M/S Reward Hi-Rise Ltd. vs The State Of Jharkhand
2021 Latest Caselaw 772 Jhar

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  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P. (C) No. 2362 of 2013
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M/s Reward Hi-rise Ltd., a Company registered under Indian Companies Act, represented through its Director Kamal Kumar Agrawal son of Sri Bishwanath Agrawal, having its registered Office at 8/1, Balmukund Maker Road, 2nd Floor, Kolkata-700007 and head office at 39, Park Complex, Station Road, Durg, P.O. P.S. and District Durg (Chattishgarh) ...... Petitioner Versus

1.The State of Jharkhand

2.Mr. B.N. Rungta, son of late Ram Niwas Rungta, Resident of Inner Circular Road, besides S.P. Residence, P.S. Bistupur, Town Jamshedpur, District East Singhbhum at Jamshedpur ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Rohitasya Roy, Advocate Mr. K. Panda, Advocate

For the Respondents : Mr. P.C. Roy, S.C. (L & C) Mr. Manish Mishra, Advocate

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C.A.V on 11.02.2021 Pronounced on 18/02/2021 Per Sujit Narayan Prasad, J:

With consent of the parties, hearing of the matter

was done through video conferencing and there was no

complaint whatsoever regarding audio and visual quality.

2. The instant petition is under Article 227 of the

Constitution of India wherein order dated 21.01.2013

passed by Civil Judge (Senior Division)-VII, Jamshedpur in

Eviction Suit no. 2/99 has been questioned whereby and

whereunder the petition dated 10.12.2012 filed under

Sections 151 and 152 of the Code of Civil Procedure for

incorporating the name of the writ petitioner in the plaint,

judgment/decree, has been dismissed.

3. The brief facts of the case, as per the pleadings

made in the writ petition, read hereunder as:

The original plaintiff-Mr. Ajay Kumar B. Amin and

others filed Eviction Suit No. 2/99 for eviction of

respondent no. 2, the tenant, and recovery of arrears of

rent for shop bearing No. 3 and 10, located on the ground

floor of the building known as "Ansuya Sadan" situated at

Q-Road, Bistupur, P.S. Bistupur, Jamshedpur. The writ

petitioner approached to Mr. Ajay Kumar B. Amin and

others and showed his desire to purchase the land in

question along with structures standing thereon. By

agreement to sale both the parties entered into agreement

on 05.09.2011 for transfer of the aforesaid property in

favour of the present petitioner. The property in question

was purchased by the petitioner vide sale deed No. 7178

dated 14.11.2011 and thereafter he came to peaceful

possession of the aforesaid property.

The present petitioner being the owner of the

aforesaid property filed an application before the Court

below for impleading him as party in Eviction Suit No.

2/99. The Court below, after hearing both the parties,

came to the conclusion that the present petitioner is the

new landlord and the present Eviction Suit would be

continued with original plaintiffs and also passed the order

to implead the present petitioner as plaintiff along with

original plaintiffs and further directed the Office to

incorporate the name of the petitioner in the plaint, vide

order dated 09.02.2012. The petitioner along with original

plaintiff started appearing on the day to day proceeding in

Eviction Suit No. 2/99 on the notion that his name has

been incorporated by the office in the plaint.

The Court below, however, dismissed the Eviction

Suit No. 2/99 vide order dated 21.09.2012 and thereafter,

the petitioner applied for certified copy of the judgment

and decree, upon receipt thereof, he came to know that his

name has not been mentioned as plaintiff in the cause title

of the judgment and decree.

In the backdrop of these facts, the petitioner filed a

petition dated 10.12.2012 stating inter alia therein that

the name of the petitioner has not been mentioned as

plaintiff in the cause title of the plaint, judgment and

decree passed in Eviction Suit No. 2/99, which is a clerical

mistake on the part of the Office of the Court below and as

such it is necessary to rectify the error arising therein from

any accidental slip or omission by incorporating the name

of the petitioner.

The respondent no. 2 herein filed response to the

said petition on 18.12.2012.

