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2022 DIGILAW 639 (JK)

Sharad Kapoor v. Mani Chopra

2022-11-17

SANJEEV KUMAR

body2022
JUDGMENT : Sanjeev Kumar, J. 1. The petitioner herein invokes power of superintendence of this Court vested under Article 227 of the Constitution of India for setting aside the order passed by the learned 2nd Additional Munsiff Jammu ("the trial court") on 25.07.2022 whereby the application of the petitioner filed under section 152 of the Code of Civil Procedure seeking correction of an error in the judgment and decree dated 01.04.2022 has been dismissed. 2. The application, as is evident from the order impugned, is dismissed on the ground that the correction of error pointed out by the petitioner is not an error attributable to the court and, therefore, not covered by the provisions of Section 152 of the Code of Civil Procedure. 3. Impugned order is assailed by the petitioner inter alia on the ground that the trial court has placed a narrow interpretation on the provisions of Section 152 CPC, which provision is wide enough to take within its sweep the correction of bona fide errors that may have been carried to the judgment from the pleadings of the parties. 4. Mr. Sanjay Kakkar, learned counsel appearing for the petitioner submits that apart from Section 152 CPC, Section 151 CPC gives inherent powers to the civil court to pass orders which may not be specifically provided in the Code of Civil Procedure, provided exercise of such power is warranted to do substantial justice between the parties. Mr. Kakkar has relied upon the judgment of the Supreme Court passed in "Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. & Ors." and submits that the Hon'ble Supreme Court has categorically held that the civil court in the exercise of power under sections 151 and 152 CPC is empowered to correct errors in the judgment/decree or order from any accidental slip or omission even when such accidental slip or omission may have emanated from the pleadings of the parties. 5. 5. Having heard learned counsel for the parties and perused the material on record, it is necessary to set out the pleadings of Section 151 and 152 of Code of Civil Procedure:- S.151 "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." S.152 "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." 6. Section 151 of the Code of Civil Procedure only recognizes the powers which are, otherwise, inherent in a court of civil jurisdiction and which can be exercised to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. In a way, Section 151 only supplements and does not override or evade other express provisions of the Code of Civil Procedure. Similarly, Section 152 CPC empowers a Civil Court to correct clerical or arithmetic mistake in the judgment/decree or orders or errors arising therein from any accidental slip or omission. What is held by the Supreme Court in "Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. & Ors." case in paragraph 18 to 22 is set out below:- "18. Section 152 of the Code of Civil Procedure empowers the Court to correct its own error in a judgment, decree or order from any accidental slip or omission. The principle behind the said provision is actus curiae neminem gravabit, i.e., nobody shall be prejudiced by an act of court. 19. Code of Civil Procedure recognizes the inherent power of the court. It is not only confined to the amendment of the judgment or decree as envisaged under section 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 affair. There cannot, however, be any doubt whatsoever that the court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. The courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion, should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the Court both in exercise of its power under section 152 as also under section 151 of the Code of Civil Procedure. Such a power of the court is well recognized. 20. In Samarendra Nath Sinha & Anr. v. Krishna Kumar Nag [ (1967) 2 SCR 18 ], this Court held: "Now it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. 'Every court,' said Bowen L.J. in Mellor v. Swira [30 Ch. 239]' has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the court so as to carry out its intention and express the meaning of the court when the order was made.- In L. Janakirama Iyer v. Nilakanta Iyer [ AIR 1962 SC 633 ] the decree as drawn up in the High Court had used the words 'mesne profits' instead of 'net profits'. In fact the use of the words 'mesne profits' came to be made probably because while narrating the facts, those words were inadvertently used in the judgment." 