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2024 DIGILAW 126 (JK)

Sakshi Khurana, D/o. Lt. Rohin Khurana v. Raj Kumar, S/o Sh. Teerath Ram

2024-03-15

JAVED IQBAL WANI

body2024
ORDER : 1. Supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution of India is being invoked by the petitioner for setting aside order dated 14.09.2013 (for short ‘the impugned order’) passed by the court of 1st Additional Munsiff (Forest Court), Jammu (for short ‘the trial court’). 2. The facts giving rise to the filing of the instant petition would reveal that the respondent No. 1 herein, filed a suit for ejectment of a premises compromising of one shop in the ground floor, four rooms, store, kitchen, bathroom and veranda on the first floor of a building situated at Mohalla Raghunath Pura, Jammu, initially against the grandfather of the petitioner herein, namely, Kartar Singh Khurana. 3. During the pendency of the suit, the said Kartar Singh Khurana died whereupon his legal heirs including the father of the petitioner herein came to be substituted and impleaded as defendants. 4. The suit came to be decreed by the trial court in terms of the judgment and decree dated 30.11.2012, the operative portions of which judgment and decree being relevant herein are extracted and reproduced hereunder:- “Judgment: In view of the detailed findings returned on issues no. 3 to 7 the suit of the plaintiff deserves to be decreed which is accordingly decreed with cost whereby defendants are ordered to be evicted from the suit premises wholly described in the body of the plaint for further decree of mandatory injunction for payment of arrears of rent of Rs. 1800/- up to the date of filing of suit and future rent @ the rate of Rs. 150/- till vacation of suit premises.” “Decree: Defendants are ordered to be evicted from the suit premises wholly described in the body of the plaint with further decree of mandatory injunction for payment of arrears of rent of Rs 1800/- up to the date of filing of the suit and future rent @ Rs 150/- till vacation of the suit premises.” 5. The judgment and decree dated 30.11.2012 supra came to be called in question in the 1st appeal filed by the defendants in the Court of Principal District Judge, Jammu on 29.03.2013, which appeal came to be dismissed on 21.02.2017 upholding the judgment and decree passed by the trial court, whereafter a civil 2nd appeal as well came to be filed by the defendants before this Court being C2A No. 15/2017 which appeal, too came to be dismissed, however, for non prosecution on 26.04.2018. 6. The plaintiff/respondent No. 1 herein thereafter filed an execution petition before the court of Munsiff, Jammu, that is the Court, which passed the judgment and decree, supra, however, the said execution petition came to be transferred to the court of 1st Additional Munsiff (Forest Magistrate), Jammu (for short ‘the executing court’) on account of inability expressed by the Presiding Officer of the said court. 7. During the course of the pendency of the execution petition supra before the executing court, the plaintiff/respondent No.1 herein moved an application seeking amendment of judgment and decree dated 30.11.2012 (supra) for effecting corrections to the location/area of the suit property to be as Partap Garh, Jammu instead of Raghunath Pura, Jammu, on the premise that the said error about the location of the suit property had crept in the judgment and decree accidently as also in the suit filed by respondent No. 1 herein wherein the said judgment and decree came to be passed. 8. The application supra came to be opposed by the defendants/non applicants by filing objections thereto, inter alia, on the premise that the application is not maintainable and that the corrections sought in the application are not warranted as the court, while passing the judgment and decree, referred to the description and location of the suit property as had been provided by the plaintiff /respondent No. 1 herein in the plaint and also for the reason that the judgment and decree stands upheld in the appeal by the court of Principal District Judge, Jammu in terms of judgment dated 21.02.2017, as such, the application would not lie before this Court and that the amendment/correction sought in essence is being sought in the suit under the cover of error in the judgment and decree. 9. 9. The executing court upon considering the application and the objections filed thereto in terms of the impugned order, allowed the same directing the amendment of the plaint by incorporating the location of the property as Mohalla Partap Garh, Jammu instead of Mohalla Raghunath Pura, Jammu and also consequently ordered said change in the judgment and decree with further change in the execution petition by making a table amendment thereto. 10. The impugned order is being challenged by the petitioner being successors-in-interest of one of the defendants in the instant petition, inter alia, on the grounds that the impugned order has been passed in breach of the provisions of section 152 of CPC inasmuch as, after a considerable period of time when the basic judgment and decree had assumed finality after the same came to be upheld by the appellate court in terms of the judgment dated 21.02.2017 and that the court below exercised power under section 153 CPC as well illegally. 11. Objections to the petition have been filed by the plaintiff/respondent No. 1 herein wherein the petition is being opposed, inter alia, on the premise that the jurisdiction invoked by the petitioner under Article 227 of the Constitution of India is not warranted and that the court below passed the impugned order legally and validly in order to secure the ends of justice. Heard learned counsel for the parties and perused the record. 