Madhya Pradesh High Court
Butto Bai vs Dumri (Deceased) Heirs Jainwati on 7 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 07 th OF FEBRUARY, 2024
CIVIL REVISION No. 256 of 2023
BETWEEN:-
1. BUTTO BAI W/O LAKSHMAN GOUD, AGED ABOUT
56 YEARS, R/O KUTELI, P.S. BARELA, DISTRICT
JABALPUR (MADHYA PRADESH)
2. PYARI BAI W/O SURESH KUMAR GOUD, AGED
ABOUT 53 YEARS, R/O VILLAGE DHANWAHI P.S.
BIJADANDI DISTRICT MANDLA (MADHYA
PRADESH)
.....APPLICANTS
(BY MS.KRATIKA INDURAKHIYA - ADVOCATE)
AND
1. DUMRI S/O SADDU GOUD (DECEASED) THROUGH
LEGAL HEIRS
JAINWATI W/O LATE DUMRI LAL GOUD, AGED
ABOUT 65 YEARS, R/O VILLAGE-GHOTA, P.S.
BIJADANDI, TAHSIL NARAYANGANJ, DISTRICT
MANDLA (MADHYA PRADESH)
2. GAYATRI D/O LATE DUMRI LAL GOUD, AGED
ABOUT 28 YEARS, R/O VILLAGE-GHOTA, P.S.
BIJADANDI, TAHSIL NARAYANGANJ, DISTRICT
MANDLA (MADHYA PRADESH)
3. MOHAN LAL S/O LATE DUMRI LAL GOUD, AGED
ABOUT 35 YEARS, R / O VILLAGE-GHOTA, P.S.
BIJADANDI, TAHSIL NARAYANGANJ, DISTRICT
MANDLA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI DURGESH SINGRORE - ADVOCATE)
This revision having been heard and reserved for orders coming on for
pronouncement this day, JUSTICE HIRDESH passed the following:
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 09-02-2024
19:12:27
2
ORDER
I n this civil revision the applicants/revisionists being aggrieved by the
impugned order dated 11.3.2023 passed by Civil Judge Class-II, Junior
Division, Niwas, District Mandla in MJC No.36/2022 whereby the application
filed by applicants under section 152 of the Code of Civil Procedure (for short
"CPC") has been dismissed.
2. Brief facts of the case are that applicants/plaintiffs are daughters
and respondent/defendant is son of Late Saddu Goud. The applicants/plaintiffs
filed Civil Suit No.33-A/2016 for declaration, partition and separate possession
over one-third share in their father's property. The trial Court vide judgment and
decree dated 11.3.2017 held that each applicant/plaintiff has one-third share in
father's property. The respondent/defendant being aggrieved with the judgment
and decree of the trial Court preferred First Appeal before the District Judge,
Mandla which was registered as Civil Appeal No.62-A/2018. The learned lower
appellate Court affirmed the judgment and decree of the trial Court vide
judgment and decree dated 07.10.2022 and dismissed the appeal.
3. It is further averred that on account of inadvertence on the part of
applicant's counsel the disputed property were mentioned as "Khasra Nos.188,
198, 265 admeasuring 3.09 hectares" in the plaint, whereas the correct number
and area of Khasra is "Kh.No.188, 198 & 165 admeasuring 3.90 hectares". The
respondent/defendant never raised any objection in this regard. The written
statement filed respondent/defendant to Civil Suit No.233-A/2016 has been
brought on record as Annexure-A/5. It is stated from perusal of judgment dated
11.3.2017 it is clear that on 16.5.2018 there is mention of mistake in area as
"3.09 hectares" and correct area is "3.90 hectares".
4. On 15.11.2022 the applicants/plaintiffs filed an application under
section 152 of CPC for changing Khasra No.265 into Khasra No.165. It is
submitted that there is no dispute of identity of disputed land and both the
courts below have mentioned in their judgment and decree as Khasra No.188,
165 & 198. The trial Court also discussed about renumbering of khasra as
mentioned in Exhibit-P/3 and also mentioned current Khasra No.165 and its
earlier Khasra No.98. But, the trial Court by impugned order rejected the
application without appreciation of material available on record. Hence, this civil
revision by the applicants/plaintiffs.
5. This revision has been filed by the applicants/plaintiffs on the
ground that bare perusal of impugned dated 11.3.2023 it would be clear that
same has been passed without properly appreciating the fact that parties went
on trial and adduced, both oral and documentary, evidence in respect of the suit
property and there was no dispute as to the identity of the suit property. It is
further stated that trial Court in paragraph 28 of the judgment held that plaintiffs
have a right to equal share in Khasra No.188, 165 and 198 alongwith the
defendant. It is further submitted that there is no dispute of identity of disputed
land, then if any party has committed error in mentioning wrong Khasra number
of land, then it can be rectified by way of section 152 of CPC and accordingly,
prayed for allowing the application and setting aside the impugned order.
