Jagannath More And Ors vs Ramesh Mahadu Bhagvat And Anr
2021 Latest Caselaw 6900 Bom

                                                     WP-12853-2019.doc




     IN THE HIGH COURT OF JUDICATURE AT
                 BOMBAY
       CIVIL APPELLATE JURISDICTION

                 Writ Petition No. 12853 / 2019


1.       Jagannath More
         Age : 85 years, Occupation : Business.

2.       Ramesh Shankar More
         Age : 51 years, Occupation : Business.

3.       Alka Prakash More
         Age : 53 years, Occupation : Household,

4.       Sachin Prakash More,
         Age : 35 years, Occupation : Business,

5.       Suresh Govind More,
         Age : 63 years, Occupation : Business,

6.       Sunil Govind More,
         Age : 46, Occupation : Business,

7.       Chitalee Deepak Pawar,
         Age : 26 years, Occupation : Household,

All R/o - Municipal House No.434,
More-Wada Vakilwadi,

Najeeb                                                                   1/33




 ::: Uploaded on - 30/04/2021               ::: Downloaded on - 09/09/2021 11:55:05 :::
                                                   WP-12853-2019.doc


Ashok-stambh Nashik.                                    .. Petitioners


                                Versus

1.       Ramesh Mahadu Bhagvat,
         Age : 68 years, Occupation : Business,

2.       Hemant Ramesh Bhagvat,
         Age : 40 years, Occupation : Business,

Both R/o : 8, Surya Society,
Kaushalya Nagar, Ramwadi,
Panchavati, Nashik - 3                                  .. Respondents



                                *****

Mr. Milind M. Sathaye, Advocate for Petitioner.

Mr. Shriram S. Kulkarni, Advocate for Respondent No.2.

                          *****


                   CORAM        : SANDEEP K. SHINDE J.
                   RESERVED ON  : 23rd MARCH, 2021.
                   PRONOUNCED ON : 30th APRIL, 2021.

JUDGMENT :-

1.       Rule.

Najeeb                                                                2/33





                                                     WP-12853-2019.doc

2. Rule made returnable forthwith. Heard. finally with the

consent of the parties.

3. Petitioners-Landlords are decree holders. Their Civil

Miscellaneous Application No.184 / 2018, seeking for

corrections in the decree was rejected on 12th July, 2019 by

learned District Judge - I, Nashik. Against this order,

Petition under Article 227 of the Constitution of India is

preferred.

4. Briefly stated Petitioners' case is;

Petitioners-Landlords sought decree to recover possession of

the suit property ad-measuring 5 x 3 square meters, of house

no. 434 at Nashik, for their bonafide and reasonable need.

Landlords alleged the tenant/ respondent, encroached upon

and erected permanent structure, beyond the area of suit

property. Thus alleged tenant was found occupying area ad-

Najeeb                                                                  3/33





                                                  WP-12853-2019.doc

measuring 33.45 square meters of house no. 434, as against

the 15 square meters. The bonafide need of the Landlords

was upheld by the trial and Appellate Court. Civil Revision

Application preferred by the tenant was dismissed. The

Special Leave Petition (SLP) was also dismissed.

5. The Courts below rendered a finding, the property let

out to the tenant was ad-measuring 20 x 20 square feet and

not just 15 square meters. Reliance was placed on a

document, Usanwar Pavti (Rent note Exhibit-49) executed

between the parties. Courts below held thus;

"From this documentary evidence, it is crystal

clear that Defendant (tenant) is in possession of

area ad-measuring 400 square feet, since inception

of the tenancy. (Emphasis supplied).

Najeeb                                                               4/33





                                                     WP-12853-2019.doc


.             The learned trial Court framed following issue;

'whether plaintiffs proved that Defendant encroached over

the rest of the premises of the plaintiffs and thereby breached

the terms and conditions of the tenancy' and answered as

follows;

"Issue No.3 : The next ground for eviction is that the defendant encroached over the adjoining premises of the plaintiffs and thereby breached the terms and conditions of the tenancy. P.W.1 Jagannath More disc"The learned Advocate of the appellant has argued that the learned lower court held that there was no encroachment and the findings were given with proper reasoning. There is an admission by the Plaintiffs about Usanwar patra Exh.49 which is dated 9.9.1974 and the Municipal Record is for the year 1975-76 after the said Usanwar Patra was executed, but the Plaintiffs have not made any grievance at the relevant time when Usanwar patra was executed. Therefore, at this juncture, what is demised premises in the possession of appellant is since the time when they entered into the contract of tenancy and the possession is to be taken into consideration and the learned lower court

