Virender vs Krishna & Ors.
2019 Latest Caselaw 685 Del

$~32
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                          Date of Order: 04.02.2019
+                             C.R.P. No.30/2019
        VIRENDER                                    ..... Petitioner
                              Through: Mr. Kunal Manav, Advocate.
                              versus

        KRISHNA & ORS.                                   ..... Respondents

        CORAM:
        HON'BLE MR. JUSTICE VINOD GOEL
                     ORDER

% 04.02.2019 C.M. No.5231/2019 (for exemption)

1. Allowed, subject to all just exceptions.

2. The application is disposed of.

C.R.P. No.30/2019 & C.M. No.5230/2019 (stay)

3. The impugned order dated 24.11.2018 passed by the court of learned Additional District Judge-03, West District, Tis Hazari Courts, Delhi ('ADJ') dismissing the application of the petitioner/defendant No.1 under Section 152 of the Code of Civil Procedure, 1908 ('CPC') for amendment in the preliminary decree dated 21.03.2017 in Civil Suit No.7648/2016, is the subject matter of challenge in this revision petition.

4. The Civil Suit No.234/2014/07 (New No.607648/2016) for partition and permanent injunction in respect of the property in question was filed by three daughters of late Sh. Jugti Ram, namely, Smt. Krishna (R-1), Smt. Bhupinder Kaur (R-2) and Smt. Pritam Kaur (R-3) against their four brothers, namely, Virender (appellant), Dilbagh (R-4), Pritam (since deceased) represented by his legal heirs Jitender @ Monu (R-5), and Amarjeet (R-6); their sister Rajwati (R-7); and one prospective buyer Smt. Suman. During the pendency of the suit one of the defendants, Pritam had died on 09.10.2010. An application under Order 22 Rule 4 read with Section 151 CPC was filed by one Jitender for his substitution in his place. On 07.05.2011, the learned ADJ noted 'This is a suit for partition and permanent injunction. Proposed LR Sh. Jitender claims himself to be an adopted son of defendant No.3 in whose favour defendant No.3 had executed a registered Will dated 29.09.2010. Without making any comment on the authenticity of the adoption or the alleged registered Will dated 29.09.2010, in view of no objection given on behalf of the plaintiff, right to sue survives against the said LR of deceased defendant No.3. Therefore, I allow the application and substitute him as defendant No.3.' It is apparent that on no objection being given, application for impleadment of Jitender was allowed. Since, late Jugti Ram left behind his four sons and four daughters, a preliminary decree of partition was passed on 21.03.2017 holding that all four

daughters i.e. Smt. Krishna, Smt. Bhupinder Kaur, Pritam Kaur and Smt. Rajwati and three brothers, namely, Virender, Dilbagh, Amarjeet and only legal heir of other son Pritam, namely, Jitender are entitled to 1/8th share each. An appeal being RFA No.856/2017 filed by the petitioner challenging the preliminary decree dated 21.03.2017 was dismissed by this Court by order dated 11.10.2017.

5. After about one year of dismissal of his RFA by this Court, the petitioner/defendant No.1 has very conveniently moved an application under Section 152 CPC on 14.09.2018 to plead that since the Will in favour of Jitender has not been proved, he was not entitled to any share in the property in question and the plaintiffs No.1 to 3 and defendants No.1, 2, 4 and 5 should have been given 1/7th share each. The learned counsel for the petitioner states, at bar, that this plea was never taken by the petitioner either during arguments before the learned ADJ before passing preliminary decree or in the said RFA. The claim of Jitender being the adopted son of Pritam was never disputed by the petitioner at the time of his impleadment by order dated 07.05.2011 or thereafter. The petitioner in the garb of the present application cannot be permitted to raise this plea after having lost his appeal without taking this plea.

6. Even otherwise, the petitioner is estopped by his own act and conduct to raise this plea in the garb of an application under

Section 152 CPC. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates for the correction of mistakes by the court of its ministerial or clerical actions. However, it does not intend for the passing of effective judicial orders after the judgment, decree or order in question has been passed. The powers under Section 152 CPC are neither to be equated with the power of review nor can they be said to be similar to that of review. The section does not cloak the Court concerned with the power of review of the judgment earlier rendered (in its entirety, or any part of it) under the guise of correcting a clerical error. The corrections contemplated in Section 152 CPC are only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. It cannot be pressed into service to correct an intentional omission or mistake, however erroneous it may be. A mistake which goes into the merits of the case is beyond the scope of Section 152 as the Court is looking into it for the first time. The proper remedy for the aggrieved party, in such a situation, is to file an appeal or revision before the higher forum or review application before the same forum, subject to the conditions and limitations provided therein. The Petitioner has unsuccessfully availed of this remedy by appeal being RFA No.856/2017

without taking such plea. No court can, under the cover of the aforesaid section, modify, alter or add to the terms of its original judgment, decree or order.

7. In the present case, the mistake which the petitioner seeks to get corrected goes into the merits of the case which is beyond the scope of Section 152 CPC. The Petitioner under the pretext of getting a typographical error corrected, for the first time, questioned the adoption of Defendant No.3 for his convenience. The Hon'ble Supreme Court has made this position very clear in State of Punjab v. Darshan Singh (2004) 1 SCC 328 which reads "No new arguments or re-arguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case." Since there is clearly no typographical, clerical or arithmetical mistake in the judgment and decree dated 21.03.2017, there is no merit in the petition. The Petition along with application, being CM No. 5230/2019, is dismissed with cost of Rs. 25,000/- to be deposited in the Delhi High Court Advocates' Welfare Trust. Receipt shall be placed on record within 15 days. In case of non-compliance, Registry shall place the matter for hearing.

VINOD GOEL, J.

FEBRUARY 04, 2019 "sandeep"