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Vidyavati Bai Vs. Parkash Vati Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberI.A. No. 37 of 1976
Judge
Reported inAIR1976Delhi275; 12(1976)DLT77
ActsCivil Procidure Code, 1908 - Sections 152 and 153
AppellantVidyavati Bai
RespondentParkash Vati Devi and anr.
Appellant Advocate C.M. Bhandare and; A.N. Goyal, Advs
Respondent Advocate R.L. Tandon and ; M.L. Bhargava, Advs.
Cases Referred and L. Ram Chander Sarup v. Mazhar Hussain
Excerpt:
.....by court itself - jurisdiction to amend arises as court satisfied that there been accidental slip or omission - accidental slip or omission established by facts and circumstances - disallowing amendment would render decree as improper giving rise to complication - amendment allowed under section 153 in original application to remove accidental slip to prevent any future misunderstanding - correction permitted. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother..........father and guardian-ad-litem of defendants nos. 4 and 5. there was apparently an accidental slip or omission by the parties inasmuch as they were under an erroneous impression that defendant no. 2 was also guardian-ad-litem of defendants nos. 4 and 5 in addition to their being natural guardian. the court record shows that there was an order passed by p. n. khanna, j. on 15th july, 1959, whereby he had appointed defendant no. 3 as guardian-ad-litem of defendants nos. 4 and 5.2. on the aforementioned application, i. a. no. 1162/75 an order was passed by myself on 2nd may, 1975, granting defendant no. 2 leave to compromise the suit on behalf of the minor defendants. in that order, i stated,:-'i have gone through the terms of the compromise and i find that those terms are to the.....
Judgment:

1. The present application is under Sections 151, 152 and 153 of the Code of Civil Procedure. The application has been filed on 6th January, 1976, and is concerned with a suit which was decided by compromise on 2nd May, 1975. The suit was for partition and other reliefs instituted by the plaintiff, Shrimat Vidyavati Bai against Shrimati Parkash Vati Devi and others. The plaintiff was the first wife of the late Kanwar Krishna Chandra and the first defendant was the second wife. In the array of parties, Shri Mahesh Chandra son of the late Kanwar Krishna Chandra was shown as defendant No. 2 and Shrimati Usha Mahesh Chandra, his wife was shown as defendant No. 3. Defendants Nos. 4 and 5, namely, Kumari Vanita and Kunwar Raghav Chandra, the minor son and daughter of defendants Nos. 2 and 3 were shown as defendants Nos. 4 and 5 respectively. The parties proposed a settlement by which the entire suit was compromised, but there being minor defendants, the leave of the Court was sought on behalf of the minor defendants. The application moved in this behalf was signed by the plaintiff herself and her counsel Mr. A. N. Goyal, Advocate, by defendants Nos. 1, 2 and 3 and also by the Advocate for the defendants, Mr. R. L. Tandon, Advocate. It was also signed by one Shri Madho Pershad as guarantor. Unfortunately, this application was signed by Shri Mahesh Chandra in his personal capacity and as guardian for minor defendants 4 and 5. It was not signed by Shrimati Usha Mahesh Chandra in her capacity as guardian-ad-litem, Undoubtedly, Shri Mahesh Chandra, defendant No. 2 was the natural guardian of his minor children and he rightly signed the application in this capacity, but, Shrimati Usha Mahesh Chandra did not sign the application in her capacity as guardian-ad-litem. In the application itself, in Paragraph No. 1, it was stated that defendant No. 2 was the natural guardian, father and guardian-ad-litem of defendants Nos. 4 and 5. There was apparently an accidental slip or omission by the parties inasmuch as they were under an erroneous impression that defendant No. 2 was also guardian-ad-litem of defendants Nos. 4 and 5 in addition to their being natural guardian. The Court record shows that there was an order Passed by P. N. Khanna, J. on 15th July, 1959, whereby he had appointed defendant No. 3 as guardian-ad-litem of defendants Nos. 4 and 5.

2. On the aforementioned application, I. A. No. 1162/75 an order was passed by myself on 2nd May, 1975, granting defendant No. 2 leave to compromise the suit on behalf of the minor defendants. In that order, I stated,:-

'I have gone through the terms of the compromise and I find that those terms are to the benefit of the minors and are also beneficial to the other parties.'

I had noted before the quotation that the compromise was to the benefit of the minors, because two wills dated 24th April, 1965 and 25th February, 1966 were in question in the suit. In view of the fact that many transactions were under challenge in the suit, it seemed to be in the interest of the minors that the suit should be compromised. This largely was the ground on which the leave was granted. It is clearly apparent that the leave was granted to Shri Mahesh Chandra the natural guardian and not to Shrimati Usha Mahesh Chandra, guardian-ad-litem. Acting on the order, the parties then proceeded to accept the terms of the compromise and a judgment dated 2nd May, 1975, was Passed by myself accepting the compromise and directing a decree to be passed in terms thereof as noted in the aforementioned judgment. I am informed that the decree has in fact not been drawn up yet.

