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2021 DIGILAW 212 (JHR)

Reward Hi-rise Ltd. v. State of Jharkhand

2021-02-18

SUJIT NARAYAN PRASAD

body2021
JUDGMENT : Sujit Narayan Prasad, J. With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality. 2. The instant petition is under Article 227 of the Constitution of India wherein order dated 21.01.2013 passed by Civil Judge (Senior Division)-VII, Jamshedpur in Eviction Suit no. 2/99 has been questioned whereby and whereunder the petition dated 10.12.2012 filed under Sections 151 and 152 of the Code of Civil Procedure for incorporating the name of the writ petitioner in the plaint, judgment/decree, has been dismissed. 3. The brief facts of the case, as per the pleadings made in the writ petition, read hereunder as: The original plaintiff-Mr. Ajay Kumar B. Amin and others filed Eviction Suit No. 2/99 for eviction of respondent no. 2, the tenant, and recovery of arrears of rent for shop bearing No. 3 and 10, located on the ground floor of the building known as “Ansuya Sadan” situated at Q-Road, Bistupur, P.S. Bistupur, Jamshedpur. The writ petitioner approached to Mr. Ajay Kumar B. Amin and others and showed his desire to purchase the land in question along with structures standing thereon. By agreement to sale both the parties entered into agreement on 05.09.2011 for transfer of the aforesaid property in favour of the present petitioner. The property in question was purchased by the petitioner vide sale deed No. 7178 dated 14.11.2011 and thereafter he came to peaceful possession of the aforesaid property. The present petitioner being the owner of the aforesaid property filed an application before the Court below for impleading him as party in Eviction Suit No. 2/99. The Court below, after hearing both the parties, came to the conclusion that the present petitioner is the new landlord and the present Eviction Suit would be continued with original plaintiffs and also passed the order to implead the present petitioner as plaintiff along with original plaintiffs and further directed the Office to incorporate the name of the petitioner in the plaint, vide order dated 09.02.2012. The petitioner along with original plaintiff started appearing on the day to day proceeding in Eviction Suit No. 2/99 on the notion that his name has been incorporated by the office in the plaint. The petitioner along with original plaintiff started appearing on the day to day proceeding in Eviction Suit No. 2/99 on the notion that his name has been incorporated by the office in the plaint. The Court below, however, dismissed the Eviction Suit No. 2/99 vide order dated 21.09.2012 and thereafter, the petitioner applied for certified copy of the judgment and decree, upon receipt thereof, he came to know that his name has not been mentioned as plaintiff in the cause title of the judgment and decree. In the backdrop of these facts, the petitioner filed a petition dated 10.12.2012 stating inter alia therein that the name of the petitioner has not been mentioned as plaintiff in the cause title of the plaint, judgment and decree passed in Eviction Suit No. 2/99, which is a clerical mistake on the part of the Office of the Court below and as such it is necessary to rectify the error arising therein from any accidental slip or omission by incorporating the name of the petitioner. The respondent no. 2 herein filed response to the said petition on 18.12.2012. The Court below after hearing the parties passed order dated 21.01.2013 by dismissing the petition filed by the petitioner vide order dated 21.01.2013, which is under question in the present writ petition. 4. Mr. Rohitasya Roy, learned counsel for the petitioner has submitted that the rejection of petition filed under Sections 151 and 152 of the Code of Civil Procedure is absolutely illegal and improper in view of the fact that the impleadment of the petitioner as plaintiff along with original plaintiffs has already been ordered by the Court below vide order dated 06.02.2012 specifically directing the Office of the Court below to incorporate the name of the petitioner in the array of plaintiffs in cause title of the plaint of the Eviction Suit No. 2/99, but the office did not incorporate his name in the cause title of the plaint of Eviction Suit, therefore, it is omission on the part of the Office which will be said to be a clerical error or accidental slip and as such, petition filed under Section 152 of the Code of Civil Procedure is maintainable. He further submits that order dated 06.02.2012 passed in Eviction Suit No. 02/99 whereby the name of the petitioner was directed to be incorporated in the cause title of plant of Eviction Suit No. 2/99 was never challenged by respondent no. 2, as such the Court below, while dealing with the petition of the writ petitioner filed under Sections 151 and 152 of the Code