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2012 DIGILAW 1139 (DEL)

KRISHAN KUMAR v. NEELAM DEVI

2012-03-23

INDERMEET KAUR

body2012
JUDGMENT INDERMEET KAUR, J. 1.The petitioner is aggrieved by the order dated 03.12.2004 whereby the prayer made in the application under Section 152 of the Code of Civil Procedure (hereinafter referred to as the Code) filed by the decree holder had been allowed and he had been permitted to file a fresh site plan giving correct details of the disputed premises. 2. Record shows that the present suit for possession and permanent injunction had been filed by the plaintiff; this suit had been decreed on 25.01.2002. The averments made in para 3 of the plaint specifically state that the premises comprise of one shop on the ground floor, one room and balcony situated on the first floor measuring about 25 to 30 sq. yards as depicted in red colour in the site plan had been leased out to the tenant. Corresponding para of the written statement has been perused. There is no dispute or denial to this averment. The actual area of the property leased out to the tenant i.e. the portion on the ground floor and portion on the first floor which was in occupation of the tenant was never the subject of dispute before the Trial Court. 3. Record shows that in the prayer clause of the plaint, the plaintiff has prayed for a decree of possession qua the suit property as depicted in red colour in the site plan. The judgment and decree dated 25.01.2002 had decreed the suit of the plaintiff qua the green portion as depicted in the site plan. The suit plan had been produced before the Trial Court as Ex. PW1/6. This site plan had in fact depicted only ground floor of the suit premises; first floor was not shown. Portion shown in red colour was in occupation of the landlord; the green colour portion is in occupation of the tenant; inadvertently, in the prayer clause the plaintiff had prayed for a decree for a red coloured portion in the site plan whereas the tenant was in occupation of green coloured portion. However, the decree had been passed qua the green colour portion; this was qua the ground floor as this site plant has not depicted the first floor premises. All these facts are undisputed and are part of the record. 4. However, the decree had been passed qua the green colour portion; this was qua the ground floor as this site plant has not depicted the first floor premises. All these facts are undisputed and are part of the record. 4. In the course of execution proceedings, the bailiff executed decree only qua the ground floor as the site plan shows only the ground floor portion; decree had been passed qua the ground floor portion and not qua the first floor portion. The plaintiff had accordingly filed an application under Sections 151 & 152 of the Code stating that this was a clerical mistake which is liable to be corrected. Impugned order had allowed his prayer. This is the grievance of the petitioner. 5. The scope of the powers under Section 152 of the code includes the powers of the court to correct clerical or arithmetical errors; mistakes which are accidental and not intentional and would not affect the merits of the case would fall within the parameter of Sections 151 and 152 of the Code. 6. The Supreme Court in AIR 2003 SC 643 titled as Prati bha Singh vs. Shanti Devi Prashad had an occasion to consider such a provision; in this case where the suit has two immovable properties had been decreed and property had not been properly identified; this being so noted by the plaintiff at a later date which was accordingly cured under the provision of Section 152 of the Code; the court had noted this being an inadvertent error and not effecting the merits it can be corrected by supplying the omission. Applying the ratio of the aforenoted judgment, it is clear that the impugned order allowing the prayer made by the decree holder suffers from no infirmity. 7. Reliance placed by the learned counsel for the petitioner upon the judgments reported in 2002 AIHC 1129 titled as Madan lal vs. Victor Denial, AIR 2001 SC 2316 titled as K. Rajamouli vs. A.V.K.N. Swamy, (1999) 3 SCC 500 titled as Dwarka Dass vs. State of M.P. and Anr., AIR 2001 sc 1084 titled as Jayalakshmi Coelho vs. Oswald Joseph Coelho is misplaced. 8. There is no dispute that where there is some misunderstanding or confusion, the same cannot be rectified. In this case there was no such confusion or misunderstanding; facts as noted above were clear. 8. There is no dispute that where there is some misunderstanding or confusion, the same cannot be rectified. In this case there was no such confusion or misunderstanding; facts as noted above were clear. The portion of the premises in occupation of the tenant was not in dispute. It was never the contention of the defendant that he was not in occupation of the portion on the first floor of the premises. Merely because of an inadvertence, if the plaintiff did not file compete site plan showing the first floor of the premises as well although it is specifically find mention in his plant, the impugned order correctly noted that this is liable to be corrected under the provision of Section 152 of Code. Parties could not be relegated to fresh litigation. 9. Petition is without any merit; it is dismissed.