Najeeb 5/33

WP-12853-2019.doc

was rightly held that appellant is in possession of 20 x 20 Sq.Feets premises. Hence, it need nor to answer the issue of encroachment in the affirmative as submitted by learned Advocate of the respondents in cross objection."losed in his evidence that the area of 15 sq. mts. was let out to defendant, but at present he is in possession of area admeasuring 33.45 sq.mts. Admittedly there was no written rent note between the parties. P.W.1 has also not disclosed in his evidence that on which date, month and year the defendant encroached over the adjoining premises. The plaintiffs have also not produced the counter part of the rent receipt in order to establish that what area was let out to the defendant. The learned advocate for the defendant urged that approximately area admeasuring 20' x 20' was let out to the defendant on monthly rent of Rs. 160/-. There was a Usanwar Pavti between the plaintiffs and defendant wherein the measurement of the demised premises was mentioned. The defendant has produced the original Usanwar Pavti at Exh.49 which was in between the present defendant and present plaintiff No.1 Jagannath and father of the plaintiff Nos. 2 to 5. The learned advocate for the plaintiffs urged that such type of Usanwar Pavti was never executed between the

Najeeb 6/33

WP-12853-2019.doc

parties. It is significant to note that it was specifically questioned to P.W.1 during his cross examination about Usanwar Pavti Exh. 49. P.W.1 admitted in the cross-examination that he and his brother had executed usanwar pavti on 9/9/1974, Usanwar Pavti Exh.49 was also shown to him during the cross-examination, he admitted signature of him and his brother appearing in exh.49. He also admitted the recitals therein to be true and correct. Thus, it is established from the aforesaid admission that said Usanwar Pavti was executed in between the parties. I have gone through the recitals of Exh.49 wherein it is specifically mentioned that the premises i.e. House No. 434 admeasuring 20' x 20' is let out to Ramesh Bhagat i.e. the present defendant. From this documentary evidence it is crystal clear that the defendant is in possession of the area admeasuring 400 sq.ft. Since inception of the tenancy. Thus, the plaintiffs have failed to establish that the defendant encroached over adjoining premises and hence, I answer Issue No.3 in the Negative."

5. Tenant preferred the Regular Civil Appeal, wherein

Landlords had preferred cross-objections, against the finding

Najeeb 7/33

WP-12853-2019.doc

on issue no. 1 to 3. The Appellate Court dismissed the cross-

objections and vide Paragraph No. 8 of its judgment

confirmed of all the findings of facts rendered by the trial

Court. In Paragraph No.8, Appellate Court has held thus;

"The learned Advocate of the appellant has argued that the learned lower court held that there was no encroachment and the findings were given with proper reasoning. There is an admission by the Plaintiffs about Usanwar patra Exh.49 which is dated 9.9.1974 and the Municipal Record is for the year 1975-76 after the said Usanwar Patra was executed, but the Plaintiffs have not made any grievance at the relevant time when Usanwar patra was executed. Therefore, at this juncture, what is demised premises in the possession of appellant is since the time when they entered into the contract of tenancy and the possession is to be taken into consideration and the learned lower court was rightly held that appellant is in possession of 20 x 20 Sq.Feets premises. Hence, it need nor to answer the issue of encroachment in the affirmative as submitted by learned

Najeeb 8/33

WP-12853-2019.doc

Advocate of the respondents in cross objection."

(Emphasis supplied)

6. Thus, fact-finding Courts held, since inception of the tenancy, premises ad-measuring 20 x 20 feet, was in possession of the tenant. This finding was based on Exh.-48 and admission of the tenant. As a consequence, both the Courts, held, tenant had not encroached over the area in excess of area of suit premises.

7. Petitioners-Landlords put the decree to execution. In

the schedule of property, they described, suit property, as

Municipal House No. 434, ground floor area ad-measuring 5 x

3 meters. The execution was obstructed by, Hemant

Bhagwat (Son of Judgment Debtor-tenant- hereinafter,

called 'Obstructionist'). Ignoring the findings of two Courts,

as stated above, in relation to area of suit property,

Obstructionist claimed his possession over an area

admeasuring 168 sq.ft of House No.434; may be because,

Najeeb 9/33

WP-12853-2019.doc

landlord was claiming possession, of property admeasuring 5

x 5 meters. Two Courts below rejected his claim. The Civil

Revision Application No. 686 / 2013 preferred by the

Obstructionist was also dismissed, wherein this Court had

observed thus;

