C.R. No. 5124 of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5124 of 2006 (O&M) Date of decision : January 23 ,2009 Sarwan Kumar and another .. Petitioners v. Kiran Pal and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Adarsh Jain, Advocate, for the petitioners. Mr. Y. P. Khullar, Advocate, for respondent No. 4. Rajesh Bindal J. Challenge in the present petition is to the order passed by the learned Civil Judge (Junior Division), Palwal, dated 7.8.2006 whereby the application filed by the petitioners for correction of judgment and decree dated 9.11.2000 passed by the Civil Court was dismissed. Briefly the facts are that the petitioners filed a suit for possession and for permanent injunction against the respondents claiming that they are owners in possession of residential plot as detailed in plaint which was purchased by them vide registered sale-deed dated 29.3.1988. It was alleged that defendant No. 1 had encroached upon an area to the extent of 11 square yards; defendant No. 2 had encroached upon to the extent of 3-2/3 square yards; defendant No. 3 had encroached upon to the extent of 60½ square yards; and defendant No. 4 -Hira Lal had encroached 30 square yards of the plot. The plot forms part of khasra No. 999. The local commissioner was appointed for demarcation of the property who corroborated the claim made by the petitioners in the plaint. On the basis of the report of the Local Commissioner and the evidence led by the parties, the trial court decreed the suit and permanent injunction was granted restraining the respondents/defendants from interfering or dispossessing the petitioners from the suit land and a decree for possession against defendants no. 1 to 3 for the area as mentioned above was also passed. C.R. No. 5124 of 2006 [2] Aggrieved against the judgment and decree of the trial court, respondents no. 1 and 2/ defendants No. 1 and 2 being satisfied did not file any appeal before the Lower Appellate Court. However, respondents no. 3 and 4/ defendants No. 3 and 4 being dissatisfied with the judgment and decree of the trial court filed appeal before the learned Lower Appellate Court where the judgment and decree of the trial court was upheld vide judgment and decree dated 4.3.2002. The petitioners having noticed error/ accidental omission in the judgment and decree of the trial court dated 9.11.2000 filed application for correction thereof, whereas respondents No. 3 and 4/defendants No.3 and 4 filed the appeal. The judgment and decree of the trial court in favour of the petitioners was upheld by the lower appellate court. The application filed by the petitioners for correction was rejected vide impugned order dated 7.8.2006. It is this order of the learned Civil Judge (Junior Division), Palwal, which is impugned in the present petition. Opening his arguments, learned counsel for the petitioners referred to claim made by the petitioners before the trial court in the plaint as noticed in the decree by the trial court and paras 11 and 12 of the judgment whereby the fact regarding encroachment by the respondents/defendants and the prayer made by the petitioners has been noticed. He further submitted that since the entire discussion in the judgment of the trial court was in the light of the fact that the Local Commissioner had found that all the four defendants had encroached upon the area as claimed by the petitioners in the suit, he did not file any appeal against the judgment and decree as the relief prayed for had been granted except the accidental omission of non-mentioning of encroachment by respondent No. 4. However, considering the fact that decree had been passed against respondent No. 4/ defendant No. 4 and he had been found to be in possession of the area, which is owned by the petitioners, filed appeal before the learned Lower Appellate Court, which was dismissed. He further referred to the finding recorded by the learned Lower Appellate Court in para 13 of the judgment where the contention of respondent No. 4/ defendant No. 4 has been noticed to the effect that he claimed ownership of khasra No. 998 to the extent of 2/75 share i.e. 2 marlas situated within the municipal limits of Palwal. It was further observed that respondent no. 4/ defendant No.4 did not have any concern with the land comprised in khasra no. 999 which was subject matter of appeal. Referring to the above pleadings and observations made by the learned Appellate Court in the appeal filed by respondent No. 4/ defendant No. 4, and relying upon the judgments in Muktar Steels (P) Ltd. Co. vs Hind Ro-rolling C.R. No. 5124 of 2006 [3] Industries Ltd., 2005 (11) SCC 399, Pratibha Singh and another vs Shanti Devi Prasad and another , 2003 (2) SCC 330 and Jayalakshmi Coelho vs Oswald Joseph Coelho, (2001) 4 SCC 181, it is submitted that the omission in the judgment and decree of the trial court with regard to the relief portion against respondent no. 4/defendant No. 4 being accidental omission deserves to be corrected in the