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2008 DIGILAW 900 (ORI)

KASTURA SAHU v. SUSHILA SETH

2008-09-30

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - This is an application under Article 227 of the Constitution of India. Challenge has been made in this writ petition to the order dated 5.12.2006 passed by the learned Civil Judge (Senior Division), Bolangir in Final Decree Title Suit No. 45 of 1979 allowing the application of the opposite parties and directing the office to carry out the correction of the Schedule-B property from an area of Ac.12.31 decs. to Ac.58.99 decs. The said order was challenged by the Petitioners before the learned District Judge, Bolangir in Civil Revision Petition No. 10 of 2006 who by order dated 23.2.2007 dismissed the civil revision as not maintainable after the amendment of the CPC in the year 2002. 2. The facts, as narrated in the records, are as follows: The Petitioners are Defendants in Final Decree Title Suit No. 45 of 1979 which was filed by one Dasa Seth in the court of Subordinate Judge, Bolangir (now Civil Judge (Senior Division). After his death, his legal heirs were substituted in the suit. The original plaint was filed for partition of Ac.12.31 decimals of land described in Schedule-B. The suit was decreed on 8.5.1991 and the decree was drawn up on 17.6.1991. It was sealed and signed on 20.6.1991. In the decree, the area of Schedule-B property was mentioned as Ac.12.31 decimals under Holding No. 64 of 1936. The same was challenged by the Defendant No. 1 Petitioner No. 1 in Title Appeal No. 41/23 of 1991/1992 which was dismissed and the decree was confirmed. Thereafter, final decree proceeding was initiated. While the final decree was in progress, the Plaintiffs filed a petition on 14.11.2006 u/s 152 of the CPC in the court of learned Civil Judge (Senior Division), Bolangir with a prayer to correct the Schedule-B lands from Ac.12.31 decs. to Ac.58.99 decimals. The Defendants 1 and 2 filed their objection on 22.11.2006 claiming rejection of the same on the ground that the petition was not maintainable since the said mistake was neither a clerical mistake nor an accidental omission. The learned Civil Judge allowed the aforesaid application on 5.12.2006 directing its Office to carry out the correction of Schedule-B property from an area of Ac.12.31 decs. to Ac.58.99 decs. The learned Civil Judge allowed the aforesaid application on 5.12.2006 directing its Office to carry out the correction of Schedule-B property from an area of Ac.12.31 decs. to Ac.58.99 decs. Against the said order, Civil Revision Petition No. 10 of 2006 was filed before the learned District Judge, Bolangir who by order dated 23.2.2007 dismissed the same on the ground of maintainability as well as on merits holding that the lower court can correct the decree by invoking power u/s 152 of the Code of Civil Procedure. The learned District Judge further held that the mistake which had crept in was rather a mistake on the part of the court than any latches which could have been attributed to the party. The Plaintiff amended the plaint, filed the amended plaint in time, raised the valuation of the suit, and incorporated more area, i.e. Ac.58.91 decimals of land. Since the mistake which crept in was due to inadvertence on the part of the court, the court has to correct the decree when it was brought into its notice. As such, the learned Civil Judge did not commit any mistake in correcting the decree invoking power under Article 152 of the Code of Civil Procedure. 3. The Learned Counsel appearing for the Petitioners submitted that the Plaintiffs' suit was decreed in the year 1991 and in the appeal preferred against the same, the preliminary decree was confirmed and the said decree attained its finality. The lower court decree merged with the decree of the appellate court. Therefore, the mistake, if any, can be rectified only by the appellate court and not by the lower court because it was without jurisdiction and judicial decorum. However, even though the decree holders contested the decree in the appellate court, they did not file cross-objection under Order 41, Rule 22 of the CPC and the mistake as alleged by the Plaintiffs was allowed to continue even after the order of the lower appellate court. During final decree proceeding, the Amin report was submitted in which the Amin expressed his inability to demarcate the land. Thereafter, the decree holders filed an application u/s 152 of the Code of Civil Procedure, i.e., and after 14 years of the preliminary decree. As the conduct of the Plaintiffs, as aforesaid, was clearly negligent, the mistake could not be said as an accidental omission. Thereafter, the decree holders filed an application u/s 152 of the Code of Civil Procedure, i.e., and after 14 years of the preliminary decree. As the conduct of the Plaintiffs, as aforesaid, was clearly negligent, the mistake could not be said as an accidental omission. As such, the impugned order is liable to be set aside. The Learned Counsel appearing for the Petitioners further submitted that by the impugned order grave injustice has been caused to the Petitioners. 4. The Learned Counsel appearing for the opposite parties-Plaintiffs, on the other hand, submitted that at the initial stage of the suit the mistake was discovered and amendment was sought for incorporating the exact area in the suit schedule and the area of "Ac.58.91 decimals" was substituted in place of "Ac.12.31 decimals". The amendment was allowed and consolidated plant was filed before the decree was passed. Though the same was reflected in the judgment, due to clerical error and accidental omission it was not reflected in the decree and such clerical error and accidental omission was discovered during final decree proceeding. Therefore, on the application of the Plaintiffs the same was corrected. As such, the Amin Commissioner was appointed and he had already affected the partition in the meantime and the suit land was allotted to one of the co-sharers. Since stay was granted by this Court, they were not able to take the delivery of possession. In support of his contention, he cited a decision of the Supreme Court in the case of U.P.S.R.T.C. Vs. Imtiaz Hussain, wherein the apex Court held that an act of the Court shall prejudice No. man. An unintentional mistake of the Court which may prejudice the cause of any party must and alone can be rectified. The apex Court further held that to illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No. new arguments or re-arguments on merit can be entertained to facilitate, such rectification of mistakes. In the case of Niyamat Ali Molla Vs. No. new arguments or re-arguments on merit can be entertained to facilitate, such rectification of mistakes. In the case of Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and Others, the apex Court held that the CPC recognizes the inherent power of the Court. It is not only confined to the amendment of the judgment or decree as envisaged u/s 152 of the Code but also inherent power in general. The Courts also have duty to see that the records are true and present the correct state of affairs. There cannot, however, be any doubt whatsoever that the Court cannot exercise the said jurisdiction so as to review its judgment. 5. From the above ratio of the decisions of the apex Court, it is crystal clear that when the mistake which crept in was due to unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit, it can be corrected exercising the power u/s 152 of the CPC and the Court is not powerless to correct its own mistake in such circumstances. 6. In the present case, as stated in the foregoing paragraphs, the impugned judgment reveals that though the area of the suit property was stated as Ac.58.99 decs., the same was not reflected in the decree. It was totally an accidental omission/unintentional mistake on the part of the court which crept in the decree. Therefore, the learned Subordinate Judge corrected it in exercise of the power u/s 152 of the CPC and the learned District Judge while hearing the revision rightly came to the conclusion that the civil revision was not maintainable against the impugned order. However, the learned District Judge being the hierarchy of the civil court observed regarding the merits of the case. 7. As there is No. error of jurisdiction and the findings arrived at by the courts below are not perverse, this Court is not inclined to interfere with the impugned order exercising the power under Article 227 of the Constitution of India. 8. In the result, the writ petition is dismissed. Final Result : Dismissed