The Court below after hearing the parties passed

order dated 21.01.2013 by dismissing the petition filed by

the petitioner vide order dated 21.01.2013, which is under

question in the present writ petition.

4. Mr. Rohitasya Roy, learned counsel for the

petitioner has submitted that the rejection of petition filed

under Sections 151 and 152 of the Code of Civil Procedure

is absolutely illegal and improper in view of the fact that

the impleadment of the petitioner as plaintiff along with

original plaintiffs has already been ordered by the Court

below vide order dated 06.02.2012 specifically directing

the Office of the Court below to incorporate the name of

the petitioner in the array of plaintiffs in cause title of the

plaint of the Eviction Suit No. 2/99, but the office did not

incorporate his name in the cause title of the plaint of

Eviction Suit, therefore, it is omission on the part of the

Office which will be said to be a clerical error or accidental

slip and as such, petition filed under Section 152 of the

Code of Civil Procedure is maintainable.

He further submits that order dated 06.02.2012

passed in Eviction Suit No. 02/99 whereby the name of

the petitioner was directed to be incorporated in the cause

title of plant of Eviction Suit No. 2/99 was never

challenged by respondent no. 2, as such the Court below,

while dealing with the petition of the writ petitioner filed

under Sections 151 and 152 of the Code of Civil

Procedure, ought to have taken into consideration the fact

that if petition filed under Section 152 of the Code of Civil

Procedure will be allowed no prejudice will be caused to

the respondent no. 2, the tenant, but without appreciating

these aspects of the matter, the petition filed under

Section 152 CPC was rejected.

He further submits that it is the petitioner who will

highly be prejudiced, if the impugned order dated

21.01.2013 is not quashed and the petition filed under

Section 152 CPC is not allowed, as the petitioner has now

become the landlord after transfer of the property in

question by the original plaintiffs in his favour and due to

non-insertion/incorporation of his name as plaintiff in

pursuance to order dated 06.12.2012 passed by Court

below in Eviction Suit no. 2/99, he even is not in a

position to file an appeal against the judgment/decree

passed in Eviction Suit No. 2/99 and, therefore, he has

been deprived from the right to challenge the

judgment/decree passed in the aforesaid Eviction Suit.

5. Mr. Manish Mishra, learned counsel for the

respondent no. 2 has submitted that after passing of the

judgment/decree the Court or the Tribunal becomes

functus officio and thus is not entitled to vary the terms of

the judgments, decrees and orders earlier passed. He

submits that the corrections contemplated are of

correcting only accidental omissions or mistakes and not

all omissions and mistakes which may have been

committed by the Court while passing judgment/decree or

order. He further submits that the omission sought to be

incorporated in the present eviction suit goes to the merit

of the case, which is beyond the scope of Section 152 CPC

and therefore, the Court below has rightly rejected the said

petition which suffers from no infirmity.

6. This Court has heard learned counsel for the

parties, perused the documents available on record as also

the findings recorded by the Court below while rejecting

the petition filed by the writ petitioner under Section 152

CPC.

This Court, before questioning the legality and

propriety of the impugned order, deem it fit and proper to

discuss about the provisions as contained under sections

151 and 152 of the Code of Civil Procedure, which reads

hereunder as:

"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."

Section 151 of the Code of Civil Procedure deals

with the inherent power of the Court under which the

petition has been filed by the petitioner invoking the

jurisdiction as conferred under section 151 of the Code of

Civil Procedure, which deals with amendment of

judgments, decrees or orders wherein it has been

submitted that 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.

The Hon'ble Apex Court in the case of Master

Construction Co. (P) Ltd vs. State of Orissa & Anr.

reported in AIR 1966 SC 1047, wherein it has been

observed that an arithmetical mistake is a mistake of

calculation; a clerical mistake is a mistake in writing or

typing whereas the error arising or occurring from

accidental slip or omission is an error due to careless

mistake or omission on the part of the Court is liable to

corrected.

Similarly, the Hon'ble Apex Court in the case of

Bai Shakriben (Dead) By Natwar Melsingh & Ors Vs.