application filed by the petitioners under Section 152 CPC. On the other hand, learned counsel for respondent No. 4 submitted that the impugned order passed by the learned court rejecting the application filed by the petitioners for correction of the judgment and decree, cannot be faulted with as whatever relief though claimed but not granted is deemed to have been rejected. The scope of Section 152 CPC is only for correction of arithmetical or clerical mistakes and the relief prayed for by the petitioners did not fall within the scope of Section 152 CPC. What the petitioners claimed was, in fact, substantial relief under the garb of application under Section 152 CPC. The trial court could not sit over in appeal against its own judgment and if the petitioners were aggrieved against the judgment of the trial court granting no relief against respondent No. 4, the remedy was to file appeal before the learned Lower Appellate Court and not application under Section 152 CPC. To substantiate the scope of Section 152 CPC, reference was placed upon Dwarka Das vs State of Madhya Pradesh and another, 1999 AIR SCW 663, Jagdish Chand Gupta and another vs Dr. Rajinder Parshad and others, (2002-2) 131 PLR 315 and Deputy Director Land Acquisition vs Malla Atchinaidu and others, 2007 (1) RCR (Civil) 894. Before I proceed to discuss the facts of the present case, I deem it appropriate to discuss the scope of Section 152 CPC, on which much arguments have been addressed by learned counsel for the parties and judgments have also been cited. The basis of the provision under Section 152 CPC is found on the maxim actus curiae neminem gravabit i.e., an act of the court shall prejudice no man. The judgment, which is quite close to the facts in the present case is Jayalakshmi Coelho's case (supra), wherein Hon'ble the Supreme Court opined that any error occurred in the decree on account of arithmetical or clerical error or accidental slip can be rectified by the court. The principle behind this is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the decree must be properly reflected therein, otherwise it would be antithesis to the principle of advancing the cause of justice. The accidental slip or omissions should be attributable to the court which though the court intended to say but omitted. No new arguments or rearguments are required C.R. No. 5124 of 2006 [4] for such correction. Paragraphs 13 and 14 of the aforesaid judgment can very well be referred to. The same are extracted below: “13. So far as the legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 CPC, any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases on the point may be made: The basis of the provision under Section 152 CPC is found on the maximum actus curiae neminen gravabit i.e. An act of court shall prejudice no man (Jenk Cent-118) as observed in a case reported in Assam Tea Corpn. Ltd. v. Narayan Singh, AIR 1981 Gau 41. Hence, an unintentional mistake of the court which may prejudice the cause of any party must be rectified. In another case reported in L. Janakirama Iyer v. P. M. Nilakanta Iyer, AIR 1962 SC 633, it was found that by mistake the words “net profit” were written in the decree in place of “mesne profit”. This mistake was held to be inadvertent. In Bhikhi Lal v. Tribeni, AIR 1965 SC 1935 it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in Master Construction Co. (P) Ltd. v. State of Orissa, AIR 1966 SC 1047, it has been observed that arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits are required for such rectification of mistake. In a case reported in Dwaraka Das v. State of M.P., (1999) 3 SCC 500, this Court has held that the correction in the order or decree should be of C.R. No. 5124 of 2006 [5] the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial court had not granted the interest pendente lite though such a prayer was made in the plaint but on an application moved under Section 152 CPC the interest pendente lite was awarded by correcting the judgment and the decree on the ground that non-awarding of the interest pendente lite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152 CPC by the courts beyond its scope has been deprecated. While taking the above view this court had approved the judgment of the Madras High Court in Thirugnanavalli Ammal v. P. Venugopala Pillai, AIR 1940 Mad. 29 on Maharaj Pattu Lal v. Sripal Singh, AIR 1937 Oudh 191. Similar view is found to have been taken by this court in a case reported in State of Bihar v. Nilmani Sahu,(1996) 11 SCC 528, where the court in the guise of arithmetical mistake on reconsideration of the matter came to a fresh conclusion as to the number of trees and the valuations thereof in the matter which had already been finally decided. Similarly in the case of Bai Shakriben v. Special Land Acquisition Officer, (1996) 4 SCC 533, this Court found omission of award of additional amount under Section 23(1- A), enhanced interest under Section 28 and solatium etc. could not be treated as