6. Learned counsel for the applicants submitted that by default in
place of Khasra No.165, it was wrongly mentioned as Khasras No.265. She
als o submitted that trial Court as well as lower appellate Court in their
judgments and decrees mentioned Khasra No.165. The trial Court as well as
lower appellate Court have already mentioned in their judgment as Khasra
No.165. She also submitted that according to re-numbering slip ('parchi') the
Khasra No.98 was allotted new number as "Khasra No.165".
7. The learned counsel for the respondent/defendant has prayed for
rejection of this civil revision and submitted that that application was barred by
provision of Order 2 Rule 2 of CPC.
8. Heard learned counsel for the parties and perused the record as
also the impugned order. It has been found that the applicants filed aforesaid
civil suit before the trial Court by mentioning Khasra No.265 area 0.30 hectares
and the trial Court passed the judgment and decree in favour of the plaintiffs
and mentioned Khasra No.265 area 0.30 hectares.
9. Learned Single Judge of Punjab & Haryana High Court in Civil
Revision No.660/1976 [Mohinder Singh and others Vs. Teja Singh and others]
vide order dated 29.8.1978 held that section 152 of CPC gives power to rectify
any mistake in the judgment, decree or order or errors arising therein from
accidental slip or omission and it must include an accidental slip or omission
traceable to the conduct of the parties themselves. No doubt the Court cannot
go into the disputed questions regarding the principle in dispute, but if the
mistake is so palpable that nobody can possibly have any doubt as to what the
parties meant or what the Court meant when it passed the judgment, decree or
order, such a correction can be made even under section 152 of the Code.
10. Learned Single Judge of Allahabad High Court in case reported
in 2005 SCC OnLine All 1273 [In re:Km.Mona d/o Late Brij Raj Singh]
(Testamentary Case No.5/2004 decided on 05.12.2005) has referred to
decision in delivered on Appat Krishna Poduval Vs. Lakshi Nathiar, AIR
1950 Madras 751 and held in paragraph 59 as under:-
" 5 9 . The Madras High Court held that where an
application was filed for correction of an error as
regards the survey numbers of an item of property in
the plaint schedule and the decree schedule and there
was no dispute as regards the identity of the property
or boundaries to it, the amendment could be allowed
under section 152, Code of Civil Procedure. It was
further held that the asssignment deed of the property
also had the same errors could not disentitle the
plaintiffs to have the errors set right if they were
entitled to it under the Code of Civil Procedure. It
was further laid down that the amendment could not
be refused on the ground that the decree sought to be
amended was barred by limitation."
11. The Apex Court in the case of Niyamat Ali Molla Vs.
Sonargon Housing Cooperative Society Limited and others, (2007) 13 SCC
421 in paragraph 21 referred to paragraph 20 of decision of Calcutta High
Court in the case of Bela Debi Vs. Bon Behary Roy, AIR 1952 Cal. 86
which lays down as under:-
"20. I shall now state, what in my opinion, is the true
meaning of Section 152, Civil Procedure Code. I am
not in favour of giving a narrow construction to Section
152. I do not agree that Section 152 must necessarily
refer to an 'accidental slip or omission' of the Court
itself, or its ministerial officers. It does not say so in the
section itself, and should not be interpreted as such.
Where it is the Court's own accidental slip or omission,
or that of its ministerial officers, there can be no doubt
that the section applies. But it gives power to rectify
any accidental slip or omission in a judgment, decree
or order, and might include an accidental slip or
omission traceable to the conduct of the parties
themselves. But it must be an 'accidental slip or
omission'. A mistake made by the parties in a deed
upon which the suit is founded, and repeated in the
judgment, decree or order, may or may not be an
'accidental slip or omission'. Where it is clear, that
such is the case, then I do not see why the Court cannot
set it right. In doing so, what is going to be rectified is,
the judgment decree or order, and it is not at all
necessary to rectify either the pleadings or the deed. In
making such corrections, however, the Court can only
proceed on the footing that there could be no
reasonable doubt as to what it really intended to say in
its judgment, decree or order. It cannot go into any
disputed questions. If there is a particular description
of a property in a deed, and a suit has been instituted
on the strength of that description, and a decree
passed, it is not permissible in proceedings under
Section 152 to go into disputed questions as to what
property was intended to be dealt with, by the parties
in the deed. I agree with Gentle, C.J. that such a
question can only be dealt with, in appropriate
proceedings under the Specific Relief Act (see T.M.
Ramakrishnan Chettiar v. G. Radhakrishnan Chettiar
[AIR 1948 Mad 13] ). But it may so happen that the
mistake is so palpable that nobody can possibly have
any doubt as to what the parties meant or what the
Court meant when it passed its judgment, decree or
order. For example, suppose in a conveyance a
property is described as '24 Chowringhee Road,
Bhawanipur'. It would be clear to everybody what
property was meant, and it cannot be seriously
doubted that in stating that the property was in
'Bhawanipur', the parties had committed an
'accidental slip or omission'. In such a case, I would
not go to the extent of holding that the Court has no
power to correct the judgment, decree or order which
has repeated the mistake. In doing so, the Court need
not correct the pleadings or the document but its own
decision. In my opinion, it is not necessary in such a
case to amend the pleadings or to rectify the deed,
therefore, no question arises as to whether the Court
has power to do so. It is, however, quite clear that such
cases must be of rare occurrence, and the scope thereof
is severely limited. The power cannot be extended to the
resolving of controversial points, and a decision as to
what the parties intended or did not intent to do. Apart
from this exceptional case, I hold that the Court cannot
correct errors anterior to the proceedings before it. For
such a purpose, the proper proceeding is by way of a
suit under Section 31, Specific Relief Act. To this
extent, I agree respectfully with the view enunciated by
Gentle, C.J. in T.M. Ramakrishnan Chettiar v. G.