of Civil Procedure, ought to have taken into consideration the fact that if petition filed under Section 152 of the Code of Civil Procedure will be allowed no prejudice will be caused to the respondent no. 2, the tenant, but without appreciating these aspects of the matter, the petition filed under Section 152 CPC was rejected. He further submits that it is the petitioner who will highly be prejudiced, if the impugned order dated 21.01.2013 is not quashed and the petition filed under Section 152 CPC is not allowed, as the petitioner has now become the landlord after transfer of the property in question by the original plaintiffs in his favour and due to non-insertion/incorporation of his name as plaintiff in pursuance to order dated 06.12.2012 passed by Court below in Eviction Suit no. 2/99, he even is not in a position to file an appeal against the judgment/decree passed in Eviction Suit No. 2/99 and, therefore, he has been deprived from the right to challenge the judgment/decree passed in the aforesaid Eviction Suit. 5. Mr. Manish Mishra, learned counsel for the respondent no. 2 has submitted that after passing of the judgment/decree the Court or the Tribunal becomes functus officio and thus is not entitled to vary the terms of the judgments, decrees and orders earlier passed. He submits that the corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which may have been committed by the Court while passing judgment/decree or order. He further submits that the omission sought to be incorporated in the present eviction suit goes to the merit of the case, which is beyond the scope of Section 152 CPC and therefore, the Court below has rightly rejected the said petition which suffers from no infirmity. 6. He further submits that the omission sought to be incorporated in the present eviction suit goes to the merit of the case, which is beyond the scope of Section 152 CPC and therefore, the Court below has rightly rejected the said petition which suffers from no infirmity. 6. This Court has heard learned counsel for the parties, perused the documents available on record as also the findings recorded by the Court below while rejecting the petition filed by the writ petitioner under Section 152 CPC. This Court, before questioning the legality and propriety of the impugned order, deem it fit and proper to discuss about the provisions as contained under sections 151 and 152 of the Code of Civil Procedure, which reads hereunder as : “151. Saving of inherent powers of Court— Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 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.” Section 151 of the Code of Civil Procedure deals with the inherent power of the Court under which the petition has been filed by the petitioner invoking the jurisdiction as conferred under section 151 of the Code of Civil Procedure, which deals with amendment of judgments, decrees or orders wherein it has been submitted that 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. The Hon’ble Apex Court in the case of Master Construction Co. (P) Ltd vs. State of Orissa & Anr. reported in AIR 1966 SC 1047 , wherein it has been observed that an arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing whereas the error arising or occurring from accidental slip or omission is an error due to careless mistake or omission on the part of the Court is liable to corrected. Similarly, the Hon’ble Apex Court in the case of Bai Shakriben (Dead) By Natwar Melsingh & Ors Vs. Special Land Acquisition Officer & Anr. reported in (1996) 4 SCC 533 has held that the omission to award additional amounts under Section 23(1-A), enhanced interest under Section 28 and solatium under Section 23(2) are not clerical or arithmetical mistake crept in the award passed by the Reference Court but amounts to non-award. Under those circumstances, the Reference Court was clearly in error in entertaining the application for amendment of the decree and is devoid of power and jurisdiction to award the amounts under Sections 23(2), 23(1-A) and 28 of the Act. Similar view has been taken by Hon’ble Apex Court in the case of State of Bihar & Anr. Vs. Nilmani Sahu & Anr. reported in (1996) 11 SCC 528 , while interpreting Sections 151 and 152 of the Code of Civil Procedure that the High Court erred in reconsidering the matter under the guise of arithmetical mistake and LPA would not lie against amendment of decree by the learned Single Judge, it is only revisable. The Hon’ble Apex Court in the case of Dwaraka Das Vs. State of M.P. & Anr. reported in (1999) 3 SCC 500 at paragraph 6 deals with Section 152 CPC, which as under : “6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of 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 court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. 