 be modified making the direction clear to the effect that the appellants Prakash Bhatt and others be asked to remove the obstruction from the footpath in question. In application No. 5981 of 2004 it has been prayed that order dated 18-2-2003 be modified making the direction clear to the effect that the appellants Prakash Bhatt and others be asked to remove the obstruction from the footpath in question. ( 8 ) ON aforesaid applications on 1-11-2004 following orders were passed :-"lay before Hon'ble the Chief Justice to nominate the Bench for this case. " 1-11-2004 sd/-P. C. Verma, J. Hon'ble The Chief Justice nominated this bench for the disposal of aforesaid applications. ( 9 ) THE scope under Section 152 of the code of Civil Procedure, 1908 is limited and the Court while amending the judgment and decree cannot sit as an appellate Court over its own orders. More particularly, Section 152 is confined only to the clerical and arithmetical mistakes in the judgment and decrees. Said section is being quoted below : "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. " ( 10 ) HOWEVER, when a prayer is made for correction in judgment and order under Section 151 of the Code of Civil Procedure, 1908 read with, its Section 152, it can be said that the Court can make corrections to make the order meaningful, provided the order is vague and leads to no meaning. In samarendra Nath Sinha v. Krishna Kumar nag, AIR 1967 SC 1440, the Apex Court has held that the errors arising from accidental slip can be corrected not only in decree drawn up but also in the judgment pronounced and signed by Court. In Lakshmi ram Bhuyan v. Hari Prasad Bhuyan, (2003)1 SCC 197 : AIR 2003 SC 351, the Apex court has held that the operative part of judgment should be clear and precise so that in case objections are raised later, a bare reading of the judgment and decree would be enough to show that the two agree with each other. In the light of aforesaid judgments of Apex Court, I am of the view that judgment and order passed by the Court must be meaningful. In other words, it should not be so vague as to disentitle the party from the fruits of decree. In the light of aforesaid judgments of Apex Court, I am of the view that judgment and order passed by the Court must be meaningful. In other words, it should not be so vague as to disentitle the party from the fruits of decree. It is pertinent to mention here that earlier a contempt petition No. 118 of 2004 was also filed by the respondent, Devki Nandan Bhatt against the appellants complaining non-compliance of the order dated 18-2-2003, but the same was rejected on 4-10-2004 on the ground that it cannot be said if the alleged contemner has committed wilful disobedience of the court's order as the same was not clear what is required to be done by the concerned party and within what period. A copy of the said order is annexed with the application No. 5981 of 2004. ( 11 ) COPY of the plaint of Civil Suit No 51 of 2000 shows that in Para 4, respondents (plaintiffs of said suit) have alleged 6 feet wide raasta land between the plots No. 4 and 5 on one side and plot No. 7-B of the other. In reply to this, appellants (the defendants of said case) have admitted in their written statement the existence of 6 feet wide raasta land by stating : (Vernacular matter omitted. . . . Ed.)That makes it established that 6 feet wide raasta was admitted to the parties. ( 12 ) NOW, if the Surveyors report is made part of the impugned order dated 18-2-2003, the decree would become meaningful and a specific direction may be given to the concerned party to remove the encroachment within the specific period. From the surveyor's report read with the map annexed thereto, quoted above it is clear that the appellant who is owner of plot No. 5 has encroached upon the disputed raasta land to the extent of 4 feet 9 inches in the West and 5 feet in the East by fixing an angle net. The judgment and order dated 18-2-2003 and decree filed thereto, therefore cannot be left unexecutable even after the surveyor's clear cut finding as to the encroachment nor the Court can remain a silent spectator as it is a right of the decree holder to get the fruits thereof. The judgment and order dated 18-2-2003 and decree filed thereto, therefore cannot be left unexecutable even after the surveyor's clear cut finding as to the encroachment nor the Court can remain a silent spectator as it is a right of the decree holder to get the fruits thereof. ( 13 ) IN the circumstances, in the interest of justice, it is necessary to clarify that in the order dated 18-2-2003 passed by this court in A. O. No. 198 of 2002 and 199 of 2002 the Surveyor's report dated 1-9-2003 alongwith the map, shall be part of it and the decree prepared therefrom. Accordingly, the applications No. 5467 of 2004 and 5981 of 2004 are disposed of with the direction that the appellant shall remove the encroachment, mentioned in the report dated 1-9-2003, of the Surveyor, made by fixing angle net over the 6 feet wide disputed raasta land to the extent of 4 feet 9 inches in the west and 5 feet in the East. The encroachment shall be removed within a period of one month by the present appellants, failing which the decree holder can get the decree executed through the trial Court. The order dated 18-2-2003 and the decree passed in pursuance thereof shall stand corrected accordingly. Order accordingly. --- *** --- .