Kaur Singh vs Manohar Singh
2022 Latest Caselaw 7972 P&H

                            IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                           317                                            CR No.5425 of 2019
                                                                          Date of Decision : 28.07.2022


                           Kaur Singh                                                          ....Petitioner

                                                              VERSUS

                           Manohar Singh                                                    ....Respondent

                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                           Present :     Mr. Sandeep K. Sharma, Advocate for the petitioner.

                                         Mr. Himanshu Chhabra, Advocate for
                                         Mr. Jaideep Verma, Advocate for the respondent.


                           ALKA SARIN, J. (Oral)

The present revision petition has been filed under Article 227 of

the Constitution of India for setting aside order dated 16.08.2019 whereby

the Trial Court has dismissed an application filed under Sections 151 and

152 of the Code of Civil Procedure, 1908 (for short 'CPC') for correction of

the plaint.

Learned counsel for the petitioner would contend that

inadvertently Khasra No.30 of Khata No.181/197 was not mentioned in the

original plaint at the time of filing of the suit for specific performance. On

the basis of pleadings of the parties and the evidence on record the suit was

decreed vide judgment and decree dated 08.08.2017. Appeal preferred by the

defendant-respondent was dismissed vide judgment and decree dated

19.07.2018. It is further the contention that it is only at the time of execution

of the decree that it came to the notice of the petitioner that Khasra No.30 of

Khata No.181/197 had inadvertently not been mentioned in the plaint.

Learned counsel for the petitioner further submits that the said Khasra No.30 JITENDER KUMAR 2022.07.29 10:45 I attest to the accuracy and authenticity of this order/judgment Chandigarh

of Khata No.181/197 stands duly mentioned in the agreement to sell dated

01.12.2010. It has further been pointed out that even in the impugned order

dated 16.08.2019, it has been noticed that Khasra No.30 of Khata

No.181/197 finds mention in the agreement to sell dated 01.12.2010.

Learned counsel for the petitioner has placed reliance on the

judgments of this Court in cases of Sampuran Singh (deceased) through

LRs vs. Satbir Singh and Ors. [2019(1) CivCC 42]; Kulwinder Kaur vs.

Paramjit Singh & Ors. [2016(2) RCR (Civil) 908]; Pradeep Kapoor vs.

Laxmi Narain Kapoor & Ors. [2011(6) RCR (Civil) 2102]; Saudagar

Singh vs. Amir Singh & Ors. [2009(4) RCR (Civil) 638] and Mohinder

Singh & Ors. vs. Teja Singh & Ors. [1978 PLR 728] to contend that an

error arising out of an accidental slip or omission in the plaint can be

rectified under Section 152 CPC.

The learned counsel for the respondent has vehemently argued

that correction cannot be carried out in the plaint under Sections 151/152

CPC.

I have heard learned counsel for the parties.

In the present case, as noticed in the impugned order, Khasra

No.30 of Khata No.181/197 finds mention in the agreement to sell dated

01.12.2010. However, due to an inadvertent omission the said Khasra

number was not mentioned in the plaint. The total area qua which the suit

was filed was 1 Bigha 9 Biswas and 17 Biswansis. The suit was filed qua

the following land :

(i) Land measuring 0B-4B-7B, Khata No.118/134, Khasra

No.670 (2-0-0), 671 (2-0-0), JITENDER KUMAR 2022.07.29 10:45 I attest to the accuracy and authenticity of this order/judgment Chandigarh

(ii) Land measuring 0B-1B-10B, having 30/800 share of 2B-

0B-0B, Khata No.121/137, Khasra No.878 (2-0-0),

(iii) Land measuring 0B-1B-12B, having 32/240 share from

0B-12B, Khata No.124/140, Khasra No.677 (0-12-0),

(iv) Land measuring 0B-9B-1B, having 181/300 share from

0B-15B-0B, Khata No.179/195, Khasra No.40 (0-15-0),

(v) Land measuring 0B-4B-0B, having 88/3133 share from

7B-16B-13B, Khata No.181/197, Khasra No.29 (2-0-0),

38 (2-0-0), 44 (1-16-13),

(vi) Land measuring 0B-9B-7B, having 187/1798 share from

4B-9B-18B, Khata No.115/131, Khasra No.652 (1-16-5),

654 (1-14-18), 655 (0-18-15), as per jamabandi for the

year 2007-08 situated in village Dudhaal, Tehsil Payal,

District Ludhiana.

