Delhi High Court
Sanjay Gupta vs Arun Gupta on 2 February, 2017
$~A-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 02.02.2017
+ CM(M) 1191/2016
SANJAY GUPTA ..... Petitioner
Through Mr.I.P.Singh, Advocate
Versus
ARUN GUPTA ..... Respondent
Through Mr.Suhail Dutt, Senior Advocate with
Mr.K.K.Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
CAVEAT No.240240/2016
Since the learned counsel for the respondent has entered appearance,
the caveat stands discharged.
CM No.43306/2016 (exemption)
Allowed subject to all just exceptions.
CM(M) 1191/2016
1. By the present petition under Article 227 of the Constitution of India
the petitioner seeks to impugn the order dated 18.7.2016 by which an
application filed by the respondent/plaintiff under section 152 CPC seeking
correction in a judgment and decree dated 13.8.2012 passed under Order 12
Rule 6 CPC was allowed. As a consequence of the correction, the Gift Deed
dated 1.5.2009 which as per the original order was declared as null and void
was also directed to stand cancelled.
CM(M) 1191/2016 Page 1 of 5
2. The respondent had filed the suit for declaring the gift deed in
question dated 1.5.2009 as null and void. The parties are real brothers.
Thereafter the respondent moved an application under Order 6 Rule 17 CPC
for adding the prayer for cancellation of the Gift Deed. The application was
allowed.
3. On 13.8.2012 the suit was decreed under Order 12 Rule 6 CPC.
However, the trial court while decreeing the suit took into account the
unamended plaint ignoring the subsequent amendment which was allowed
under Order 6 Rule 17CPC.
4. Against the decree dated 13.8.2012 the petitioner filed an RFA before
this court which was dismissed on 24.5.2013. Against the judgment of this
court dated 24.5.2013 a Special Leave Petition was filed in the Supreme
Court which was also dismissed on 19.9.2014.
5. The case of the respondent is that immediately after the decree was
passed on 13.8.2012, he has on 28.8.2012 sought rectification of the decree
under section 152 CPC. The trial court has allowed the same by the
impugned order dated 18.7.2016.
6. A perusal of the decree dated 13.8.2012 which was passed on an
application under Order 12 Rule 6 CPC would show that the trial court has
noted that the respondent has filed the suit for declaration that the gift deed
dated 1.5.2009 executed in favour of the petitioner be declared null and void
and further a decree of permanent injunction be passed against the petitioner
not to dispossess the respondent from the suit property. It is manifest from
the said observation in para 3 of the said order that the amended plaint has
not been taken into account and what has been taken into account is only the
un-amended plaint. In the amended plaint the petitioner had also sought
CM(M) 1191/2016 Page 2 of 5
cancellation of the deed.
7. Further the petitioner has expeditiously within expiry of about 18 days
from the passing of the decree moved an application for rectification. It is
the respondent who has gone to the High Court and Supreme Court
challenging the decree.
8. Learned counsel appearing for the petitioner has, however, submitted
that the decree passed by the trial court got merged with the order of the
higher court hence the trial court lost its jurisdiction to carry out any
rectifications. He has relied upon the judgment of the Supreme Court in
Gojer Brothers Private Limited vs. Ratan Lal Singh, (1974) 2 SCC 453 to
press the issue of doctrine of merger.
9. Section 152 CPC reads as follows:-
"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."
10. It is clear that any clerical mistake in the judgment from any
accidental slip or omission may be corrected by the court at any time.
11. Even otherwise, the Gift Deed was executed by the respondent also.
Where the executant seeks for declaration of the documents to be null and
void, he is obliged to seek cancellation of the deed. Reference in this context
may be had to the judgment of the Supreme Court in Suhrid Singh @
Sardool Singh v. Randhir Singh & Anr., 2010 (12) SCC 112, where the
court held as follows:
"7. Where the executant of a deed wants it to be annulled, he
has to seek cancellation of the deed. But if a non-executant
CM(M) 1191/2016 Page 3 of 5
seeks annulment of a deed, he has to seek a declaration that the
deed is invalid, or non-est, or illegal or that it is not binding on
him. The difference between a prayer for cancellation and
declaration in regard to a deed of transfer/conveyance, can be
brought out by the following illustration relating to 'A' and 'B' --
two brothers. 'A' executes a sale deed in favour of 'C'.
Subsequently 'A' wants to avoid the sale. 'A' has to sue for
cancellation of the deed. On the other hand, if 'B', who is not
the executant of the deed, wants to avoid it, he has to sue for a
declaration that the deed executed by 'A' is invalid/void and
non- est/ illegal and he is not bound by it. In essence both may
be suing to have the deed set aside or declared as non-binding.
But the form is different and court fee is also different. If 'A',
the executant of the deed, seeks cancellation of the deed, he has
to pay ad-valorem court fee on the consideration stated in the
sale deed. If 'B', who is a non-executant, is in possession and
sues for a declaration that the deed is null or void and does not
bind him or his share, he has to merely pay a fixed court fee of
Rs. 19.50 under Article 17(iii) of Second Schedule of the Act.
But if 'B', a non- executant, is not in possession, and he seeks
not only a declaration that the sale deed is invalid, but also the
consequential relief of possession, he has to pay an ad-valorem
court fee as provided under Section 7(iv)(c) of the Act.
8. Section 7(iv)(c) provides that in suits for a declaratory
decree with consequential relief, the court fee shall be computed
according to the amount at which the relief sought is valued in
the plaint. The proviso thereto makes it clear that where the suit
for declaratory decree with consequential relief is with
reference to any property, such valuation shall not be less than
the value of the property calculated in the manner provided for
by Clause (v) of Section 7."
12. Hence, the legal position is that where the executant of a gift deed
seeks to avoid the gift deed, he has to sue for cancellation of the deed. As
per above judgment of the Supreme Court both reliefs, i.e. relief of
declaration that the deed is null and void and relief of cancellation of the
CM(M) 1191/2016 Page 4 of 5
deed may have the same effect but the form is different and court fees is
different. In view of the above and even otherwise, no prejudice is caused to
the petitioner. The Gift Deed has been declared null and void. The
cancellation of the deed is a consequential relief. The said relief was not
granted by the trial court by over sight as it did not notice the amended
plaint. No prejudice is caused to the petitioner.
13. The reliance of the petitioner on the doctrine of merger as stated by
the Supreme Court in the case of Gojer Brothers Private Limited vs. Ratan
Lal Singh (supra) is misconceived. Section 153 A CPC reads as follows:-
"153A. Power to amend decree or order where appeal is
summarily dismissed.- Where an Appellate Court dismisses an
appeal under rule 11 of Order XLI, the power of the court to
amend, under section 152, the decree or order appealed against
may be exercised by the court which had passed the decree or
order in the first instance, notwithstanding that the dismissal of
the appeal has the effect of confirming the decree or order, as
the case may be, passed by the court of first instance.
14. Hence, where an appellate court has dismissed the appeal as in the
present case, the court of first instance can continue to exercise powers
under Section 152 CPC.
15. Petition is without merits and is dismissed. All pending applications if
any also stand disposed of accordingly.
JAYANT NATH, J.
FEBRUARY 02, 2017/n
