Krishan Kumar vs Neelam Devi
2012 Latest Caselaw 2020 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Judgment:23.03.2012

+     CM(M) 12/2005

      KRISHAN KUMAR                         ..... Petitioner
                  Through               Mr. Rajat Aneja and Ms. Sumati
                                        Jumrani, Adv.

                    versus

      NEELAM DEVI                             ..... Respondent
                             Through    Mr. Anand Kumar, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The petitioner is aggrieved by the order dated 03.12.2004

whereby the prayer made in the application under Section 152 of the

Code of Civil Procedure (hereinafter referred to as the Code) filed by the

decree holder had been allowed and he had been permitted to file a

fresh site plan giving correct details of the disputed premises.

2 Record shows that the present suit for possession and permanent

injunction had been filed by the plaintiff; this suit had been decreed on

25.01.2002. The averments made in para 3 of the plaint specifically

state that the premises comprise of one shop on the ground floor, one

room and balcony situated on the first floor measuring about 25 to 30

sq. yards as depicted in red colour in the site plan had been leased out to

the tenant. Corresponding para of the written statement has been

perused. There is no dispute or denial to this averment. The actual area

of the property leased out to the tenant i.e. the portion on the ground

floor and portion on the first floor which was in occupation of the tenant

was never the subject of dispute before the Trial Court.

3 Record shows that in the prayer clause of the plaint, the plaintiff

has prayed for a decree of possession qua the suit property as depicted in

red colour in the site plan. The judgment and decree dated 25.01.2002

had decreed the suit of the plaintiff qua the green portion as depicted in

the site plan. The suit plan had been produced before the Trial Court as

Ex. PW1/6. This site plan had in fact depicted only ground floor of the

suit premises; first floor was not shown. Portion shown in red colour

was in occupation of the landlord; the green colour portion is in

occupation of the tenant; inadvertently, in the prayer clause the plaintiff

had prayed for a decree for a red coloured portion in the site plan

whereas the tenant was in occupation of green coloured portion.

However, the decree had been passed qua the green colour portion; this

was qua the ground floor as this site plant has not depicted the first floor

premises. All these facts are undisputed and are part of the record.

4 In the course of execution proceedings, the bailiff executed decree

only qua the ground floor as the site plan shows only the ground floor

portion; decree had been passed qua the ground floor portion and not

qua the first floor portion. The plaintiff had accordingly filed an

application under Sections 151 & 152 of the Code stating that this was a

clerical mistake which is liable to be corrected. Impugned order had

allowed his prayer. This is the grievance of the petitioner.

5 The scope of the powers under Section 152 of the code includes

the powers of the court to correct clerical or arithmetical errors;

mistakes which are accidental and not intentional and would not affect

the merits of the case would fall within the parameter of Sections 151

and 152 of the Code.

6 The Supreme Court in AIR 2003 SC 643 titled as Prati bha Singh

vs. Shanti Devi Prashad had an occasion to consider such a provision; in

this case where the suit has two immovable properties had been decreed

and property had not been properly identified; this being so noted by the

plaintiff at a later date which was accordingly cured under the provision

of Section 152 of the Code; the court had noted this being an inadvertent

error and not effecting the merits it can be corrected by supplying the

omission. Applying the ratio of the aforenoted judgment, it is clear that

the impugned order allowing the prayer made by the decree holder

suffers from no infirmity.

7 Reliance placed by the learned counsel for the petitioner upon the

judgments reported in 2002 AIHC 1129 titled as Madan lal vs. Victor

Denial, AIR 2001 SC 2316 titled as K. Rajamouli vs. A.V.K.N. Swamy,

(1999) 3 SCC 500 titled as Dwarka Dass vs. State of M.P. and Anr., AIR

2001 sc 1084 titled as Jayalakshmi Coelho vs. Oswald Joseph Coelho is

misplaced.

8 There is no dispute that where there is some misunderstanding or

confusion, the same cannot be rectified. In this case there was no such

confusion or misunderstanding; facts as noted above were clear. The

portion of the premises in occupation of the tenant was not in dispute. It

was never the contention of the defendant that he was not in occupation

of the portion on the first floor of the premises. Merely because of an

inadvertence, if the plaintiff did not file compete site plan showing the

first floor of the premises as well although it is specifically find mention

in his plant, the impugned order correctly noted that this is liable to be

corrected under the provision of Section 152 of Code. Parties could not

be relegated to fresh litigation.

9     Petition is without any merit; it is dismissed.




                                              INDERMEET KAUR, J
MARCH 23, 2012
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