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 for which the proper remedy for the aggrieved party is to file appeal or review application. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. 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 the CPC 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. In the instant case, the trial court had specifically held the respondent-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30-11-1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State.” It is evident from the aforesaid judgment that Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of 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. It is settled position of law that after passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. 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. If the omission sought to be corrected which goes to the merits of the case that is beyond the scope of Section 152 of the Code of Civil Procedure, for which the proper remedy for the aggrieved party is to file appeal or review application. 7. Therefore, this Court after going through the statutory provision as contained under Sections 151 and 152 CPC and also judgments referred herein above, is of the view that following principles amongst others, follow from the decision and legal provisions noted above: 1. Under Section 152 of the Code of Civil Procedure, the Court may make correction in judgment, decree or order in respect of the following: (a) Clerical mistakes. (b) Arithmetical mistakes. (c) Errors arising from any accidental slip or omission. 2. Error arising from any accidental slip or omission [mentioned in category (c) in Principle Number 1 above] may arise in the judgment, decree or order (i) on account of any accidental slip or omission in the judgment, decree or order itself, (ii) on account of any accidental slip or omission in the pleadings of the parties which travelled into the judgment, decree or order, (iii) on account of any accidental slip or omission in any document wherefrom it travelled into the pleadings and from the pleadings, the same travelled into the judgment, decree or order. 3. Error in the judgment, decree or order arising under any of the categories (i), (ii), or (iii) in Principle Number 2 above, may be corrected under Section 152 of the Code of Civil Procedure. It is further evident from the judgments referred above that the Court has power to permit amendment of pleadings and thereafter, make correction in the judgment, decree or order regarding accidental slip or omission. Further, power to correction under Section 152 Code of Civil Procedure should not be exercised when rights of third party get involved and are likely to be adversely affected. 8. The fact of the case in hand, which is not in dispute is that the present petitioner has entered into shoes of the plaintiffs after purchase of the property in question by virtue of sale deed No. 7178 dated 14.11.2011. 8. The fact of the case in hand, which is not in dispute is that the present petitioner has entered into shoes of the plaintiffs after purchase of the property in question by virtue of sale deed No. 7178 dated 14.11.2011. He has purchased the property during pendency of the Eviction Suit No. 2/99 and, therefore, he filed a petition for his impleadment as plaintiff to the said suit. The respondent no. 2, the tenant (defendant) filed rejoinder to the said petition stating therein that the petition filed by third person to be impleaded as plaintiff is not maintainable and further submission was made that the petitioner purchased the property with full knowledge regarding pendency of the suit and as such he is not a bona fide purchaser and his purchase is subject to the verdict of the Court below, therefore, the alleged purchase is invalid as the same is conveyed without taking leave of the Court and the petitioner cannot continue the suit with same cause of action as stated in the plaint. The Court below, after having heard learned counsel for the parties and taking into consideration the provisions of Section 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1947, which provides sale of premises by the landlord during pendency of the suit, the new landlord also joining in the suit for eviction. It further appears from the said order that the after allowing said petition vide order dated 06.02.2012 direction was issued upon the office to add the name of petitioner as plaintiff no. 2 in the suit. The relevant portion of order dated 06.02.2012 is reproduced herein below: “Heard. It is settled principle of law that under Section 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1947, sale of premises by the landlord during the pendency of the suit the new landlord also joining in the suit for eviction. The case for eviction would continue and the new landlord too shall also be impleaded as plaintiff and merely because the original landlord has