Special Land Acquisition Officer & Anr. reported in

(1996) 4 SCC 533 has held that the omission to award

additional amounts under Section 23(1-A), enhanced

interest under Section 28 and solatium under Section

23(2) are not clerical or arithmetical mistake crept in the

award passed by the Reference Court but amounts to non-

award. Under those circumstances, the Reference Court

was clearly in error in entertaining the application for

amendment of the decree and is devoid of power and

jurisdiction to award the amounts under Sections 23(2),

23(1-A) and 28 of the Act.

Similar view has been taken by Hon'ble Apex Court

in the case of State of Bihar & Anr. Vs. Nilmani Sahu

& Anr. reported in (1996) 11 SCC 528, while interpreting

Sections 151 and 152 of the Code of Civil Procedure that

the High Court erred in reconsidering the matter under the

guise of arithmetical mistake and LPA would not lie

against amendment of decree by the learned Single Judge,

it is only revisable.

The Hon'ble Apex Court in the case of Dwaraka

Das Vs. State of M.P. & Anr. reported in (1999) 3 SCC

500 at paragraph 6 deals with Section 152 CPC, which as

under:

"6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate

of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting 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. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondent-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30-11-1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State."

It is evident from the aforesaid judgment that

Section 152 CPC provides for correction of clerical or

arithmetical mistakes in judgments, decrees or orders of

errors arising therein from any accidental slip or omission.

The exercise of this power contemplates the correction of

mistakes by the Court of its ministerial actions and does

not contemplate of passing effective judicial orders after

the judgment, decree or order.

It is settled position of law that after passing of the

judgment, decree or order, the court or the tribunal

becomes functus officio and thus being not entitled to vary

the terms of the judgments, decrees and orders earlier

passed. The corrections contemplated are of correcting

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.

If the omission sought to be corrected which goes to the

merits of the case that is beyond the scope of Section 152

of the Code of Civil Procedure, for which the prope r remedy

for the aggrieved party is to file appeal or review

application.

7. Therefore, this Court after going through the

statutory provision as contained under Sections 151 and

152 CPC and also judgments referred herein above, is of

the view that following principles amongst others, follow

from the decision and legal provisions noted above:

1.Under Section 152 of the Code of Civil Procedure, the Court may make correction in judgment, decree or order in respect of the following:

(a) Clerical mistakes.

(b) Arithmetical mistakes.

(c) Errors arising from any accidental slip or omission.

2. Error arising from any accidental slip or omission [mentioned in category (c) in Principle Number 1 above] may arise in the judgment, decree or order

(i) on account of any accidental slip or omission in the judgment, decree or order itself,

(ii) on account of any accidental slip or omission in the pleadings of the parties which travelled into the judgment, decree or order,

(iii) on account of any accidental slip or omission in any document wherefrom it travelled into the pleadings and from the pleadings, the same travelled into the judgment, decree or order.

3.Error in the judgment, decree or order arising under any of the categories (i), (ii), or (iii) in Principle Number 2 above, may be corrected under Section 152 of the Code of Civil Procedure.

It is further evident from the judgments referred

above that the Court has power to permit amendment of

pleadings and thereafter, make correction in the judgment,

decree or order regarding accidental slip or omission.

Further, power to correction under Section 152 Code of

Civil Procedure should not be exercised when rights of

third party get involved and are likely to be adversely

affected.

8. The fact of the case in hand, which is not in

dispute is that the present petitioner has entered into

shoes of the plaintiffs after purchase of the property in

question by virtue of sale deed No. 7178 dated 14.11.2011.

He has purchased the property during pendency of the

Eviction Suit No. 2/99 and, therefore, he filed a petition

for his impleadment as plaintiff to the said suit.

The respondent no. 2, the tenant (defendant) filed

rejoinder to the said petition stating therein that the

petition filed by third person to be impleaded as plaintiff is

not maintainable and further submission was made that

the petitioner purchased the property with full knowledge

regarding pendency of the suit and as such he is not a

bona fide purchaser and his purchase is subject to the

verdict of the Court below, therefore, the alleged purchase

is invalid as the same is conveyed without taking leave of

the Court and the petitioner cannot continue the suit with

same cause of action as stated in the plaint.