21. The question came up for consideration before the Calcutta High Court in Bela Debi (supra), wherein it was held 'It will thus be seen that there is a diversity of judicial opinion as to how far a Court can go in rectifying its own decree. Where, of course, the amendment is in order to carry out its own meaning, there is no doubt about the power of the Court in effecting such corrections (see In re St. Nazaire Co., (1879) 12 Ch. D. 88; Preston Banking Go. v. Allsop, (1895) 1 Ch. 141). Where, of course, the amendment is in order to carry out its own meaning, there is no doubt about the power of the Court in effecting such corrections (see In re St. Nazaire Co., (1879) 12 Ch. D. 88; Preston Banking Go. v. Allsop, (1895) 1 Ch. 141). Nor can it be disputed that it has power to rectify mistakes which are of a ministerial kind (see Mellor v. Swire, (1885) 30 Ch. D 239). But the difficulty arises when it is found that the mistake is not one of the Court but is a mistake of the parties themselves. Mistakes in the description of properties in deeds, is illustrative of this kind of mistake. It is the parties who have made the mistake, and the mistake is continued in the pleadings and the decree. According to one view, section 152 is confined to acts of the Court and, therefore, mistakes of parties made in the pleadings or deeds and documents evidencing the transaction cannot be corrected (Ramchander Sarup v. Mazhar Hussain, AIR (6) 1919 All 264). The second view is that under this section and section 151, plaint, judgment and decree all can be amended (see Shiam Lal v. Mt. Moona Kuar, AIR (21) 1934 Oudh 352 at p. 354; Ram Chandra v. Jamna Prosad, AIR (22) 1935 Oudh 92). A third view is that it is permissible under such circumstances to amend the decree and it is unnecessary to amend the plaint (Badri Pande v. Chhangur Pandey, AIR (20) 1933 All 102; Jamini Bala Biswas v. Bank of Chettinad Ltd., AIR (22) 1935 Rang. 522 at p. 523). Lastly, there is the view, which I have already noted, which goes to the extent of holding that the Court cannot only rectify pleadings and decrees but rectify documents evidencing the transactions themselves, upon which the suit was founded. I shall now state, what in my opinion, is the true meaning of Section 152, Civil P. C. I am not in favour of giving a narrow construction to Section 152. I do not agree that section 152 must necessarily refer to an 'accidental slip or omission' of the Court itself, or its ministerial officers. It does not say so in the section itself, and should not be interpreted as such. I do not agree that section 152 must necessarily refer to an 'accidental slip or omission' of the Court itself, or its ministerial officers. It does not say so in the section itself, and should not be interpreted as such. Where it is the Court's own accidental slip or omission, or that of its ministerial officers, there can be no doubt that the section applies. But it gives power to rectify any accidental slip or omission in a judgment, decree or order, and might include an accidental slip or omission traceable to the conduct of the parties themselves. But it must be an 'accidental slip or omission'. A mistake made by the parties in a, deed upon which the suit is founded, and repeated in the judgment, decree or order, may or may not be an 'accidental slip or omission.' Where it is clear, that such is the case, then I do not see why the Court cannot set it right. In doing so, what is going to be rectified is, the judgment decree or order, and it is not at all necessary to rectify either the pleadings or the deed. In making such corrections, however, the Court can only proceed on the footing that there could be no reasonable doubt as to what it really intended to say in its judgment decree or order. It cannot go into any disputed questions. If there is a particular description of a property in a deed, and a suit has been instituted on the strength of that description, and a decree passed, it is not permissible in proceedings under section 152 to go into disputed questions as to what property was intended to be dealt with, by the parties in the deed. I agree with Gentle C. J. that such a question can only be dealt with, in appropriate proceedings under the Specific Relief Act (see T.M. Ramakrishnan Chettiar v. G. Ramakrishnan Chettiar, A. I. R. (35) 1948 Mad. 13). But it may so happen that the mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed its judgment, decree or order. For example, suppose in a conveyance a property is described as 24 Chowringhee Road, Bhawanipur'. 13). But it may so happen that the mistake is so palpable that nobody can possibly have any doubt as to what the parties meant or what the Court meant when it passed its judgment, decree or order. For example, suppose in a conveyance a property is described as 24 Chowringhee Road, Bhawanipur'. It would be clear to everybody what property was meant, and it cannot be seriously doubted that in abating that the property was in 'Bhawanipur', the parties had committed an 'accidental slip or omission'. In such a case, I would not go to the extent of holding that the Court has no power to correct the judgment, decree or order which has repeated the mistake. In doing so, the Court need not correct the pleadings or the document but its own decision. In my opinion, it is not necessary in such a case to amend the pleadings or to rectify the deed, therefore, no question arises as to whether the Court has power to do so. It is, however, quite clear that such cases must be of rare occurrence, and the scope thereof is severely limited. The power cannot be extended to the resolving of controversial points, and a decision as to what the parties intended or did not intent to do. Apart from this exceptional case, I hold that the Court cannot correct errors anterior to the proceedings before it. For such a purpose, the proper proceeding is by way of a suit under section 31, Specific Relief Act. To this extent, I agree respectfully with the view enunciated by Gentle C.J. in T.M. Ramakrishnan Chettiar v. G. Radhakrishnan Chettiar, AIR (35) 1948 Mad. 13 and the view expressed by Young J. in Shujaatmand Khan v. Gobind Behari, AIR (21) 1934 All 100 (2). Applying these principles to the facts of this case, I think that the rectification asked for is impossible. If there has been a mistake in the original agreement it is a mistake which is fundamental, and it is impossible without going into evidence, to decide as to what the parties meant. There are facts in favour of the contention put forward by either party and I cannot describe it as an error (if there is at all any error) as can be called "an accidental slip or omission " as contemplated in section 152. There are facts in favour of the contention put forward by either party and I cannot describe it as an error (if there is at all any error) as can be called "an accidental slip or omission " as contemplated in section 152. In any event, such slips or omissions cannot be rectified in proceedings under section 152 or even under s. 151 of the Code." 22. We, with respect, agree with the aforenoticed view." [Emphasis supplied] 7. From fair reading of Sections 151 and 152 of Code of Civil Procedure in the light of interpretation put on these provisions of the Hon'ble Supreme Court in the supra judgment, there is no doubt in my mind that both under sections 151 and 152 CPC, civil court is empowered to correct any clerical or arithmetic mistakes in the judgment/decree or orders that occur due to accidental slip or omission and this clerical or arithmetic mistake is not only restricted to the judgments or decrees or orders only but can be applied to a case where the error due to accidental slip or omission is traceable to the pleadings of the parties and carried to the judgment and decree that is eventually passed on the basis of such pleadings. However, in the garb of correcting mere clerical and arithmetic errors, a civil court cannot embark upon reviewing the order/judgment/decree passed by it for which a different remedy is available under the Code of Civil Procedure. No court can under the cover of Sections 151 and 152 of the Code of Civil Procedure can modify, alter or add to the terms of its original judgment/decree or order ("State of Punjab v. Darshan Singh" AIR 2003 SC 4179 and "Jayalakshmi Coelho v. Oswald Joseph Coelho" 2001 (4) SCC 181 .) 8. When the case in hand is examined in the light of legal position explained above, I find that the plaintiff committed a clerical error of mentioning the wrong dimension of the plot bearing no. 129, situate in Apna Vihar, Jammu, though the document i.e. lease deed in respect of the aforesaid plot placed on record indicated different dimensions i.e. 30'x60'. It appears that this error in respect of dimension of the plot was not noticed by the trial court and, accordingly, the judgment and decree was also passed in respect of plot bearing no. 129, Apna Vihar, Jammu measuring 40'x60'. It appears that this error in respect of dimension of the plot was not noticed by the trial court and, accordingly, the judgment and decree was also passed in respect of plot bearing no. 129, Apna Vihar, Jammu measuring 40'x60'. The decree should have been in respect of plot no. 129, Apna Vihar, Jammu measuring 30'x60'. It is, thus, a bona fide mistake that came to be committed by the plaintiff in the cause-title by the complaint that was carried to the judgment and decree passed by the trial court in the suit. 9. The trial court has not appreciated the fact that Section 152 C.P.C is not only restricted to the correction of clerical errors that occur due to accidental slip or omission but can be invoked for correction of errors that may emanate from the pleadings and travel to the judgment and decree that is passed by the civil court in the matter. The trial court also did not take note of the fact that apart from Section 152, Section 151 of the Code of Civil Procedure recognizes the powers inherent in a civil court to be exercised to serve the ends of justice and to do complete justice between the parties. It was a fit case where by the trial court should have exercised its inherent powers to undo the injustice that had occasioned to the parties due to a clerical mistake occurred due to accidental slip/omission. 10. In view of the above, this petition is allowed. The order impugned passed by the civil court is set aside and the judgment and decree dated 01.04.2022 is corrected to substitute the dimensions of the plot indicated as 40'x75'ft by 30'x60'. The judgment dated 01.04.2022 and the consequent decree passed shall be deemed to have been corrected. To avoid any further confusion, the operative portion of the judgment which shall now read after the correction shall be as under:- "Accordingly suit of the plaintiff is allowed and the plaintiff is declared as the legal heir of the deceased. Late Sh. V.K. Kapoor S/o Late Sh. Shambhoo Nath Kapoor is entitled to succeed to the property in the shape of plot bearing no. 129, Apna Vihar, Jammu measuring 30'x60' along with house constructed thereupon. Party shall furnish an undertaking that there is no other legal heir entitled to this claim." 11. Late Sh. V.K. Kapoor S/o Late Sh. Shambhoo Nath Kapoor is entitled to succeed to the property in the shape of plot bearing no. 129, Apna Vihar, Jammu measuring 30'x60' along with house constructed thereupon. Party shall furnish an undertaking that there is no other legal heir entitled to this claim." 11. With the aforesaid modification of the judgment, the trial court shall prepare fresh decree, accordingly. 12. Disposed of.