"Mr. Agrawal also did not contend before me that the Petitioner has any right, title or interest in respect of the suit premises in Regular Civil Suit No. 66 / 2000. In my opinion, having regard to this, the application made by the Petitioner under Order-21, Rule-97, itself was misconceived. A person claiming some semblance of interest in respect of the suit property can obstruct the decree and in such situation, the proceedings under Order-21, Rule-97 can be taken out. In the present case, the Petitioner is not claiming any interest in the suit property. In view thereof, I do not find that the Courts below committed any error in dismissing the application made by the Petitioner under Order-21 Rule-97. In the result, no case is made out for invocation of powers under Section 115 of CPC. The Civil Revision Application falls and same is dismissed."

Najeeb                                                                 10/33





                                                WP-12853-2019.doc

8. In January, 2016, Petitioners-Landlords filed an

application in Darkhast No. 113 / 2013 for seeking

amendment of the plaint and correction in decree, qua area of

suit property i.e. area ad-measuring 20 x 20 square feet

instead of 5 x 3 meters. Civil Judge, Senior Division, vide

order dated 22nd June, 2018, permitted corrections in decree

subject to cost of Rs. 1000/-. This order was challenged in

Writ Petition No. 9251/2018 before this Court. The Order

granting amendment was challenged on the ground that the

application for amendment was not maintainable before the

trial Court, since its decree had merged in Decree in Civil

Appeal. The learned Counsel appearing for the Landlords in

the said Petition, made a concession and sought leave

withdraw the application preferred before the Civil Judge,

Senior Division, Nashik, with liberty to file application before

the District/ Appellate Court. Whereafter, the Landlords -

Najeeb                                                             11/33





                                                          WP-12853-2019.doc

Decree Holder filed Miscellaneous Application No. 184/2018,

seeking amendment in plaint and corrections in the decree

passed in RCS No. 66 / 2000. The learned District Court

rejected the said application, on the ground, that eviction

decree has been drawn for an area ad-measuring 5 x 3 square

meter of house No. 434 and there is nothing on record to show

that it was clerical or arithmetical mistake, arising from any

accidental slip or omission. Thus, Appellate Court declined

to exercise of powers under Section 152 of CPC, but

observed, since the terms of the decree are vague and

ambiguous, it is the duty of the executing Court to interpret

the same and ascertain the exact meaning thereof. The

learned Judge concluded the order by observing thus;

"Whether the particular property is or is not included in the decree will have to be considered by the executing Court and not by the Court passing the decree. Therefore, in my humble opinion, the

Najeeb 12/33

WP-12853-2019.doc

applicants are having equally efficacious alternative remedy under Order-21 Rule-10 and Section 47 of the CPC. This Court being not executing Court cannot interpret the decree. The application stands rejected."

9. It is against this order, the Landlords have preferred this

Petition under Article 227 of the Constitution of India.

10. Heard. learned Counsel for the parties.

11. Mr. Sathaye, learned Counsel for the Petitioners

submitted that the trial Court as well as the Appellate Court

have conclusively held that property let out to the tenant was

20 x 20 feet of house no. 434, as was evident from the Rent-

note, a document at Exhibit-49. Mr. Sathaye submitted

reasoning of the trial Court in Paragraph No. 15 of its

judgment indicates this finding has been rendered, in view of

Najeeb 13/33

WP-12853-2019.doc

the admission by tenant that he was inducted in the premises

i.e. House No. 434 ad-measuring 20 x 20 at monthly Rent of

Rs. 160/-. Submission, is that once finding is recorded that

tenanted area was ad-measuring 20 x 20 feet of house no. 434,

decree, ought to have been drawn, in terms of finding and

therefore, Landlord cannot be denied right to execute the

decree to the extent of area let-out to tenant, mearly because

lesser area was described in the plaint and in the decree.

. Mr. Sathaye submitted that when the Court

conclusively and finally determined the rights of the parties

with regard to all or any of the matter in controversy in suit,

a decree is to be drawn in terms, of rights determined by the

Courts. In support of his contention Mr. Sathaye relied on

the definitions of the 'decree' and of 'judgment' in Civil

Procedure Code, 1973. Besides, he submits the provision of

Section 153 is enabling in character which permits the Court

Najeeb 14/33

WP-12853-2019.doc

of first instance also to correct an error in the decree

irrespective of the fact, that the decree had merged in the

decree of a superior Court. On this proposition, Mr. Sathaye

relied on the judgment of Allahabad High Court, in the case

of Ram Bharosey Lal Revisionist Vs. Rameshwar

Dayal Chakkiwala and Anr. (AIR 984 Allahabad 167).