12. Before proceeding to advert to the rival submissions of the appearing counsel for the parties, it would be appropriate to refer to the provisions of section 152 and Section 153 of the Code of Civil Procedure hereunder. “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.” What emanates from a plain reading of section 152 supra being an enabling provision is that it declares that a clerical or arithmetical mistakes in the judgments, decrees or orders arising from an accidental slip or omission may be corrected by the Court either on an application of any of the parties or suo moto. However, law is settled that before exercising such power, the Court must be satisfied that the order or the decree contains or omits something which was intended to be otherwise suggesting that while passing the degree, the Court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or the order due to a clerical, arithmetical error or accidental slip. The underlying object of the provision seemingly that an act of the court shall prejudice none and that it is the duty of the court that its record is true and represents the correct state of affairs. This position of law has been laid down by the Apex Court in case titled as “Jayalakshami Coelho vs. Oswald Joseph Coelho” reported in 2001 (4) SCC 181 . Section 153 provides for general power to amend and reads as follows: “153. General power to amend.— The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding”. A bare perusal of the provisions of the section 153 supra tend to show that it confers general power on the Court at any time to amend any defect or error in any proceedings in a suit for the purposes of determining the real controversy, questions or issues between the parties to the proceedings. 13. Thus, what emerges from the aforesaid provisions of Sections 152 & 153 of the Code is that while section 152 of the Code applies after a judgment, decree and order has been passed or made, the section 153 of the Code applies to the pending proceedings. 14. 13. Thus, what emerges from the aforesaid provisions of Sections 152 & 153 of the Code is that while section 152 of the Code applies after a judgment, decree and order has been passed or made, the section 153 of the Code applies to the pending proceedings. 14. Keeping in mind the aforesaid position of law and reverting back to the case in hand, admittedly the plaintiff/respondent 1 had detailed out the description of the suit property in the plaint showing the location of the suit property at Raghunath Pura, Jammu and continued with the said location of the suit property throughout even after obtaining the judgment and decree from the appellate court being the Principle and District Judge, Jammu wherein the judgment and decree passed by the trial court came to be assailed by the defendants and even thereafter, before this Court wherein a civil 2nd appeal (supra) came to be preferred by the defendants against the judgments/decrees passed by the trial court as also by the appellate court. The plaintiff/respondent 1 herein during the entire course of the proceedings did not at any point of time seek amendment in the plaint qua the said location of the suit property. 15. The moot question that arises for consideration of this Court would be as to whether under these circumstances, the plaintiff/respondent 1 herein could have sought correction of the judgment and decree qua the actual location of the suit property in absence of any amendment sought in this regard in the suit and as to whether the court below while exercising power under section 152 could have allowed the correction of the location of the suit property to be carried out firstly in the plaint and consequently in the judgment and decree as also the execution petition filed by the plaintiff/respondent 1 herein inasmuch as also whether the court below could have exercised sou moto power in this behalf under section 153 of the Code. 16. 16. No doubt the power of the court to correct the errors in the judgments, decrees and orders is vested in the Court under section 152 exercisable either suo moto or on the application of a party, yet that correction has to be effected only and only in judgments, decrees or orders having been passed and not in the pleadings and under section 153 such corrections are permitted to be made in pending proceedings alone. In the instant case, however, the plaintiff/respondent 1 herein under the cover of seeking correction qua the location of the suit property in the judgment and decree by invoking the provisions of the section 152 in essence sought correction of the same in the plaint as well which was never pending before the said court and the executing court without having any power to effect such correction in the pleadings of the parties under the provisions of section 152 could not have allowed the said correction under the cover and guise that the correction is being sought in the judgment and decree passed by it. The executing court as well could not have even exercise power under and in terms of the provisions of the section 153 of the Code, which power being general in nature allows a court to amend any defect or error in any proceedings as such power is available to court only in a pending proceedings and indisputably there was no proceedings pending before the Court below wherein correction have had been sought. 17. 17. In view of the aforesaid position of law inasmuch as having regard to the facts and circumstances of the case the executing court below undoubtly has committed a grave error in entertaining the application filed by the plaintiff/respondent 1 herein inasmuch as passing of the impugned order while taking recourse to the provisions of the section 152 & 153 of the Code, which power otherwise also could not have been exercised by the said court in presence of the fact that the judgment and decree in question have had got merged into the judgment and decree passed by the 1st appellate court wherein the judgment and decree passed by the trial court had been thrown challenge to by the defendants and, thus, if any power in terms of section 152 have had to be exercised in the matter same ought to have been exercised by the 1st appellate court and not even this Court wherein the judgments and decrees have had been challenged in civil 2nd appeal as said civil 2nd appeal filed by the defendants as the said civil 2nd appeal had not been decided on merits but had been dismissed for non-prosecution. 18. What has been observed, considered and analyzed hereinabove, supervisory power vested in this Court is required to be exercised, in that the court below has grossly erred in the matter and in the process caused failure of the justice. 19. Resultantly, petition is allowed and the impugned order is set aside.