If Khasra No.30 of Khata no.181/197 is added only then the total of the suit

land would come to 1 Bigha 9 Biswas and 17 Biswansis.

In the case of Saudagar Singh (supra), it has been held as

under :

"5. A Full Bench of this Court had actually dealt with

a situation where the amendment was sought at lower

Appellate Court when the matter had earlier been

dismissed on merits by the High Court. The decision

was Dayawanti Vs. Yadvindra Public School 1996(1)

RRR 111 in which Full Bench was answering a

reference of the power of a lower court to entertain an JITENDER KUMAR 2022.07.29 10:45 I attest to the accuracy and authenticity of this order/judgment Chandigarh

application for amendment when the case had been

concluded in the higher forum. The mistake in the order

of District Court was pointed out by the High Court

under two circumstances namely, that the matter had

been sent to the District Court for consideration of the

amendment petition only by the High Court and under

such circumstances, the District Court ought not to have

abdicated its powers and found itself as having no

power to dispose of the case. Secondly the power to

correct accidental error or omission under Section 152

empowers the Court to correct any such mistake at any

time either on its own motion or on the application of

any of the parties. According to the Full Bench any such

order passed by the Court does not amount to passing a

decree and such an amendment does not in any way

affect the merit of controversy, which has been

determined by the Court and so even when such an

unamended judgment has been affirmed by the superior

court, it does not preclude the Court which passed the

decree from correcting such an order. The Full Bench

ruled that the doctrine of merger in such a situation was

clearly misplaced.

6. The obvious fall out of the decision of the Full

Bench is that the principles that could govern

amendment of a decree where a decision of lower Court JITENDER KUMAR 2022.07.29 10:45 I attest to the accuracy and authenticity of this order/judgment Chandigarh

gets merged with an Appellate Court decision would be

different from cases where there is merely an

amendment through correction of accident slip or

omission or an arithmetical mistake found in the decree

of the lower court. This mistake could be either by the

court or it could result out of a mistake inadvertently

originating in the pleadings that gets transported to all

other proceedings right from the judgment and decree at

the trial Court to the higher forum. A party who applies

for amendment in such a case does not really substitute

a different property nor does he claim any new right to

any property not already in suit. He does what the

judgment even otherwise provides but the judgment does

not give a proper expression by its inherent error or

omission.

7. Applying the above principle what the plaintiff was

trying to do was an inclusion of reference to Khasra

No.14 of an extent of 8 kanals which was obviously an

accidental omission in the plaint and therefore, in the

decree and the plaintiff was not introducing the said

item which had in any way been rejected in the

judgment. The definite case which found favour with all

the Courts is the plaintiff's entitlement to secure a

decree for 48 kanals and the 48 kanals itself could not

have been obtained except with reference to Khasra JITENDER KUMAR 2022.07.29 10:45 I attest to the accuracy and authenticity of this order/judgment Chandigarh

No.14 of an extent of 8 kanals. The plaintiff was making

a correction to conform to what the trial Court expressly

found in his favour and affirmed upto the High Court.

The decision of the Court below allowing the

application for amendment under such circumstances

conforms to law."

In view of the above, I deem it appropriate to allow the present

revision petition and to set aside the impugned order dated 16.08.2019. The

application filed by the petitioner under Sections 151 and 152 CPC for

correction of the plaint stands allowed.

Disposed off in the above terms. Pending applications, if any,

also stand disposed off.

                                                                                      ( ALKA SARIN )
                           28.07.2022                                                     JUDGE
                           jk

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

JITENDER KUMAR 2022.07.29 10:45 I attest to the accuracy and authenticity of this order/judgment Chandigarh