The Court below, after having heard learned

counsel for the parties and taking into consideration the

provisions of Section 11 of the Bihar Building (Lease, Rent

& Eviction) Control Act, 1947, which provides sale of

premises by the landlord during pendency of the suit, the

new landlord also joining in the suit for eviction. It further

appears from the said order that the after allowing said

petition vide order dated 06.02.2012 direction was issued

upon the office to add the name of petitioner as plaintiff

no. 2 in the suit. The relevant portion of order dated

06.02.2012 is reproduced herein below:

"Heard. It is settled principle of law that under Section 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1947,

sale of premises by the landlord during the pendency of the suit the new landlord also joining in the suit for eviction. The case for eviction would continue and the new landlord too shall also be impleaded as plaintiff and merely because the original landlord has transferable interest and the new landlord had stepped into his shoes. It cannot be said that the ground on which the original landlord could evict the tenant has vanished. In the present suit the landlord has sold the property consisting of the suit premises to the petitioner vide a registered deed of sale dt 05.11.2011 during the pendency of the suit. Hence in the facts and circumstances it is clear that the petitioner as per his prayer shall also be impleaded as the plaintiff alongwith the original plaintiff. It is therefore ordered that the petitioner is ordered to be added as plaintiff no. 2 in the present suit. As per his prayer, under order 22 Rule 10 C.P.C. Office is directed to incorporate the name of the petitioner as per order. Put up on 9.2.12 for argument on behalf of plaintiff."

(Own emphasis)

It is admitted fact that order dated 06.02.2012 has

never been questioned by respondent no. 2, the tenant and

as such the same has attained its finality.

After passing of order dated 06.02.2012, the matter

was proceeded for hearing and finally vide order

21.09.2012 the eviction suit was dismissed.

After obtaining the certified copy of the

judgment/decree, it came to the knowledge of the

petitioner that in spite of order dated 06.02.2012 the name

of the petitioner has not been inserted either in the plaint

or in the judgment and decree passed by the Court below

and as such petitioner filed a petition under Sections 151

and 152 of the Code of Civil Procedure for making

necessary correction treating the omission of the office as

accidental one but the said petition was dismissed vide

order dated 21.01.2013.

9. This Court, in the light of the aforesaid admitted

facts, as has been derived from the record of the case, is to

answer the following questions for proper adjudication of

the lis:

(I).Whether non-insertion of the name of the

petitioner in the plaint, as per order dated

06.02.2012 passed by the Court below, is an

accidental one?

(II). Whether, the application filed under Section 152

of the Code of Civil Procedure for making necessary

correction in the plaint, judgment/decree, since

rejected, is if allowed shall cause any prejudice to

respondent no. 2

(III).Whether non-insertion of the name of the

petitioner as plaintiff no. 2 in the eviction suit, as

per order dated 6.02.2012 will prejudice the case of

the petitioner?

10. So far as first issue, 'Whether non-insertion of the

name of the petitioner in the plaint, as per order dated

06.02.2012 passed by the Court below, is an accidental

one' is concerned, it has been discussed in the preceding

paragraphs by making reference of order dated 06.02.2012

whereby and whereunder on contest the petition for

impleadment of the petitioner as plaintiff has been allowed

by the Court below with direction upon the office for

addition of the petitioner as plaintiff no. 2 in the plaint of

the suit, but admittedly the office has not added the name

of the petitioner in the memo of plaint of the suit in

pursuance to order dated 06.02.2012. It is further

admitted that order dated 06.02.2012 has not been

questioned by respondent no. 2 and since it is a judicial

order, which attained its finality, whereby direction was

passed upon the office to make necessary correction by

adding the petitioner in the plaint as plaintiff no. 2, but

office having not discharged its duty, the same will amount

to omission on the part of the office of the Court below and

as such the same will be treated to be an accidental slip in

view of the ratio laid down in the case of Master

Construction Co. (P) Ltd vs. State of Orissa & Anr.