3. The present application, I. A. No. 37/76 has been moved to make necessary amendment in the orders and judgment passed on 2nd May, 1975, with a view to making them effective in respect of defendants Nos. 4 and 5 after permission had been granted to the guardian-ad-litem of those minor defendants. For the purpose of determining whether there has been any accidental slip or omission, I have recorded the statement of Mr. M. L. Bhargava, Advocate for defendant No. 3 and the statements of the counsel for the Plaintiff as well as the counsel for defendants Nos. 1 and 2. They are all agreed that there has been an accidental slip or omission. It is also otherwise obvious, that there has been an accidental slip or omission, because there was an order of the Court appointing defendant No. 3 as guardian-ad-litem. The leave has been given to defendant No. 2 to enter into the compromise. In fact, defendant No. 2 being the natural guardian of defendants Nos. 4 and 5 was, in Hindu Law, entitled to seek such leave but, as defendant No. 3 had been appointed gauardian-ad-litem, it was also necessary for her to seek the leave of the Court. The omission has now been brought to the notice of the Court, the Previous application was also signed by defendant No. 3 in her personal capacity and the present application has been signed in her personal capacity and also as guardian-ad-litem of defendants Nos. 4 and 5. It has been stated on her behalf that but for the accidental slip or omission, she would certainly have signed the original application on behalf of defendants Nos. 4 and 5 in her personal capacity and also as their guardian-ad-litem along with the other parties. She was strongly of the View that the compromise was in the interest of the minors. In fact, in my own order, I have recorded that the compromise was obviously to the benefit of the said minor defendants. Thus, from the circumstances, it is plain that there was an accidental slip or omission in the matter of moving an application for seeking the leave of the Court to enter into the compromise on behalf of the said minor defendants Nos. 4 and 5, being the minor children of defendants Nos. 2 and 3.

4. The question that remains to be decided is: What is the jurisdiction of the Court in this matter? It is plain that the accidental slip or omission is one that has taken place in the application itself. It is not one which was due to any accidental slip or omission by the Court itself. Yet, plainly, when one reads the order dated 2nd May, 1975, whereby permission was granted to defendant No. 2 to enter into the compromise on behalf of the minor defendants, he is shown therein as the guardian-ad-litem of defendants Nos. 4 and 5. For instance, it is stated in that order as follows:-

'The application is in substance an application for compromising the subject matter of the suit. Two of the defendants, namely, defendants 4 and 5 are minors, and defendant No. 2 is their natural guardian being their father and guardian-ad-litem. The second defendant seeks permission of the Court to grant leave to him to enter into the compromise on behalf of the said minor defendants 4 and 5.'

It is obvious from this passage, that the Court itself has taken defendant No. 2 to be the guardian-ad-litem of defendants Nos. 4 and 5. Obviously, this accidental slip or omission has crept in as a result of the application but, nevertheless, it is an accidental slip or omission being contrary to the orders of P. N. Khanna, J. passed on 15th July, 1969, about six years earlier. It, thereforee, seems that there should be no reason why this accidental slip or omission should not be corrected under Section 152 of the Code of Civil Procedure.

5. There is some conflict in the judgments brought to my notice concerning, whether an accidental slip or omission can be corrected if it is not due to an error of the Court. It has been held in Bela Debi v. Bon Behary Roy, : AIR1952Cal86 as follows:-

'I am not in favor 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.'

The learned Judge then proceeded to give reasons why the wider meaning should be given. A similar view has been expressed in Shahzad Khan v. Pt. Sheo Kumar, : AIR1957All133 , where it was held:-

'The Court can under Section 152 amend a clerical error in a decree although the error may have occurred on account of a mistake of the parties themselves in their pleadings and this mistake in the decree was on account of its being copied from the plaint.'

A somewhat different view has been expressed in Hamiduddin Ahmad v. Moyezuddin Mondal, Air 1946 Cal 336 and L. Ram Chander Sarup v. Mazhar Hussain, : AIR1919All264 , wherein it has been held that if the mistake is due to the failure of a party, then the procedure under Section 152 of the Code of Civil Procedure is not available. In fact, in the Calcutta case just quoted, it was stated that the proper procedure wag to have the decree set aside and to apply for retrial.