transferable interest and the new landlord had stepped into his shoes. It cannot be said that the ground on which the original landlord could evict the tenant has vanished. The case for eviction would continue and the new landlord too shall also be impleaded as plaintiff and merely because the original landlord has transferable interest and the new landlord had stepped into his shoes. It cannot be said that the ground on which the original landlord could evict the tenant has vanished. In the present suit the landlord has sold the property consisting of the suit premises to the petitioner vide a registered deed of sale dt 05.11.2011 during the pendency of the suit. Hence in the facts and circumstances it is clear that the petitioner as per his prayer shall also be impleaded as the plaintiff alongwith the original plaintiff. It is therefore ordered that the petitioner is ordered to be added as plaintiff no. 2 in the present suit. As per his prayer, under order 22 Rule 10 C.P.C. Office is directed to incorporate the name of the petitioner as per order. Put up on 9.2.12 for argument on behalf of plaintiff.” (Own emphasis) It is admitted fact that order dated 06.02.2012 has never been questioned by respondent no. 2, the tenant and as such the same has attained its finality. After passing of order dated 06.02.2012, the matter was proceeded for hearing and finally vide order 21.09.2012 the eviction suit was dismissed. After obtaining the certified copy of the judgment/decree, it came to the knowledge of the petitioner that in spite of order dated 06.02.2012 the name of the petitioner has not been inserted either in the plaint or in the judgment and decree passed by the Court below and as such petitioner filed a petition under Sections 151 and 152 of the Code of Civil Procedure for making necessary correction treating the omission of the office as accidental one but the said petition was dismissed vide order dated 21.01.2013. 9. This Court, in the light of the aforesaid admitted facts, as has been derived from the record of the case, is to answer the following questions for proper adjudication of the lis: (I). Whether non-insertion of the name of the petitioner in the plaint, as per order dated 06.02.2012 passed by the Court below, is an accidental one? (II). Whether, the application filed under Section 152 of the Code of Civil Procedure for making necessary correction in the plaint, judgment/decree, since rejected, is if allowed shall cause any prejudice to respondent no. 2 (III). (II). Whether, the application filed under Section 152 of the Code of Civil Procedure for making necessary correction in the plaint, judgment/decree, since rejected, is if allowed shall cause any prejudice to respondent no. 2 (III). Whether non-insertion of the name of the petitioner as plaintiff no. 2 in the eviction suit, as per order dated 6.02.2012 will prejudice the case of the petitioner? 10. So far as first issue, ‘Whether non-insertion of the name of the petitioner in the plaint, as per order dated 06.02.2012 passed by the Court below, is an accidental one’ is concerned, it has been discussed in the preceding paragraphs by making reference of order dated 06.02.2012 whereby and whereunder on contest the petition for impleadment of the petitioner as plaintiff has been allowed by the Court below with direction upon the office for addition of the petitioner as plaintiff no. 2 in the plaint of the suit, but admittedly the office has not added the name of the petitioner in the memo of plaint of the suit in pursuance to order dated 06.02.2012. It is further admitted that order dated 06.02.2012 has not been questioned by respondent no. 2 and since it is a judicial order, which attained its finality, whereby direction was passed upon the office to make necessary correction by adding the petitioner in the plaint as plaintiff no. 2, but office having not discharged its duty, the same will amount to omission on the part of the office of the Court below and as such the same will be treated to be an accidental slip in view of the ratio laid down in the case of Master Construction Co. (P) Ltd vs. State of Orissa & Anr. (supra) wherein it has been observed that a clerical mistake is a mistake in writing or typing whereas the error arising or occurring from accidental slip or omission is an error due to careless mistake or omission on the part of the Court is liable to corrected, therefore, in view of order dated 06.02.2012, according to considered view of this Court since there is gross mistake on the part of the Court by not adding the petitioner as plaintiff no. 2 in pursuance to order dated 06.02.2012, it will come under the fold of accidental slip on omission which required to be corrected in view of the provisions as contained in Section 152 of the Code of Civil Procedure. So far as issue no. II, Whether, the application