Radhakrishnan Chettiar [AIR 1948 Mad 13] and the
view expressed by Young, J. in Shujaatmand Khan v.
Govind Behari [AIR 1934 All 100 (2)] . Applying these
principles to the facts of this case, I think that the
rectification asked for is impossible. If there has been a
mistake in the original agreement it is a mistake which
is fundamental, and it is impossible without going into
evidence, to decide as to what the parties meant. There
are facts in favour of the contention put forward by
either party and I cannot describe it as an error (if
there is at all any error) as can be called 'an
accidental slip or omission' as contemplated in Section
152. In any event, such slips or omissions cannot be
rectified in proceedings under Section 152 or even
under Section 151 of the Code."
12. In the above case Niyamat Ali Molla (supra) in paragraph 22
the Apex Court also referred to decision in the case of Lakshmi Ram Bhuyan
Vs. Hari Prasad Bhuyan, (2003) 1 SCC 197, in which, in paragraph 14 it has
been held as under:-
"14. ... In our opinion, the successful party has no other
option but to have recourse to Section 152CPC which
provides for clerical or arithmetical mistakes in
judgments, decrees or orders or errors arising therein
from any accidental slip or omission being corrected at
any time by the court either on its own motion or on the
application of any of the parties. A reading of the
judgment of the High Court shows that in its opinion the
plaintiffs were found entitled to succeed in the suit. There
is an accidental slip or omission in manifesting the
intention of the court by couching the reliefs to which the
plaintiffs were entitled in the event of their succeeding in
the suit. Section 152 enables the court to vary its
judgment so as to give effect to its meaning and intention.
Power of the court to amend its orders so as to carry out
the intention and express the meaning of the court at the
time when the order was made was upheld by Bowen,
L.J. in Swire, Re, Mellor v. Swire [(1885) 30 Ch D 239
(CA)] subject to the only limitation that the amendment
can be made without injustice or on terms which preclude
injustice. Lindley, L.J. observed that if the order of the
court, though drawn up, did not express the order as
intended to be made then
'there is no such magic in passing and entering an order
as to deprive the court of jurisdiction to make its own
records true, and if an order as passed and entered does
not express the real order of the court, it would, as it
appears to me, be shocking to say that the party
aggrieved cannot come here to have the record set right,
but must go to the House of Lords by way of appeal."
13. In the present case, the suit was filed for partition and possession
b y the applicants/plaintiffs before the trial Court by mentioning the Khasra
No.265 area 0.30 hectares. It is stated that Khasra No.265 was wrongly
mentioned, as the actual Khasra number is 165. From perusal of record of trial
Court, document Exhibit-P/3 reflects that Khasra No.165 is mentioned. There is
no mention of Khasra No.265. According to Exhibit-P/4 which is P-II Khasra
Form there is also mention of Khasra No.165 but no mention of Khasra
No.265. Further, from perusal of paragraph 18 of judgment of trial Court there
is mention of Khasra No.165. In paragraph 28 also there is mention that
plaintiffs Butto Bai, Pyari Bai and son-Dumari are entitled in equal shares of
Khasra No.188, 165 and 198. The first appellate Court also mentioned in
paragraph 08 that the land being Khasra No.165 in place of 265. So,
considering the documents it is clear that Khasra No.265 area 0.30 has wrongly
b een mentioned in place of Khasra No.165. Therefore, in view of above
discussion it is clear that there is no dispute of identity of the disputed land. As
per case laws referred to above the Apex Court has held that it can be rectified
under the provision of section 152 or even in under section 151 CPC, if there is
no dispute with regard to identity of disputed land.
14. Thus, in the considered opinion of this Court in present case
due to mistake occurred on account of accidental slip it has been mentioned in
plaint as Khasra No.265 in place of Khasra No.165 and the same was not even
taken note of by the defendants while contesting the suit. Infact, there was no
dispute with regard to identity of land. It has been established in various
decisions referred to above that if there is not dispute of identity of land, then
correction of Khasra number can be effected. Therefore, it is required that
necessary correction be made in the plaint, judgments and decrees of the trial
Court as also of lower appellate Court under section 152 of CPC.
15. Consequently, the trial Court committed error of law in not
allowing the application of applicants under section 152 of CPC. Hence, the
impugned order of the trial Court dated 11.3.2023 is set aside. Let necessary
amendment be carried in the plaint and judgements & decrees of both the
courts below.
16. In the result, the civil revision is disposed of accordingly.
(HIRDESH)
JUDGE
RM
