Rafiqa vs Raja And Another
2023 Latest Caselaw 1242 j&K/2

                                                                            S. No. 27
                                                                            Regular Cause List
 IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                 OWP no. 1505/2018

Rafiqa
                                                             ...Appellant(s)/Petitioner(s)
Through: Mr. Rizwan un Zaman, Advocate

                                            Vs.

Raja and another
                                                              ...Respondent(s)
Through: Mr. Shuja ul Haq, Advocate

CORAM:
          HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
                                        ORDER

04.10.2023

In this petition, the petitioner challenges the order passed by the Trial court, who while exercising powers under Section 152 CPC has passed a fresh decree on 06.06.2018. The suit was pending before the Trial court seeking declaration and also perpetual injunction. The said suit was decreed by the Trial court on 17.02.2018 by passing the following decree:

"...Defendants are directed not to cause any interference directly or through any other agency into the share of the plaintiff which is to be calculated and apportioned accordingly by the Collector with further direction that any disposal of the property made by the defendants 1 and 2 is subject to the outcome of the result of the suit".

The operative portion of the judgment on the basis of which the decree was drawn reads as under:

"...So far as issue no. 7 is concerned as what has been stated hereinabove while dilating upon the aspects of the issues so framed the plaintiff is entitled to a decree of declaration declaring her entitled to the estate of the father Rasool Bhat (deceased) as a daughter simplistor owning to the passing if Shariat Application Act, 2007, because all the daughters owing to the Rule of Decision which is Shariat Application Act will succeed to the estate of the estate holder as daughters simplistor because a will in favour of legal heir is not permissible or valid, however, in respect of stranger it is valid only up to 1/3rd and given regard to the concept of inheritance, there is no concept of disinheritance under Shariat law in matters of Succession and inheritance, with further relief that the agreement entered into followed by a decree is of no consequence and cannot bind the interests of the plaintiff. With a consequential relief of injunction,

OWP no. 1505/2018

directing defendants not to cause any interference directly or through any other agency in to the share of the plaintiff which is to be calculated and apportioned, accordingly, by the Collector. With further direction that any disposal of the property made by the defendants 1 and 2 is subject to the outcome of the result of suit. Office is directed to prepare a decree sheet accordingly. File shall be consigned to records after its due compilation."

After passing of the decree, the plaintiff made an application seeking rectification of the decree dated 17.02.2018. The ground taken in the application seeking rectification is that the decree reflects only a part of the relief granted in favour of the plaintiff and formal pronouncement in terms of main relief is not forth coming in the decree and further defendants 3 and 4 have been dropped from the array of defendants vide order dated 18.06.2004, and to that extent as well the judgment and decree needs correction in the cause title. The said application was objected by the petitioner- defendant and in para 2 and 3 of the objections, the defendant- petitioner submitted that nothing was stated in the relief para of the judgment and same has been reflected in the decree sheet and there was no clerical error in the judgment and decree to invoke the provisions of Section 152 of CPC.

Learned Sub-Judge, Anantnag, while dealing with the application passed a detailed order and while invoking the provisions of Section 152 of CPC, passed a fresh decree which is as under:

"...For the foregoing reasons and discussion made hereinabove the application succeeds and the court while drawing the operative part of the judgment which will represent the correct intention of the court in forming the judgment and decree. Accordingly, judgment shall be read as:

That a decree in the shape of declaration is passed in favour of the plaintiff to the extent that she is entitled to share out of estate of father Rasool Bhat deceased to the extent of 10 Kanals and 09 Marlas comprising in survey No. 232 situated at Fatehgar and landed estate comprising in Khewet No. 87, Khata No. 268 situated at Sarnal Anantnag and also entitled to cancellation of decree rendered in file No. 256 dated 22.08.1988 referred to in a suit titled Mst. Rafiqa Vs. Rasool Bhat dated 05.09.1988 passed by Ld. Munsiff Anantnag and with further relief of perpetual injunction against the defendants restraining them not to cause interference with the share of the plaintiff to the extent of 2/5th or recovery of possession. Office is directed to prepare a decree in terms of the judgment."

Section 152 of CPC, is specific in its application, which reads as under:

OWP no. 1505/2018

"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."

It is clear from the plain reading of Section 152 of CPC that the power of the Court thereunder is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission and there cannot be reconsideration of the merits of matter and sole object of the provision is based on the maxim actus curiae neminem gravabit, i.e., an act of court shall prejudice no man.

The prayer, sought in the application by the plaintiff, was clearly beyond the scope of Section 152 of CPC. By passing the fresh order, Trial court has exceeded its jurisdiction and while passing the fresh decree, it has gone beyond the scope of the said provision. Therefore, the order passed by the Trial court i.e. order dated 06.06.2018, and the decree passed thereon is beyond the scope of provisions of Section 152 of CPC, is therefore, quashed. Disposed of.

Respondents in case, were aggrieved, ought to have taken recourse to provisions of law available.

(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 04.10.2023 "Imtiyaz"