6. I think, that the result has largelv to depend on the nature of the mistake. If the mistake is an accidental mistake, i.e., an accidental slip or omission in which, for instance, the plaintiff misdescribes the property claimed in the suit and thereafter gets a decree, it may be open to the defendant to say that if the description was correct, he would have taken a different defense. thereforee, the nature of the mistake and the nature of the prejudice caused to the parties by having the omission corrected has a large bearing on the way in which the Court is to exercise Jurisdiction under Section 152 of the Code of Civil Procedure. Undoubtedly, I must note that the power to amend is uncontrolled. There is nothing in the Section indicating that the error must be one committed by the Court itself and not one which has been brought about due to some other reason. It is a different matter, when the Court having found that there is a mistake, may still refrain from correcting it in certain circumstances. For instance, if a plaintiff brings a suit mentioning the sum claimed in the suit as Rs. 1,500/- and then later claims that the suit was really for Rs 15,000/-, the Court may say that this sort of mistake cannot be rectified under Section 152 of the Code, even though the Court may find that in fact that was a mistake.

7. I do not, however, agree at all with the view that the mistake, error or omission giving rise to the exercise of jurisdiction under Section 152 of the Code of Civil Procedure must necessarily be one committed by the Court itself. The jurisdiction arises as soon as the Court is satisfied that there has been an accidental slip or omission. In the present case, there is obviously an accidental slip or omission. That accidental slip or omission had occurred first in the application seeking leave to enter into the compromise on behalf of defendants Nos. 4 and 5, inasmuch as in that application, defendant No. 2 was described as guardian-ad-litem of defendants Nos. 4 and 5. That accidental slip or omission has been repeated in the order of the Court inasmuch as defendant No. 2 has there also been recorded as being the guardian-ad-litem of defendants Nos. 4 and 5. Whatever way one looks at it, it is an accidental slip or omission and, thereforee, amenable to the jurisdiction under Section 152 of the Code of Civil Procedure. I, thereforee, proceed to correct the error in the Proceedings and accordingly correct the order passed in I. A. No. l162/75 on 2nd May, 1975. The result of the correction will be that leave will be deemed to have been given to both defendants Nos. 2 and 3 to enter into the compromise on behalf of the minor defendants Nos. 4 and 5. Defendant No. 2 has already been given leave and it will be deemed to have been given to him in his capacity as natural guardian and permission will be deemed to have been given to defendant No. 3 in her capacity as the guardian-ad-litem of defendants Nos. 4 and 5.

8. All the parties have joined together in this application and it has also been urged before me that the original application may be showed to be amended. I am a bit doubtful whether the application can be allowed to be amended after the quit has been decided. Furthermore, the cases show that the correction has to be made in the proceedings, i.e., in the judgment, decree or orders passed by the Court and need not be made in the original proceedings. For instance, if there is an accidental slip or omission in the proceedings, it may lead to an accidental slip or omission in the judgment or decree passed by the Court. Once the order, judgment or decree has been passed and the accidental slip or omission is brought to the notice of the Court. It is sufficient for the order or judgment or decree to be corrected with a view to removing the accidental slip or omission. However, the present case is somewhat unusual, because in this permission was granted to enter into a compromise and thereafter a compromise was entered into. The judgment on the compromise was passed on 2nd May, 1975, soon after the permission was given and a decree was ordered to be passed in terms of the compromise. The compromise itself is a part of I. A. No. 1162/75. If the original document is not allowed to be amended and the accidental slip or omission occurring therein not removed, there may be no proper decree and further complications may arise. I accordingly have to allow an amendment under Section 153 of the Code in the original application to remove the accidental slip or omission so as to prevent any future misunderstanding as to the scope of the compromise. The correction permitted to be made in L A. No. 1162/75 is as follows: In paragraph No. 1, there will be a correction in the beginning to read as follows:-

'That defendants Nos. 4 and 5 are minors and defendant No. 2 is their natural guardian and father and defendant No. 3 is the guardian-ad-litem.'

Further, it will be mid therein that 'defendants Nos. 2 and 3 being the guardians etc., instead of 'defendants No. 2 being the guardian'. In the prayer clause, the words will be: 'Defendants. 2 and 3 being the guardians etc., instead of that defendant No. 2 being the guardian. And, finally, under the signatures of defendant No. 3, it will be recorded: 'that she has signed in her personal capacity and as guardian-ad-litem for defendants Nos. 4 and 5'. The learned counsel for the parties have all agreed that these necessary changes may be made, before the Deputy Registrar, in the original application, I A. No. 1162/75, and for this purpose, the parties will appear before the Deputy Registrar on 14th January, 1976 and corrections made accordingly.

9. As a result of this discussion, the application is allowed. The accident, slip or omission occurring in I. A. No. 1162/75 is permitted to be corrected in the manner just indicated. The order passed in I. A. No. 1162/75 on 2nd May 1975, itself is hereby corrected to the extent indicated above. As the parties are agreed on this order there will be no order as to costs.

10. Application allowed


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