Delhi High Court
Manu Ramchandani vs M/S Three N Constructions Pvt Ltd & ... on 28 March, 2017
$~A-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28.03.2017
+ CM(M) 305/2017
MANU RAMCHANDANI ..... Petitioner
Through Mr.Sudhanshu Batra, Sr. Advocate
with Mr.Gaurav Dubey and Mr.Shashwat
V.Dubey, Advocates
versus
M/S THREE N CONSTRUCTIONS PVT LTD & ORS.... Respondent
Through Mr.Ashish Mohan and Mr.Mohit
Kumar, Advocates
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
CM No.10450/2017
Exemption allowed, subject to all just exceptions.
CM(M) 305/2017 & CM No.10449/2017
1. By the present petition filed under Article 227 of the Constitution of
India the petitioner seeks to impugn the order dated 28.01.2017 by which the
trial court disposed of three applications filed by the respondent/plaintiff
under Section151 CPC, under Section 152 and 153 CPC and under Order 6
Rule 17 CPC.
2. The background facts are that the respondents filed a suit for recovery
of possession, recovery of money, mesne profit, damages, use and
occupation charges against the petitioners in respect of property No.M-36,
GK-I Market, First Floor, New Delhi. On 21.9.2013 the trial court decreed
the suit. The petitioners have filed an appeal being RFA No.71/2014 against
the said decree which is pending consideration. The said appeal is listed on
the Regular Board.
3. It is somewhere around that stage that the respondent seems to have
realised that there is a misdescription in the plaint of the suit property which
has been described as "first floor" whereas it is actually "ground floor".
Based on the same, the present application has been filed for
correction/amendment of the judgment and decree dated 21.9.2013. It may
be noted that this court where the appeal is pending, namely, RFA 71/2014
by order dated 11.5.2016 has granted liberty to the trial court to decide the
applications filed by respondents for correction, subject to rights and
contentions of the petitioner.
4. I have heard learned counsel for the parties. Learned senior counsel
appearing for the petitioner has vehemently argued that the respondent
cannot take advantage of their negligence. He submits that in the cross-
examination of the petitioner, it had been staed that the address mentioned in
the plaint is incorrect. He submits that despite the said deposition of the
petitioner the respondents were negligent and took no steps to amend the
plaint. He relies upon judgment of the Supreme Court in State of Punjab vs.
Darshan Singh in Appeal (civil) 8497-8408/2003 to contend that the
corrections which are sought to be made by the trial court by the impugned
order cannot be termed to be clerical corrections.
5. Learned counsel for the respondent has pointed out that in the course
of cross-examination of D1W1, the trial court had noted the deposition of
the said witness that he has nothing to do with the first floor and is in
occupation of the ground floor. Regarding this submission of D1W1 the trial
court had noted that henceforth the suit shop is described as stated in the
deposition. He also points out that no prejudice was caused to the petitioner
as alongwith the plaint a site plan was filed which clearly depicted the
location of the suit property as that of the ground floor and mezannine floor.
6. A perusal of the impugned order would show that the trial court has
noted the cross-examination of D1W1 which took place on 2.8.2013 and the
order of the trial court noting that henceforth the suit shop mentioned in the
deposition shall mean the suit property. It also noted that no prejudice was
caused to the petitioners by the wrong description of the property and
allowed the application of the respondent under section 152 and 153 CPC.
The application under Order 6 Rule 17 CPC was disposed of as redundant.
7. Section 152 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."
8. The Supreme Court in the case of Pratibha Singh & Anr. vs. Shanti
Devi Prasad & Anr., AIR 2003 SC 643 was dealing with a case where a
correct, specific and exact description of the immovable property forming
subject matter of the suit was missing. In those facts, the Supreme Court
held as follows:-
"2. Failure on the part of plaintiffs to give correct, specific and
exact description of the immovable property forming subject-
matter of suit, added by omission on the part of the Trial Court
to insist on compliance by the draftsman of the plaint with the
rules of pleadings, has resulted in a decree which is yet to
witness its full execution and satisfaction though the litigation
has by this time stretched over two decades.
......
17. When the suit as to immovable property has been decreed
and the property is not definitely identified, the defect in the
court record caused by overlooking of provisions contained in
Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of
being cured. After all a successful plaintiff should not be
deprived of the fruits of decree. Resort can be had to
Section 152 or Section 47 of the CPC depending on the facts
and circumstances of each case -- which of the two provisions
would be more appropriate, just and convenient to invoke.
Being an inadvertent error, not affecting the merits of the case,
it may be corrected under Section 152 of the CPC by the Court
which passed the decree by supplying the omission.
Alternatively, the exact description of decretal property may be
ascertained by the Executing Court as a question relating to
execution, discharge or satisfaction of decree within the
meaning of Section 47 CPC. A decree of a competent Court
should not, as far as practicable, be allowed to be defeated on
account of an accidental slip or omission. In the facts and
circumstances of the present case we think it would be more
appropriate to invoke Section 47 of the CPC."
9. The facts of the present case are somewhat identical i.e. a case of
misdescription of the property. What the petitioner seeks to do is to deny to
the respondent the fruits of a decree that has been passed against the
petitioner
10. In the present case there are several facts which show that there is a
clerical mistake in description of the property by the plaintiff/respondent in
the plaint, and that no prejudice was caused to the petitioners as the
petitioners always understood the property in question being subject matter
of the suit to be the property, namely, ground floor and mezannine floor in
question of which the petitioners were the tenants.
11. The respondents have placed on record before this court the siteplan
annexed with the plaint. The siteplan correctly described the location of the
property as ground floor and mezannine floor.
12. Similarly, in the cross-examination of D1W1 on 2.8.2013 the court
had noted as follows:-
"I am known by name of Manohar as well as Manu
Ramchandani. The suit shop is situated in M-Block Market,
G.K.-I, New Delhi on the ground floor. The area of suit shop
is approximately 300-350 sq.feet. (Vol. The suit shop as
described in plaint is located on first floor and I have nothing
to do with First floor shop thus the shop under our occupation
and possession is on the ground floor numbered as M-36B,
located on ground floor and area of which is approx. 300-350
sq.ft. together with the work shop which is located on the rear
side of the said shop.
The area of rear work shop is approx. 100-120 sq.ft.
The suit shop in total would be around 400-470 sq.ft.
(Hence forth the suit shop mentioned in the deposition will
mean as such)."
13. In the light of the above two facts, it is manifest that no prejudice has
been caused to the petitioners. The petitioners were all along aware that the
property in question which is subject matter of the suit is the property as
described in the site plan, namely, ground floor and mezannine floor. What
the petitioners are trying to do is actually render the decree passed by the
trial court as redundant on technicalities which the petitioner cannot be
permitted to do.
14. There is no infirmity in the impugned order which would warrant any
interference by this court. The trial court has rightly exercised powers under
Section 152 CPC to correct the description of the property.
15. There is no merit in the present petition. Petition is dismissed. All
pending applications, if any, also stand disposed of accordingly.
JAYANT NATH, J
MARCH 28, 2017
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