Mr. Sathaye submitted that rules of procedure are intended

to be a handmaid to the administration of justice and thus a

party cannot be refused just relief merely because of some

mistake, negligence, inadvertance or even infraction of rules

of procedure. He relied on the judgment of Hon'ble Apex

Court in the case of Jai Jai Ram Manohar Lal Vs.

National Building Material Supply, Gurgaon (1969 (1)

SCC 869). On these grounds, he seeks the correction in the

decree.

Najeeb                                                            15/33





                                               WP-12853-2019.doc

12. Per-contra, Mr. Kulkarni, learned Counsel for the

Obstructionist and Judgment-Debtor, submits that after the

trial Court had rendered the finding that the Plaintiff could

not established encroachment by the tenant over premises

beyond the suit premises, the Landlord had preferred the

cross-objections and persisted his stand that property let out

to the tenant was ad-measuring 5 x 3 meters. Mr. Kulkarni

submitted, though the decree was passed in 2005 and

although the finding was rendered that property ad-

measuring 20 x 20 feet was let out, since inception, the

Landlords instituted the execution proceedings and described

the suit property, as house no. 434 ad-measuring 5 x 3 meters.

Mr. Kulkarni submitted nearly after nine year i.e. in 2016 for

the first times, an application was moved seeking correction

in decree and amendment to the plaint qua area of suit

property. Mr. Kulkarni submits, since from institution of the

Najeeb 16/33

WP-12853-2019.doc

suit (in 2005), in all proceedings landlord asserted his claim

to recover area ad-measuring 5 x 3 square meters and

therefore now he cannot claim that premises let-out, was 20 x

20 feet ant not 5 x 5 meters. Mr. Kulkarni submitts the

Obstructionist, has instituted the suit to establish his rights

over the property ad-measuring 9 x 18 feet of house no. 434.

He therefore, submits recourse cannot be taken to provisions

of Section 152 and/ ore 153, to correct the decree, since

mistake of which correction is sought is neither accidental or

clerical.

13. Discussions and Reasons : As the object of an

amendment is to harmonise the decree with judgment sought

to be enforced question is; Whether both the Court were

justified in rejecting Petitioners' application for seeking

correction in the decree as sought therein?

Najeeb                                                             17/33





                                                   WP-12853-2019.doc

14. Section 2 (9) of Civil Procedure Code, 1908 says

judgment means the statement given by the Judge on the

grounds of a decree or order. Therefore judgment must

contain the grounds of the decision. Yet judgment stands on

a different footing from the decree. The legislature has

avoided the use of words 'formal expression' in the definition

of judgment, though the words 'formal expression' have been

used in the definition of 'order' in Section 2(14). Conversely,

it is not necessary that in a decree, there should be a

statement of reasons given by the judge. Statement of

reasons is to be given by the judge, only in the judgment.

The decree is the formal expression of conclusions arrived at

in the judgment.

. What a judgment should contain is indicated in Order-

20, Rule-4(2); which says that a judgment, shall contain a

Najeeb 18/33

WP-12853-2019.doc

concise statement of the case; the points for determination,

the decision thereon, and the reasons for such decision. It

should be a self-contained document from which it should

appear as to what were the facts of the case and what was the

controversy which was tried to be settled by the court and in

what manner. It is settled law that the process of reasoning

by which the court came to the ultimate conclusion and

decreed the suit should be reflected clearly in the judgment.

15. The meaning, attributes and contents of the judgment

have been explained by the Hon'ble Apex Court in the case of

Smt. Swaran Lata Ghosh Vs. Harendra Kumar

Banerjee AIR 1969 SC 1167 : (1969) 1 SCC 709.

"Trial of a civil dispute in Court is intended to achieve, according to law and the procedure of the Court, a judicial determination between the contesting parties of the matter in controversy.

Opportunity to the parties interested in the dispute

Najeeb 19/33

WP-12853-2019.doc

to present their respective cases on question of law as well as fact, ascertainment of facts by means of evidence tendered by the parties and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial, the judge not only reach must a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its resolution. A judicial determination of a disputed claim where substantial question of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge; a mere order deciding the matter in dispute but not supported by reasons is no judgment at all."

16. The expression decree is defined in Section 2(2) of the

Code of Civil Procedure, 1908.