clerical or arithmetical error in the order. The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law. 14. As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the court to rectify such mistake. But before exercise of such power the court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was C.R. No. 5124 of 2006 [6] intended to be otherwise, that is to say, while passing the decree 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 order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be reconsideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought the court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of the court's inherent powers as contained under Section 152 CPC. It is to be confined to something initially intended but left out or added against such intention.” [Emphasis supplied]. If the facts of the present case are considered in the light of enunciation of law, as referred to above, a reference can be made to paragraph 3(a) of the plaint filed by the petitioners, which is extracted below: “Para No. 3 (a): That the defendants after the filing of the suit have encroached part of the plot in suit as detailed in report of the Local Commission. The defendant No. 1 has encroached upon to the extent of 11 sq. yds. Defendant No.2 Naresh son of Sohan Lal has encroached upon to the extent of 3-2/3 square yards and defendant No. 3 Bhoja Ram has encroached upon to the extent of 60-1/2 sq. yards and defendant No. 4 Hira Lal has encroached upon to the extent of 30 sq. yards in the plot in suit.” A perusal of the aforesaid pleadings show that specific averments were made with regard to encroachment made by Hira Lal-respondent No.4/defendant No.4. Reference is being made to Hira Lal as the correction is being sought only qua the portion found to be encroached by him. A perusal of the judgment of the trial court shows that the petitioners had purchased the plot in question vide sale deed dated 29.3.1988, part of which was encroached by the C.R. No. 5124 of 2006 [7] respondents including Hira Lal. It was claimed that the suit property was part of Khasra No. 999. Respondents No.1 and 2/defendants No. 1 and 2 claimed that they are owners of Khasra No. 1001 (3-1/2 marlas each) and they had raised even their boundary wall on the land owned by them, whereas defendants No. 3 and 4 claimed ownership on some portion of the land on khasra Nos. 998 and 1009. During the course of trial, a retired Kanungo was appointed as a Local Commissioner, who demarcated the land and found that the claim made by the petitioners in the suit regarding encroachment by the respondents was clearly made out in the terms it was claimed. Considering the stand of the respondents that they claimed themselves to be owners in possession of some portions in khasra Nos. 998 and 1001 and there being no dispute regarding the ownership of the petitioners on small portion of land in khasra No. 999, further there being report of the Local Commissioner on record stating that the respondents had encroached upon part of the land forming part of khasra No. 999, the learned trial court relying on the report of the Local Commissioner (Ex. P1) recorded encroachment of the land owned by the petitioners by respondents No.1 to 3/defendants No.1 to 3. However, it failed to notice the same with regard to respondent No. 4/defendant No. 4- Hira Lal in paragraph 11 of the judgment. The relevant lines are extracted below: “11. After going through Ex. P1 report of Local Commissioner, it is clear on the file that defendant has encroached upon the suit land to the extent of 11 sq. yds. defendant No. 2 has encroached upon to the extent of 3-2/3 sq. yds. and defendant No. 3 has encroached upon to the extent of 60-1/2 sq. yds. in the suit land. DW 4 Naresh son of Sohan Lal one of the defendant has admitted in his cross examination that he has no concern with the suit land comprising in Khasra No. 999 on which plaintiffs are in possession. He has further admitted that Local Commissioner demarcated the suit land comprising in Khasra No. 999 in his presence.Another witness DW 5 Kiran Pal has also admitted in his cross examination that plaintiff Sarwan is the owner in possession of the khasra No. 999. He has further admitted that he has no concern with the suit land and Local Commissioner demarcated the suit land in the presence of his Advocate and no objection was raised at the time of demarcation of the suit land. Another witness DW6 Bhoj Raj has also admitted in his cross examination that defendants have no concern with the khasra No. 999 in any manner.” However, in paragraph 12 of the judgment, it was recorded as C.R. No. 5124 of 2006 [8] under: “In view of above discussions, it is clearly proved on the file that defendants have made encroachment over the suit land, which has been detailed and described in para 3(a) of the plaint. It is also proved on the file that plaintiffs are owners in possession of residential plot comprised in khewat/khatoni No. 491/584, khasra