filed under Section 152 of the Code of Civil Procedure for making necessary correction in the plaint, judgment/decree, since rejected, is if allowed shall cause any prejudice to respondent no. 2, is concerned, according to considered view of this Court question of prejudice will only come when the party is not knowing about the factual aspect of the matter, but herein the petitioner filed petition for addition as plaintiff , which was allowed on contest vide order dated 06.02.2012, which has never been questioned by respondent no. 2 and, therefore, it will be said that addition of the name of the petitioner in pursuance to order dated 06.2.2012 passed in Eviction Suit No. 2/99 will not prejudice the case of respondent no. 2. So far issue no. 3, Whether non-insertion of the name of the petitioner as plaintiff no. 2 in the eviction suit, as per order dated 6.02.2012 will prejudice the case of the petitioner, is concerned according to considered view of this Court since the present petitioner has purchased the suit property and by virtue of that filed application for insertion of his name as plaintiff no. 2, which having been allowed on contest but due to gross mistake on the part of the Court the required insertion has not been done in the plaint and in consequence thereof his name has not come either in the plaint of the suit or judgment/decree of the suit. 2, which having been allowed on contest but due to gross mistake on the part of the Court the required insertion has not been done in the plaint and in consequence thereof his name has not come either in the plaint of the suit or judgment/decree of the suit. Now the question is that when the present petitioner has purchased the property and his purchase has been found to be correct under the provisions of Bihar Building (Lease, Rent & Eviction) Control Act, as would be evident from order dated 06.02.2012, which does not bar purchase of the property by the third person during pendency of the Eviction suit and in such circumstance since he is not party to the proceeding now he has lost in the suit, is not in a position to prefer appeal before the higher forum and as such due to non-insertion of his name in the plaint and consequently in the judgment and decree, his right to avail the statutory forum of appeal is being denied. In view of said fact that there cannot be any dispute that the right of the present petitioner is being prejudiced due to non-insertion of his name in the plaint and judgment/decree and thereby if the application filed by the petitioner would not be allowed, he will be subjected to prejudice. Issue No. III is answered accordingly. 11. In view thereof, this Court is of the view that the nature of correction sought for by filing petition under Section 152 of the Code of Civil Procedure cannot be said having the nature of order which is going to change the nature of judgment/decree since by insertion of his name either in the plaint or in the judgment/decree issue of merit is not going to be changed and thereby it will not cause any prejudice to the case of respondent no. 2. In that view of the matter, nature of the merit is not going to change by insertion of his name by allowing petition filed under Section 152 of the Code of Civil Procedure which cannot be said that the Court below has come functus officio after passing the judgment/decree. 12. 2. In that view of the matter, nature of the merit is not going to change by insertion of his name by allowing petition filed under Section 152 of the Code of Civil Procedure which cannot be said that the Court below has come functus officio after passing the judgment/decree. 12. Petition under Section 152 of the Code of Civil Procedure is meant for the purpose to make necessary correction even after passing of the judgment, if it is being asserted that there is a mistake, by way of mistake of calculation; a clerical mistake in writing or typing, error arising out of or occurred from accidental slip or omission due to gross mistake on the part of the Court, the same liable to be corrected, but the learned Court below, without appreciating the scope of provisions of Section 152 of the Code of Civil Procedure, has passed the order which cannot be said to be sustainable in the eyes of law for the reason, discussed herein above. 13. Accordingly, this Court in exercise of power conferred under Article 227 of the Constitution of India, is of the view that the said order is liable to be quashed, accordingly order dated 21.01.2013 is quashed and set aside. In consequence thereof, the Court below is directed to make necessary correction in the plaint and judgment/decree of Eviction Suit No. 2/99 by making necessary correction as per order dated 06.02.2012 passed by the Court below. 14. With the aforesaid observations and directions, the writ petition stands allowed. Petition allowed.