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2014 DIGILAW 566 (PAT)

Madhu Sarin v. Madhuri Sareen

2014-05-06

MUNGESHWAR SAHOO

body2014
ORDER : (1) I have heard learned senior counsel, Mr. S.S.Dvivedi on behalf of the petitioner and the learned counsel, Mr. J.K.Verma on behalf of the opposite parties. (2) This Civil Revision application has been filed by the petitioner who was opposite party in the court below against the order dated 21.05.2011 passed by Civil Judge Ist(Sr. Division), Nawadah in Misc. Case No.4 of 2007 whereby the learned court below allowed the application filed by the O.P. Nos.1 to 4 for correction of compromise decree passed in Partition Suit No.147 of 1985. (3) It appears that the partition suit was filed by O.P. No.5 claiming her 1/4th share being Partition Suit No.147 of 1985. In the said suit, her father, brother and sister i.e. petitioners were the defendants. They filed joint compromise petition and in terms of compromise, Partition Suit No.147 of 1985 was disposed of and the decree was prepared and directed that the compromise application shall form part of the decree on 04.04.1986. Thus, the suit was finally decreed in terms of compromise. The petitioner filed application for mutation with respect to her share allotted in compromise decree i.e. 25 ½ decimals and further, 33 decimals by oral partition with respect to plot no.829, 830 and 831 of khata no.242 and 348. Thereafter, Misc. Case No.4 of 2007 was filed by opposite parties alleging that actually 1.09 acre of the aforesaid three plots was allotted to Subhash Chandra Sharin, the brother and husband of O.P. No.1 and the petitioner and O.P. No.5 were given only 15 ½ decimals each. There is a mistake in the compromise application, therefore, prayer was made for correction in the compromise petition. By the impugned order, the court below has allowed this application. (4) The learned senior counsel, Mr. Dvivedi appearing for the petitioner submitted that on the basis of compromise, the partition suit was disposed of. The aforesaid three plots jointly measures 1 acre 40 decimals. Out of the said land, in the compromise application, the parties agreed that 15 ½ decimals be allotted to respondent no.5 and 25 ½ decimals be allotted to the present petitioner and the rest land measuring 99 decimals was left joint. Accordingly, compromise application was filed, signed by all the parties and in terms of the said compromise, the suit was decreed. Accordingly, compromise application was filed, signed by all the parties and in terms of the said compromise, the suit was decreed. After more than 20 years, this application has been filed for correction of the compromise application to the effect that the petitioner was allotted only 15 ½ decimals and not 25 ½ decimals and further, that the remaining 99 decimals of three plots and the excess land measuring 10 decimals in the share of petitioner was in fact, allotted in favour of the brother, Subhash but there is a mistake in the compromise application and the court below by the impugned order decreased the share of the petitioner and allotted the same along with 99 decimals of the aforesaid three plots in favour of the O.P. Nos.1 to 4. According to the learned counsel, since it was a compromise application, the court has no jurisdiction to correct, modify or alter the same on the basis of any material whatsoever but the court below has done so in the present case without considering the fact that the court has inherent lack of jurisdiction to amend or correct the compromise application which was signed by the parties. Therefore, the Misc. Case itself was not maintainable. In support of his contentions, the learned counsel relied upon 2009 (2) PLJR 168 Supreme Court(Sneh Gupta v. Devi Sarup & Ors.) and submitted that compromise application is an agreement between the parties. Therefore, the terms and conditions thereof cannot be varied by the court unless all the parties compromise again. The learned counsel on the same line relied upon (1996) 11 Supreme Court Cases 678(Gupta Steel Industries v. Jolly Steel Industries Pvt. Ltd. and another). (5) On the other hand, the learned counsel, Mr. J.K.Verma submitted that it was the mistake in the compromise application and nothing else, therefore, the application for correction was filed. Even if Section 151, 152 or 153 are not applicable then also the court has the jurisdiction under Order 23 Rule 3 proviso to decide this question as to whether the suit has already been finally satisfied or not and the court below on the basis of the evidences and materials brought before the court recorded clear finding that in fact, there is a mistake in the compromise application. In such circumstances, in view of the decision of this Court, AIR 1984 Patna 344(Parmeshwar Lal and another v. Gokhula Nandan Prasad and others), the impugned order being a decree is appealable and this revision application is not maintainable. The learned counsel further submitted that since it is the mistake committed by the parties, the court has the jurisdiction to correct or add or subtract the areas of land on the basis of evidences adduced by the parties. (6) Here, it is admitted fact that the partition suit of the year 1985 was disposed of on the basis of compromise application. It is also admitted fact that plot nos.829, 830 and 831 measures 1 acre 40 decimals. It is also admitted fact that out of that 1 acre 40 decimals, the petitioner was allotted 25 ½ decimals in her takhta in the compromise application whereas her another sister, O.P. No.5 was allotted 15 ½ decimals. In the schedule of the compromise application, there is no statement regarding the remaining part of the area of aforesaid plots i.e. 99 decimals. According to the petitioner, there was oral partition and the petitioner was given 33 decimals out of this 99 decimals. Therefore, she applied for mutation. Then this Misc. Case was filed after 20 years by the opposite parties for correction in the compromise application/decree alleging that by mistake in the schedule of the petitioner, 25 ½ decimals has been mentioned in place