" 'Decree' means the formal expression of an adjudication which, so far as regards the Court

Najeeb 20/33

WP-12853-2019.doc

expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within

[***] Section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

17. The Definition of Decree has the following essential

elements:

(i) there should be adjudication;

(ii) the adjudication should determine the rights of parties

regarding the matter in controversy;

Najeeb                                                                      21/33





                                                   WP-12853-2019.doc

(iii) the adjudication should be in a suit and the adjudication

should be formal and conclusively so far as that court is

concerned;

. Expression conclusively determines must be one, which

is complete and final as regards the court which passed it.

The another essential element is rights of parties with regard

to all or any of the matters in controversy in the suit. The

expression matter in controversy in the suit means such

matter as has been brought up for adjudication by the court

through the pleadings. Hence, the conclusive determination

in order to amount to a decree must be on matters in

controversy in the suit.

18. In the case of Kanji Hirji Vs. Jivraj Dharamshi,

AIR 1976 Gujarat 152; it is held that a decision on the

question of possession as between the landlord and his tenant

Najeeb 22/33

WP-12853-2019.doc

in a suit under the Rent Act is a decision on the rights of the

parties and is a decree. Further held that if a decree is not

drawn up, it does not mean that the order of the Court by

which rights of the parties are finally adjudicated upon, is not

a decree.

. In the case at hand, the trial Court, as well as the

Appellate Court have conclusively held tenanted area was

400 square feet, since inception of tenancy. Therefore, rights

of the parties with regard to matter in controversy has been

conclusively determined, which is a "statement of reasons"

given by the Judge. In the backdrop of these facts, another

question is; whether the provision of Section 33 of the C.P.C.

were correctly followed and applied? Section 33 of C.P.C.

says the Court after the case has been heard, shall pronounce

judgment and 'on such judgment' a decree shall follow.

Under the section, it is imperative that a decree must follow

Najeeb 23/33

WP-12853-2019.doc

the judgment. Therefore, by statement of reason, once Judge

conclusively determines rights of the parties, with regard to

matter in controversy and decree follows the judgment. As

such scheme of Civil Procedure Code does not admit

inconsistency in rights concluded in judgment and decree

drawn. Herein, two fact finding Courts, conclusively

determined the rights of the parties with regard to suit

property by rendering the finding, that tenant was in

possession of the suit property ad-measuring 400 square feet

since the incpetion of tenancy, and too in accordance with

document at Exhibit-49. This finding was confirmed in a

revision by this Court and Special Leave Petition (SLP)

preferred by the tenant, was dismissed. Therefore, in terms

of Section 33 of CPC, decree ought to have been drawn in

terms of finding rendered by the trial Court, while answering

issue no.3 and reasoning articulated in paragraph no.8 of the

Najeeb 24/33

WP-12853-2019.doc

Appellate Court.

19. Therefore once, Courts have conclusively determined

the rights of the parties in respect of the suit property, it was

imperative that a decree must follow the judgment. However

if not followed or failed to follow or omitted to follow for

whatever reason, the question is; whether the Court is

empowered to correct the decree in exercise of powers under

Sections 151 and 152 of C.P.C. In the case of Namdeo

Amrut Gohane Vs. Narayan Shamrao Deshmukh

AIR 1971 Bombay 121, the facts were, the plaintiff-

respondent therein had filed the suit for recovery of Rs.

6136/- and also for a charge on the suit field for this sum.

The plaintiff therein had sold a field to the defendant for Rs.

5,500/-. A sum of Rs. 300/- was paid on the date of executing

the agreement as earnest money by the defendant. Under the

Najeeb 25/33

WP-12853-2019.doc

agreement, the defendant was to pay the balance

consideration by installments. He was to pay first

installment of a sum of Rs.1300/- on 15-02-1960 and to go on

paying Rs.1300/- every year till the last installment on 15-02-

1963. Because he had not paid any installment, the plaintiffs

had filed the suit for the unpaid price of the field. The trial

Court dismissed the plaintiffs' suit. Therefore, they went in

appeal before the District Court, Nagpur. The District

Court passed the decree in favour of the plaintiffs. However,

there was an omission in the decree drawn regarding the

charge on the field which was the subject matter of the sale

and on account of which the unpaid amount was not paid.

The plaintiffs had, therefore, applied under Sections 151 and

152 of the C.P.C. stating that they had filed a suit not only

for the recovery of an unpaid price but also claimed a charge

decree on the property. Their contention in the application

Najeeb 26/33

WP-12853-2019.doc

was the Appellate Court had allowed the appeal and decreed

the suit but the decree drawn up, did not mention that the

decretal amount would be a charge on the property in suit.