(supra) wherein it has been observed that a clerical

mistake is a mistake in writing or typing whereas the error

arising or occurring from accidental slip or omission is an

error due to careless mistake or omission on the part of

the Court is liable to corrected, therefore, in view of order

dated 06.02.2012, according to considered view of this

Court since there is gross mistake on the part of the Court

by not adding the petitioner as plaintiff no. 2 in pursuance

to order dated 06.02.2012, it will come under the fold of

accidental slip on omission which required to be corrected

in view of the provisions as contained in Section 152 of the

Code of Civil Procedure.

So far as issue no. II, Whether, the application filed

under Section 152 of the Code of Civil Procedure for making

necessary correction in the plaint, judgment/decree, since

rejected, is if allowed shall cause any prejudice to

respondent no. 2, is concerned, according to considered

view of this Court question of prejudice will only come

when the party is not knowing about the factual aspect of

the matter, but herein the petitioner filed petition for

addition as plaintiff , which was allowed on contest vide

order dated 06.02.2012, which has never been questioned

by respondent no. 2 and, therefore, it will be said that

addition of the name of the petitioner in pursuance to

order dated 06.2.2012 passed in Eviction Suit No. 2/99

will not prejudice the case of respondent no. 2.

So far issue no. 3, Whether non-insertion of the

name of the petitioner as plaintiff no. 2 in the eviction suit,

as per order dated 6.02.2012 will prejudice the case of the

petitioner, is concerned according to considered view of

this Court since the present petitioner has purchased the

suit property and by virtue of that filed application for

insertion of his name as plaintiff no. 2, which having been

allowed on contest but due to gross mistake on the part of

the Court the required insertion has not been done in the

plaint and in consequence thereof his name has not come

either in the plaint of the suit or judgment/decree of the

suit.

Now the question is that when the present

petitioner has purchased the property and his purchase

has been found to be correct under the provisions of Bihar

Building (Lease, Rent & Eviction) Control Act, as would be

evident from order dated 06.02.2012, which does not bar

purchase of the property by the third person during

pendency of the Eviction suit and in such circumstance

since he is not party to the proceeding now he has lost in

the suit, is not in a position to prefer appeal before the

higher forum and as such due to non-insertion of his

name in the plaint and consequently in the judgment and

decree, his right to avail the statutory forum of appeal is

being denied.

In view of said fact that there cannot be any

dispute that the right of the present petitioner is being

prejudiced due to non-insertion of his name in the plaint

and judgment/decree and thereby if the application filed

by the petitioner would not be allowed, he will be subjected

to prejudice. Issue No. III is answered accordingly.

11. In view thereof, this Court is of the view that the

nature of correction sought for by filing petition under

Section 152 of the Code of Civil Procedure cannot be said

having the nature of order which is going to change the

nature of judgment/decree since by insertion of his name

either in the plaint or in the judgment/decree issue of

merit is not going to be changed and thereby it will not

cause any prejudice to the case of respondent no. 2.

In that view of the matter, nature of the merit is

not going to change by insertion of his name by allowing

petition filed under Section 152 of the Code of Civil

Procedure which cannot be said that the Court below has

come functus officio after passing the judgment/decree.

12. Petition under Section 152 of the Code of Civil

Procedure is meant for the purpose to make necessary

correction even after passing of the judgment, if it is being

asserted that there is a mistake, by way of mistake of

calculation; a clerical mistake in writing or typing, error

arising out of or occurred from accidental slip or omission

due to gross mistake on the part of the Court, the same

liable to be corrected, but the learned Court below, without

appreciating the scope of provisions of Section 152 of the

Code of Civil Procedure, has passed the order which

cannot be said to be sustainable in the eyes of law for the

reason, discussed herein above.

13. Accordingly, this Court in exercise of power

conferred under Article 227 of the Constitution of India, is

of the view that the said order is liable to be quashed,

accordingly order dated 21.01.2013 is quashed and set

aside.

In consequence thereof, the Court below is directed

to make necessary correction in the plaint and

judgment/decree of Eviction Suit No. 2/99 by making

necessary correction as per order dated 06.02.2012 passed

by the Court below.

14. With the aforesaid observations and directions, the

writ petition stands allowed.

(Sujit Narayan Prasad, J.) Alankar/-

N.A.F.R