of 15 ½ decimals and in fact, 99 decimals was agreed to be allotted in favour of father of O.P. Nos.1 to 4 but wrongly there is no mention about the said 99 decimals in the compromise application. It appears that both the parties adduced evidences in the court below and by the impugned order, the court below has held that there is a mistake in the compromise application. The question is whether the court has the jurisdiction to alter or modify the compromise application/decree particularly when all the parties are not agreeing to the terms and conditions which now the opposite parties are putting forward. (7) According to the learned counsel for the opposite parties, the court can decide this question under Order 23 Rule 3 proviso. The question is whether the court has the jurisdiction to alter or modify the compromise application/decree particularly when all the parties are not agreeing to the terms and conditions which now the opposite parties are putting forward. (7) According to the learned counsel for the opposite parties, the court can decide this question under Order 23 Rule 3 proviso. Proviso to Order 23 Rule 3 provides that “where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.” In view of this proviso, there must be allegation by one party regarding the adjustment or satisfaction of the suit and denial by the other side. Here, the case of opposite parties is that it is the mistake in the compromise whereas the case of the petitioner is that it is not a mistake. The analogy given by the opposite parties that one sister was given 15 ½ decimals, therefore, there was no occasion to give 25 ½ decimals to the petitioner. So far this analogy is concerned, it can be said otherwise also that it is a mistake in the share of the O.P. No.5 because since the petitioner was given 25 ½ decimals, the opposite parties could not have been given only 15 ½ decimals then why it should not be corrected to that effect. Moreover, it is a compromise decree and the terms and conditions were signed by the parties in the compromise application. (8) The Hon’ble Supreme Court in the case of Gupta Steel Industries(supra) has held that compromise decree cannot be interfered with or modified by court unless parties agreed to the same. Same view has been expressed by the Hon’ble Supreme Court in the case of Sneh Gupta(supra) case. In this case, the Hon’ble Supreme Court has held that a consent decree is merely an agreement between the parties with seal of the court superadded to it. (9) In view of the above settled principles of law whether without consent of the other signatories of the compromise application/decree, the court has the jurisdiction to alter the compromise application. In this case, the Hon’ble Supreme Court has held that a consent decree is merely an agreement between the parties with seal of the court superadded to it. (9) In view of the above settled principles of law whether without consent of the other signatories of the compromise application/decree, the court has the jurisdiction to alter the compromise application. The answer will be no and this matter is not covered under proviso to Order 23 Rule 3 C.P.C. So far correction of the compromise application or the decree is concerned, the Hon’ble Supreme Court in the case of U. P. S. R. T. C. v. Imtiaz Hussain, AIR 2006 Supreme Court 649 at paragraph 7 has held as follows: “7. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the tribunal cannot, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefore and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of Code even after passing of effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. Similar view was expressed by this Court in Dwaraka Das v. State of Madhya Pradesh and another ( 1999(3) SCC 500 ) and Jayalakshmi Coelho v. Oswald Joseph Coelho ( 2001 (4) SCC 181 ).” (10) In view of this above decision of the Hon’ble Supreme Court, the corrections contemplated are of correcting only accidental omissions and mistakes and not of omissions or mistakes which might have been committed by the court while passing judgment decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152. Here, the mistake alleged by the opposite parties are not apparent on the face of the record and the intentions of the parties cannot be gathered from the statements of the witnesses and other documents particularly when the document i.e. the agreement itself is clear on this point. It appears that the learned court below without considering the aforesaid settled principles of law laid down by the Hon’ble Supreme Court has decided the complicated question which is not apparent on the face of the record and presumed that it is a mistake committed by the parties although, the petitioner is vehemently opposing that it is not a mistake. It appears that the learned court below without considering the aforesaid settled principles of law laid down by the Hon’ble Supreme Court has decided the complicated question which is not apparent on the face of the record and presumed that it is a mistake committed by the parties although, the petitioner is vehemently opposing that it is not a mistake. (11) So far the maintainability matter is concerned, it may be mentioned here that the court below has passed the order under Sections 151, 152 of the C.P.C. and made correction which he has got no jurisdiction that too after more than 20 years and after the death of the father of the O.P. Nos.1 to 4 who was the signatory to the compromise application. (12) So far the decision relied upon by the learned counsel for the opposite parties is concerned, it may be mentioned here that in that case, there was modification of the compromise decree and the suit was not decided on the basis of compromise. It appears that after passing final decree subsequently another final decree was passed. Therefore, the decision is not applicable in the present facts and circumstances of the case. (13) In the result, this Civil Revision application is allowed. The impugned order is set aside. The parties may, if so advised, approach appropriate forum for redressal of their grievance.