Jayeshbhai Jamnadas Vasani vs Na
2021 Latest Caselaw 5017 Guj

        C/SCA/5864/2021                                         JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 5864 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1    Whether Reporters of Local Papers may be allowed                     No
     to see the judgment ?

2    To be referred to the Reporter or not ?                              Yes

3    Whether their Lordships wish to see the fair copy                    No
     of the judgment ?

4    Whether this case involves a substantial question                    No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                          JAYESHBHAI JAMNADAS VASANI
                                     Versus
                                      NA
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Appearance:
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                 Date : 05/04/2021

                                ORAL JUDGMENT

1. The Petitioner by way of this Petition invoke the extraordinary jurisdiction vested in this Hon'ble Court under Article 226 of the Constitution of India as well as supervisory jurisdiction vested under Article 227 of the Constitution of India and thereby seeks to challenge absolutely illegal, arbitrary and unjustified order dated 4.2.2021 passed by the learned Civil

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Judge, Rajkot below Exh.19 in Civil Miscellaneous Application No.292 of 2019, whereby the learned Judge has rejected the application submitted by the petitioner herein inter alia seeking to amend the boundaries erroneously mentioned in the judgment as well as heirship certificate.

2. Heard learned Advocate Mr. H.J.Karathiya for the Petitioner through video conference.

The Respondent is not a party to the proceedings either before the learned Trial Court or before this Court.

3. The matter requires consideration. Rule.

4. Learned Advocate for the Petitioner has contended that the learned Trial Court has not appreciated that the learned court is vested with such power as per Section 152 of the Code of Civil Procedure, however, without considering that aspect, the learned Trial Court has rejected the application submitted by the Petitioner herein. It is further contended that a very short issue is involved with regard to the description of the property which is wrongly mentioned in the schedule of the application, which is also reflected in the judgment as well as heir-ship certificate and therefore the Petitioner moved an application seeking to amend the description of the property mentioned in the judgment as well as in the heir-ship certificate. It is submitted that the mistake is a bonafide mistake. Subsequently, the learned Trial Court has passed order to the effect that whatever the boundaries are mentioned in the petition is proper. Later on, the petitioner came to know that the boundaries mentioned in the order by the learned Trial Court is not befitting to the map and therefore he again moved to the learned Trial Court but the learned Trial Court has disallowed the same on the ground that whatever the boundaries are mentioned are in accordance with the earlier petition. Learned Advocate for the Petitioner has submitted that if the changes are permitted, that would not cause any prejudice to anyone.

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5. To buttress his submission, learned Advocate for the Petitioner has placed heavy reliance upon the judgment of the Hon'ble Apex Court in case of Tilak Raj Versus Baikunthi Devi (D) By Lrs. Reported in 2009 (0) AIJEL SC 42946 and the judgment of the Hon'ble Apex Court in case of Niyamat Ali Molla v. Sonargon Housing Co-operative Society Limited reported in 2007 (0) AIJEL SC 39980 and submitted that if there is some technical mistake or there is any bona fide mistake, the learned Trial Court is empowered to modify the mistake in the interest of the parties for further transactions.

6. Learned Advocate for the Petitioner has further placed reliance upon Sections 151 and 152 of CPC which reads as under:

"151 - Saving of inherent powers of Court - Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.

"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.

7. The Hon'ble Apex Court in a judgment in case of Tilak Raj v. Baikunthi Devi (D) By Lrs. (supra) has observed as under:

"14. The aforesaid mistake was of clerical nature which could have been corrected by applying the provisions of Section 152 of the CPC. Counsel appearing for the respondents also during his submissions fairly accepted the aforesaid position. The remedy that was available to the appellant was to file an application seeking for amendment of the decree by way of correcting the clerical mistake in respect of Khasra Number. Since the mistake was clerical in nature and the appellant

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being not responsible for the said clerical mistake which had occurred due to wrong recording of Khasra Number in Khasra Girdawari, we find no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising the powers under Section 152 of the CPC. In K. Rajamouli vs. A.V.K.N. Swamy, (2001) 5 SCC 37, this Court held as follows:-

"Section 152 provides that a clerical or arithmetical mistake 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".

15. Since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the courts should not bind itself by the shackles of technicalities."

7.1 The Hon'ble Apex Court in a judgment in case of Niyamat Ali Molla v. Sonargon Housing Co-operative Society Limited (supra) has observed as under:

"18. Section 152 of the Code of Civil Procedure empowers the Court to correct its own error in a judgment, decree or order from any accidental slip or omission. The principle behind the said provision is actus curiae nemenim gravabit, i.e., nobody shall be prejudiced by an

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act of court.

19. Code of Civil Procedure recognises the inherent power of the court. It is not only confined to the amendment of the judgment or decree as envisaged under Section 152 of the code but also inherent power in general. The courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion, should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the Court both in exercise of its power under Section 152 as also under Section 151 of the Code of Civil Procedure. Such a power of the court is well recognized.

26. It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. It is also not a case where by reason of an amendment, one property is being substituted by the other. If the Court has the requisite power to make an amendment of the decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. If the appellant herein did not file any written statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate-Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule was missing, the same by itself would not be a ground to interfere with the

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impugned order.

27. So far as the application for impleadment of the applicants are concerned, they being not parties to the suit are not bound by the decree. They would, thus, be entitled to take recourse to such remedies which are available to them in law including filing of an application under Order 21 Rules 97 and 99 of the Code of Civil Procedure, if any occasion arises therefor. As and when the said applicants take recourse to law, the same has to be determined in accordance with law."

8. Therefore, in view of the decision cited at bar by the learned Advocate for the Petitioner and Section 151 coupled with Section 152 of CPC, this Court is required to interfere in the order passed by the learned Trial Court and ex facie it appears that the order is required to be quashed and set aside.

9. In the present case, learned Advocate for the Petitioner has placed reliance only upon the lay out map which is part of the sale deed, but this one is not the only document wherein the Petitioner can become the author of the boundaries. Therefore, the Petitioner is at liberty to move before the learned trial court to place the important evidence for arriving at the correct boundaries and the Trial Court shall exercise discretion under Section 151 coupled with Section 152 of CPC in the interest of justice and pass necessary orders. The matter is remanded back to the learned Trial Court to decide afresh after production of documents and the learned Trial Court may decide the same within 8 weeks from the date of receipt of the copy of this order. The present petition is allowed . The prayer in terms of paragraph 12(A) is granted. Rule is made absolute.

(A. C. JOSHI,J) J.N.W