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2024 DIGILAW 1017 (ALL)

Maqsood Ahmad v. Salma Bano

2024-04-09

NEERAJ TIWARI

body2024
JUDGMENT : Neeraj Tiwari, J. 1. Heard Sri Ashwani Kumar Mishra, learned counsel for petitioner and Sri Narendra Kumar Chaturvedi, learned counsel for respondents. 2. Present petition has been filed seeking following relief: “(i) Issue an order or direction in exercise of power conferred under Article 227 of the constitution of India setting aside the order dated 16.3.2017 passed by the Court of Small Cause in Suit of Small Cause No. 17 of 2017 and order dated 14.11.2017 passed by the District Judge, Gorakhpur in Revision No. 26 of 2017.” 3. Learned counsel for petitioner submitted that earlier petitioner has moved an application 97(c) dated 7.1.2016 in Small Cause No. 17 of 2017 for a direction to the plaintiff/respondents to produce some evidence in respect of material alteration in tenanted house. 4. It is next submitted that the said application was allowed vide order dated 9.12.2016 imposing the cost of Rs. 500/- to the applicant/defendant and the cost was also accepted by the plaintiff/respondents. Later on, plaintiff/respondents have moved application 119(c) dated 25.2.2017 for rectification of order dated 9.12.2016. In the said application, it is stated that from the perusal of order dated 9.12.2016, it is apparently clear that Court was inclined to 'reject' the application, but in operative portion, it has wrongly been typed as 'allowed'. The said application was considered by the Court concerned and the same was allowed vide order dated 16.3.2017 rectifying the typographical error in the earlier order dated 9.12.2016. 5. He firmly submitted that once an application is allowed imposing certain costs and costs is also accepted by the opposite party, the said order cannot be challenged and is barred by the principle of estoppel. 6. He further submitted that petitioner has challenged the order dated 16.3.2017 by filing Revision No. 26 of 2017, which was also rejected by the Revisional Court vide order dated 14.11.2017. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Krishan Kumar Khanna v. International Society For Krishna Consciousness, 2000 Law Suit (SC) 1371. 7. Per contra, Sri Narendra Kumar Chaturvedi, learned counsel for respondents submitted that from the perusal of order dated 9.12.2016, it is very much clear that since beginning to last, except in operative portion, Court was inclined to reject the application. 7. Per contra, Sri Narendra Kumar Chaturvedi, learned counsel for respondents submitted that from the perusal of order dated 9.12.2016, it is very much clear that since beginning to last, except in operative portion, Court was inclined to reject the application. Even in last line before the operative portion, Court has held that application 97(C) is liable to be rejected on cost, but due to typographical error in operative part, in place of 'rejection', word 'allowed' has been mentioned. Therefore, respondents have filed application 119(c) and Court concerned vide reasoned order dated 16.3.2017 accepted that it was typographical error and rectified the same exercising its power under Section 152 of CPC, 1908. After considering both the orders, Revisional Court has also opined that Court is having power to rectify its mistake at any stage. He lastly submitted that there is no illegality in both orders dated 16.3.2017 and 14.11.2017. 8. I have considered rival submissions advanced by learned counsel for parties and perused the records as well as judgment cited above. 9. Controversy before this Court is as to whether order dated 9.12.2016 is having typographical error or not and further Court can rectify the same or not. To conclude the controversy, it is required to quote complete order in question dated 9.12.2016 and the same is quoted below: 10. From the perusal of order dated 9.12.2016, it is apparently clear that Court was inclined to reject the application 97(c), but due to typographical error in operative portion, in place of word fujLr word Lohdkj has been typed and while correcting the same vide order dated 16.3.2017, Court concerned has held that if there is typographical error in the order, it can be rectified under the provisions of Section 152 CPC. Further, after going through the application 97(c) as well as order dated 9.12.2016, Revisional Court has also held that at any stage, order may be rectified. 11. Impugned order has been passed exercising power under Section 152 of CPC. For ready reference, Section 152 of CPC is quoted below: “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.” 12. For ready reference, Section 152 of CPC is quoted below: “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.” 12. After going through Section 152 of CPC, this Court is of the considered view that in case of any type of bona fide error including typographical error in the order, same can be rectified at any stage under the provisions of Section 152 of CPC. 13. So far as acceptance of cost is concerned, in present facts of case, that will not create any estoppel in favour of petitioner for detailed reasons given in foregoing paragraph. 14. Learned counsel for petitioner has placed reliance upon the judgment of Krishna Kumar Khanna (Supra) which is not applicable in the present case as the facts are entirely different as in that matter, complete order has been challenged, but here in this case, only application has been filed for rectification of typographical error of order dated 9.12.2016. 15. Therefore, under such circumstances, this Court is of the firm view that earlier order dated 9.12.2016 is having typographical error and same has been rightly rectified vide order dated 16.3.2017 which was also affirmed by the Revisional Court vide its order dated 14.11.2017. 16. Accordingly, writ petition lacks merit and is dismissed. 17. No order as to costs. 18. Respondents are directed to refund double amount of cost i.e. Rs. 1,000/- to the petitioner within two weeks from the date of this order, which was earlier imposed vide order dated 9.12.2016.