No. 999, measuring 1 kanal 10 marlas, situated within the revenue estate of Palwal, Tehsil Palwal, District Faridabad and defendants have no right to interfere or dispossessing the plaintiffs from the suit land in any manner. The plaintiffs are entitled for possession against the defendants, who have encroached upon the land of the plaintiffs comprising khasra No. 999. Hence, both these issues are decided in favour of the plaintiffs and against the defendants. In the aforesaid paragraphs, the learned court below had decided issues No. 1 and 2 in their entirety in favour of the petitioners and against the respondents-defendants holding them to be the owners of the property and also entitling them for possession against the respondents-defendants who had encroached upon the part of the land. To complete the sequence of facts, it would be appropriate to extract issues Nos. 1 and 2 here, which are as under: “1. Whether the plaintiffs are owners in possession of plot, detailed in para 1 of the plaint, as alleged ?OPP 2. Whether the defendants after filing of the suit encroached part of the plot, as detailed in report of Local Commissioner, as alleged ?OPP” However, while granting the final relief in paragraph 14 again, there was some omission with regard to the mentioning of name of respondent No. 4/ defendant No. 4- Hira Lal. Paragraph 14 is extracted below: “14. In view of discussions under various issues, suit of the plaintiffs succeeds and is hereby decreed with costs. A decree for permanent injunction restraining the defendants from interfering or dispossessing the plaintiffs from the suit land and a decree for possession against the defendant No. 1 to the extent of 11 sq. yds against the defendant No. 2 to the extent of 3-2/3 sq. yds against the defendant No. 3 to the extent of 60/2 sq. yds. (sic 60-1/2) as detailed in para 3(a) of the plaint is hereby passed in favour of the plaintiffs and against the defendants. Decree sheet be prepared accordingly and file be consigned to record room.” C.R. No. 5124 of 2006 [9] In the aforesaid paragraph also, though a reference was made to paragraph 3(a) of the plaint, however, while mentioning facts in detail, specific reference to the land encroached upon by Hira Lal was not mentioned. The decree was prepared accordingly missing the name of Hira Lal-defendant No. 4. Subsequent development thereafter is also evident of the fact that it was mere omission by the court in not mentioning the name of Hira Lal, though he was also found to have encroached upon 30 sq. yards of land owned by the petitioners. The judgment of the trial court was delivered on 9.11.2000. The petitioners having noticed the omission in the judgment immediately filed an application for correction of the omission in the judgment, whereas respondents No.1 and 2/defendants No. 1 and 2 being satisfied with the judgment did not prefer any appeal. However, respondents No. 3 and 4/defendants No. 3 and 4 (Bhoj Ram and Hira Lal) being aggrieved against the judgment and decree of the trial court and considering the same to be against them filed appeal before the learned lower appellate court. The judgment and decree of the trial court passed against the respondents and in favour of the petitioners was upheld by the learned Additional District Judge, Faridabad vide judgment dated 4.3.2002. In the appeal, findings on all the issues were sought to be challenged. The learned Additional District Judge, Faridabad considered the issues, recorded following findings in paragraph 13 of the judgment: “13. I have given my considered thought to the submissions of both the learned counsel for the parties. Now the case of the appellant Boja Ram (sic. Bhoj Ram) defendant No. 3 is that he is owner of Khasra No. 998 total measuring 3 kanals 15 marlas to the extent of 3/75 share, i.e., 3 marlas, which is situated within the municipal limits, Palwal and they have already raised construction over their own plot. The case of the appellant- Hira Lal now represented by his LRs/ defendant No. 4 is that he is owner of khasra No. 998 to the extent of 2/75 share, i.e. 2 marlas situated within the municipal limits Palwal. Now obviously the appellants-defendants have no concern with the land comprised in khasra No. 999. As per appellants defendants the plaintiffs/respondents No. 1 and 2 had purchased the suit property vide sale deed Ex. P4. Though before me, it is argued that one Ram Chander was recorded owner of khasra No. 999 and after his death khasra No. 999 was to be inhertied, if any, by his three sons namely Ravi Mangla etc. and the sale deed Ex. P4 executed by Dr. Ravi Chander Mangla only with regard to the land C.R. No. 5124 of 2006 [10] comprised in khasra No. 999 in favour of the plaintiffs/respondents No. 1 and 2, is not thus valid, yet I am of the confirmed view that this is the admitted case of the appellants-defendants that they have no concern with the land comprised in khasra No. 999 and thus the defendants appellants have no cause to ASSAIL