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Pema Bhavsingh Vs. Dhanya Salam - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 529 of 1966
Judge
Reported inAIR1972MP211; 1972MPLJ378
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152
AppellantPema Bhavsingh
RespondentDhanya Salam
Appellant AdvocateT.N. Vyas, Adv.
Respondent AdvocateD.K. Dixit, Adv.
DispositionRevision allowed
Cases ReferredNathuram v. Arjuna
Excerpt:
- - naturally, a party cannot steal any success in litigation by presenting the subject-matter as one thing and later on by asking for a correction......was made to the tehsildar mentioning of course plot nos. 236 and 238 of khata no. 34 in village isakpurkhedi. after about two years the tehsildar found that the applicant was really meaning this khata and these plot numbers in vill age lunera; but the decree mentioning isakpurkhedi he would not effect the mutation till the village name was corrected by the court that passed the decree. accordingly the applicant went to the court about two years after the decree with an application on 2-3-1966 and asked for a correction under section 152. the trial court found, which is not disputed, that the lands about which the parties to the suit had had some difference were plot nos. 236 and 238 in khata no. 34 in village lunera and not in isakpurkhedi; in fact the plot numbers in the.....
Judgment:
ORDER

H.R. Krishnan, J.

1. This is an application by the decree-holder in a title suit from an order of the trial Court refusing to correct in exercise of its powers under Section 152, Civil P. C. the decree in one particular, namely, the name of the village in which the suit land is located. The facts are very simple and the obvious requirement of justice is that the correction should be made; but the argument has been as to whether this can be done properly under Section 152. Civil P. C.

2. There is no doubt that the naming of the wrong village was an accidental slip on the part of the plaintiff at the first instance which has naturally been carried over into the judgment and the decree. But the question is whether the clerical or arithmetical mistakes and accidental slips and omissions mentioned in Section 152 are only those for which the Court is solely responsible, or include those where a party having committed a mistake it has been brought into the Court's orders; two other incidental questions are of academic interest only in this case; firstly, the effect of the phrase 'at any time' and secondly, whether or not between the making of the decree and the seeking of the correction the other party has acquired a vested interest in the property If the correction may not be made under Section 152, we have to consider whether it could not be made under any other provision.

3. The story as far as we are concerned is extremely simple. The plaintiff who is the applicant here brought a suit for the declaration of his title in respect of two plots bearing Khasra Nos. 236 and 238 in Khata No. 34 in a village about the name of which there was confusion. He now says that the land la situated in village Lunera; but he had by mistake mentioned Isakpurkhedi because the defendant was living there. There was really no contest and the defendant having admitted the claim the suit was decreed on 20-3-1964. This being agricultural land mutation had to be sought and accordingly the appropriate application was made to the tehsildar mentioning of course plot Nos. 236 and 238 of Khata No. 34 in village Isakpurkhedi. After about two years the tehsildar found that the applicant was really meaning this khata and these plot numbers in vill age Lunera; but the decree mentioning Isakpurkhedi he would not effect the mutation till the village name was corrected by the Court that passed the decree. Accordingly the applicant went to the Court about two years after the decree with an application on 2-3-1966 and asked for a correction under Section 152. The trial Court found, which is not disputed, that the lands about which the parties to the suit had had some difference were plot Nos. 236 and 238 in Khata No. 34 in village Lunera and not in Isakpurkhedi; in fact the plot numbers in the khata and the areas all indicate beyond doubt that they are in village Lunera there being no such numbers with these areas in Isakpurkhedi. It was not the case of the defendant either in the trial Court or even here that there were some lands in Isakpurkhedi about which the parties had any difference; still the trial Court would not effect the correction because according to it it was not a mistake of the kind that Section 152 was meant to remedy.

4. Firstly, we have to see whether the prayer for correction having been made after two years any party has acquired a vested interest in the meanwhile. This is not the position here, There is no limitation as such for action under Section 152; but it is expected that the party seeking the assistance of the Court acts with diligence which can be called proper and sufficient in the circumstances of the case. If the party has been unduly negligent the Court may hesitate because others might have during this interval acquired a vested interest. Where during the interval other parties have not acquired any interest in the subject-matter of the litigation, a correction under Section 152 can be made ''at any time.'

5. Again, the section speaks oi clerical or arithmetical mistakes and accidental slips or omissions. Naturally these would be on the first appearance those committed by the Court; but then the Court might either be fully responsible for it or as in the instant case might be just carrying over into its iudgment and decree the wrong particulars given in the plaint. The wording is so general that it will cover both types of mistakes and slips and omissions. Thus in appropriate cases it is possible for the Court to remedy, subject to equities if any acquired by other parties' mistakes committed by it not on its own initiative but by copying the statement of one of the parties. Naturally, a party cannot steal any success in litigation by presenting the subject-matter as one thing and later on by asking for a correction. But where there is justa falsa demonstratio in regard to the subject-matter of the litigation, and it has not led to any confusion or mistake in the mind of the other party, and has not affected the merits oi the decision Section 152 can certainly be invoked.

6. Both the parties have cited case law a fair sampling of which is given below. 'It was held in Appat Krishna v. Lakshmi Nathiar, AIR 1950 Mad 751.

'Where an application is 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 is no dispute as regards the identity of the property or boundaries to it, the amendment, may be allowed under Section 152. The fact that the assignment deed of the property also has the same errors cannot disentitle the applicants to have the errors set-right if they are entitled to it under the Code. So also, the amendment cannot be refused on the ground that the decree sought to be amended is barred by limitation.

In Narkulla Venkayya v. Noona Satya-narayana, AIR 1959 Andh Pra 360 itwas held :

'In appropriate cases where mistakes have arisen by reason of inadvertence in entering wrong survey number in the plaint, the Court has ample powers under Section 152 to correct such mistakes which have crept into the judgment and decree. But this power can be exercised by the Court passing the decree. If the trial Court's decree has been superseded by the appellate Court's decree or has merged into the same, it is only the appellate Court and not the trial Court which can rectify the mistake.'

The applicant has also filed the unreported judgment in Hatia v. Mangtibai. Civil Revn. No. 378 of 1956 decided at Indore on 20-2-1958 (Madh Pra).

7. As against it, the respondent has cited the case reported in Nathuram v. Arjuna, AIR 1954 Madh Bha 14 where the position was quite different. The defendant against whom the decree was obtained was described by name and parentage and subsequently an amendment was sought changing them. This amounted to a basic change and not merely the correction of an inadvertent mistake. The position would have been different if the identity of the person being independently established the question of description by name and parentage was immaterial; but that was not the case there. Accordingly this case does not affect the validity of the principle set out above.

8. On behalf of the opposite party it is urged that such a correction can be made only after amending the plaint, and once the plaint is amended there will be occasion for an amended written-statement. Certainly, an amendment of the plaint is implied because the mistake has originated in the plaint. If it was the Dosition of the defendant-opposite party that he would have a separate case in regard to the plots in village Lunera which he did not have in respect of the plots stated to be in Isakpurkhedi, there would be a case for further inquiry; but that is not the position of the defendant. He admits that there are no such plots in Isakpurkhedi about which there is any difference.

9. The result is that the application is allowed and it is directed that the decree be corrected by deleting the name 'Isakpurkhedi' and noting 'Lunera' as the location of the plots which have already been set out there. In the special circumstances of the case there is no order for costs.


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