In the backdrop of these facts, it was held;

"Under Section 151, the Court in interests of justice, can pass an order even correcting the decree, unless it is prohibited by Code or other Statutes. Where there has been a clerical or arithmetical mistake or an error arising from accidental slip or omission Court can amend or vary a decree under Section

152. A decree though formal, must reflect all the adjudication by Court. It should be drawn up in such a way as to make it self-contained and a reflection of all important relief's given by judgment. Where the decree did not conform to judgment intended to be enforced by it, decree could certainly be amended under Section 152 to bring it in conformity with intention that was expressed in judgment. The amendment of course, will not be allowed if it is not in furtherance of judgment. As the object of amendment is to harmonise decree with judgment sought to be enforced by it test for deciding whether an amendment should be allowed or not is whether

Najeeb 27/33

WP-12853-2019.doc

the decree represents the intention of the judge who made it. Even otherwise judge could allow amendment under Section 151 if in the interests of justice he had to make the decree in conformity with the judgment."

20. In the case of Jet Ply Wood Pvt. Ltd. Vs.

Madhukar Nowlakha Ltd. AIR 2006 SC 1260, the

Hon'ble Apex Court has held thus;

"the provisions of the C.P.C. is not a exhaustive for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The principle is well established that when C.P.C. is silent regulating the procedural aspect, the inherent powers of the Court can come to its aid for doing real and substantial just between the parties.

However, the power under this Section relates to the matter of procedure and if the rule of procedure

Najeeb 28/33

WP-12853-2019.doc

resorts in justice and there is no remedy. Let can resort the Provision of Sections 151 and 152 of CPC. Section 151, however does not confer any powers to only indicate that there is a power to need such order as may be necessary for achieving the ends of justice and also to prevent an abuse of process of the Court."

21. The Hon'ble Apex Court in the case of Manohar Lal

Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal AIR

1962 SC 527, has held thus;

"Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to

Najeeb 29/33

WP-12853-2019.doc

do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code."

22. Herein, two fact-finding Courts have rendered a finding

of fact that the tenant was in possession of suit premises ad-

measuring 400 square feet, since inception of the tenancy.

This finding was in accordance with Rent note. Yet the

decree was not drawn in accordance, with finding, which was

otherwise imperative in terms of Section 33 of C.P.C. Thus,

in the circumstances, the petitioner has correctly applied

under Section 151 read with 152 of CPC to contend, where

the decree did not conform to judgment intended to be

enforced by it, decree should be amended under Section 152

to bring it in conformity with intention that was expressed in

the judgment. At the cost of repetition, it may be stated that

both the Courts by rendering finding that tenant was in

Najeeb 30/33

WP-12853-2019.doc

possession of premises ad-measuring 400 square feet and since

ordered eviction, it was intended that eviction decree would

be of the premises, ad-measuring 400 square feet. It may also

be stated that the Petitioner is not seeking more, in

furtherance of the judgment. His prayer is to say let decree,

be drawn in conformity with the intention expressed in the

judgment. The object of amendment as held in Gohanes' case

(supra), is to hormonise the decree with the judgment which

represents the intention of the judgment who made it.

Therefore, in my view the Courts below ought to have

corrected/ amended the decree, in the interest of justice to

harmonise it with judgment, for doing real and substantial

justice between the parties.

23. It is settled law of that every Court has inherent power

to vary amend the decree, so as to carry out its own meaning.

Najeeb                                                            31/33





                                                WP-12853-2019.doc

In so doing, it does nothing but exercise a power to correct

the mistake in the decree or order, that was drawn up. As

well, there is no dispute as to fact that there is no period of

limitation for filing an application under Section 152. In the

Case of Shamlal Vs. Girish AIR 1962 Pat. 116, it is held

that the decree may be amended under this Section at any

time, although the time for appealing from the decree has

expired. As such, in this case though the application for

amendment of the decree was made in 2016, it was a

maintainable.

24. In consideration of the facts of the case and for the

reasons stated, Writ Petition is allowed in terms of prayer

clause (b) and Rule is made absolute in terms thereof, with

no order as to cost.

Najeeb                                                             32/33





                                                     WP-12853-2019.doc

25. At the request of Mr. Kulkarni, learned Counsel for

respondent no.2, the operation of order is stayed for a period

of 8 weeks.

                                    (SANDEEP K SHINDE J)




Najeeb                                                                  33/33