CR No.7580 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CR No.7580 of 2009 (O&M) Date of Decision : 21.12.2009 Jagbir Singh and another ..Petitioners. Vs. Nirmal Singh and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Surinder Sharma, Advocate for the petitioners. RAKESH KUMAR JAIN, J. This revision petition arises out of orders dated 12.3.2007 (Annexure P-7) passed by the Civil Judge (Sr.Divn.) Jalandhar and dated 3.8.2009 (Annexure P-8) passed by the Additional District Judge, Jalandhar dismissing the application filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short `CPC') as not maintainable and also on merits. The suit land was originally owned by five brothers, namely, Ajit Singh alias Jit Singh (since deceased), Sohan Singh, Nirmal Singh, Mohan Singh and Pritam Singh in equal shares. Ajit Singh was the owner of 1/5th share, who died on 22.4.1987. Defendants Jagbir Singh and Amritpal Singh sons of Sukhdev Singh claimed to have succeeded to the property of Ajit Singh on the basis of a Will dated 9.1.1987 which was challenged by Nirmal Singh and Sohan Singh sons of Bishan Singh (brother of Ajit Singh) on the basis of another Will dated 20.4.1987, alleged to have been propounded by Ajit Singh (deceased), bequeathing his 1/3rd share out of his 1/5th share in favour of Sohan Singh and remaining 2/3rd share in favour of CR No.7580 of 2009 -2- Nirmal Singh. During the pendency of the suit, a compromise (Ex.CX) was arrived at between the parties on 30.8.1995, according to which suit of the plaintiffs for declaration that plaintiff Nirmal Singh is owner in joint possession of 1/5th share and 8 Kanals of land and Sohan Singh is the joint owner in possession of 1/5th share and 5 kanals of land out of the suit land inherited by them from Ajit Singh out of land measuring 113 Kanals situated in village Laroi was decreed and the remaining relief was dismissed. The compromise was ordered to be made part of the decree. After the aforesaid judgment and decree dated 30.8.1995 based upon the compromise, the plaintiffs filed an application under Section 152 of CPC alleging therein that as per compromise land measuring 13 kanals fell to the share of Nirmal Singh and Sohan Singh was of two villages, namely, Jallowal and Laroi but inadvertently only village Laroi has been mentioned in the judgment and decree whereas according to applicants/plaintiffs they were entitled to 13 Kanals of land of two villages. The said application dated 3.9.1998 was allowed by the Additional Civil Judge (Sr.Divn.) Jalandhar vide his order dated 27.4.1999 observing as under: “Record perused. There is some clerical mistake in judgment dated 30.8.95 on page no.4 in line no.3 from bottom as the land has been shown to be situated in village Laroi only as entered has been mentioned that land entered in village Jallowal also. So, necessary correction is hereby made and now to be read as under : “Out of the suit land measuring 113 Kanals situated in village Laroi and Jallowal similar correction may be made in the Decree Sheet. File be consigned to the record room.” CR No.7580 of 2009 -3- Aggrieved against the order dated 27.4.1999, the defendants and LRs of Sohan Singh (plaintiff) filed an application under Order 9 Rule 13 CPC for setting aside the ex parte order dated 27.4.1999 on the ground that the said order has been passed behind their back. Reply to the application was filed. The learned Addl.Civil Judge (Sr.Divn.) Jalandhar framed necessary issues on the basis of pleadings of the parties and after recording evidence, dismissed the application not only on the ground that an amendment in the decree does not come within the ambit of an ex parte decree for the purpose of setting it aside under Order 9 Rule 13 CPC but also on the ground that Sukhdev Singh father of minors Jagbir Singh and Amritpal Singh had signed and filed the application, therefore, the same cannot be denied at this stage as Sukhdev Singh had admitted his signatures on the application. The application was thus, dismissed vide order dated 12.3.2007. Still aggrieved the petitioners had filed an appeal before Additional District Judge, Jalandhar which was also dismissed vide order dated 3.8.2009 on the ground of its non maintainability and also on merits. Counsel for the petitioners has argued that Section 152 CPC can be invoked for the limited purpose of clerical or arithmetical error in the judgment but it cannot be invoked to add substantial claim which was not granted in the decree. He, however, failed to challenge the orders of both the Courts below which have been passed on the ground of non maintainability of the application filed under Order 9 Rule 13 CPC because Order 9 Rule 13 CPC talks of an ex parte decree and not of an order by which an amendment has been brought in the decree. In order to appreciate the argument raised by the learned counsel for the petitioners, Section 152 CPC and Order 9 Rule 13 CPC are reproduced as under : CR No.7580 of 2009 -4- Section 152 CPC 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.” Order 9 Rule 13 CPC “Setting aside decree ex parte against defendant – In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.” No doubt Section 152 CPC pertains to amendment of judgment, decree and orders where there is a clerical or arithmetical mistake arises from any accidental slip or omission but any order passed under the said Section by which an amendment is brought in the decree cannot be challenged by way of an application under Order 9 rule 13 CPC because Order 9 Rule 13 CPC pertains to a circumstance wherein the plaintiff obtains an ex parte decree against the defendant who satisfies the Court that either summons have not been duly served upon him or he has been prevented by any cause while the suit was called for hearing but still the ex parte decree cannot be set aside merely on the ground of an irregularity in CR No.7580 of 2009 -5- the service of summons if the Court is satisfied that defendant had the notice of hearing of the case and sufficient time to appear and answer the claim of plaintiff. Thus, in my view, the present application filed under Order 9 Rule 13 CPC assailing the order dated 27.4.1999 having been passed under Section 152 CPC is clearly not maintainable and as such, no relief could have been granted by the Courts below who have rightly dismissed the application being not maintainable. Moreover, the application has been filed for amendment of the judgment and decree on which the impugned order has been passed by none else than the father of the present petitioners who had owned his signatures on the application, therefore, it does lie in their mouth to challenge the impugned order on the ground of being condemned unheard. In view of the above discussion, I do not find any merit in the present revision petition and as such, the same is hereby dismissed without any order as to costs. (Rakesh Kumar Jain) 21.12.2009 Judge Meenu