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Rania Vs. Smt. Kamla Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 59 of 1974
Judge
Reported inAIR1976HP57
ActsCode of Civil Procedure (CPC) , 1908 - Section 152
AppellantRania
RespondentSmt. Kamla Devi and anr.
DispositionPetition allowed
Cases ReferredN. Subramonia Iyer v. Joseph George
Excerpt:
civil - error - petitioner filed suit for possession by preemption of land - decree passed in favour of petitioner by senior sub judge - petitioner filed application before senior-sub judge for correction of judgment and decree - petition dismissed by senior-sub judge on ground that petitioner himself had made error in pliant - appeal - in case of any clerical error court had to substantial justice - court competent to correct any clerical mistake, clerical or arithmetical which has crept in decree, pliant or written statement itself so as to give effect to decree - held, duty of senior-sub judge to have corrected this typographical order in decree. - .....no. 58, khasra no. 49 in favour of the plaintiff and against the defendant. the sale price of the suit land measuring 46 kanals 10 marlas is rs. 15,500/- and accordingly the sale price of the decretal land measuring 11 kanals comes out to be rs. 3666-66 paise. the plaintiff has deposited rs. 3100/- as preemption money and the remaining amount of rs. 566.66 paise is directed to be deposited within one month of the passing of the present decree failing which the suit of the plaintiff shall be deemed to have been dismissed. the plaintiff shall get the proportionate costs of the suit'.2. the decree-holder filed an application purporting to be one under sections 151 and 152 of the code of civil procedure for correction of the judgment and decree, wherein khata no. 38 has been wrongly.....
Judgment:
ORDER

C.R. Thakur, J.

1. Rania petitioner had filed a suit for possession by pre-emption of the land as detailed in the head-note of the plaint. A decree was passed accordingly in his favour by the Senior Sub Judge, Kangra at Dharamsala, on 29th April 1972. The operative part of the decree reads as under:

'I therefore, grant a decree for possession by way of pre-emption of 11 kanals of land entered in Khata No. 58, Khasra No. 49 in favour of the plaintiff and against the defendant. The sale price of the suit land measuring 46 Kanals 10 marlas is Rs. 15,500/- and accordingly the sale price of the decretal land measuring 11 Kanals comes out to be Rs. 3666-66 paise. The plaintiff has deposited Rs. 3100/- as preemption money and the remaining amount of Rs. 566.66 paise is directed to be deposited within one month of the passing of the present decree failing which the suit of the plaintiff shall be deemed to have been dismissed. The plaintiff shall get the proportionate costs of the suit'.

2. The decree-holder filed an application purporting to be one under Sections 151 and 152 of the Code of Civil Procedure for correction of the judgment and decree, wherein Khata No. 38 has been wrongly inserted as khata No. 58 and' that this was an inadvertent clerical mistake which could be rectified. This petition was dismissed by the Senior Sub Judge by his order, dated 25-9-1974 holding that:

'In para 2 of the plaint it is significant to note that the plaintiff himself has mentioned the land measuring 11 kanals comprising of khata No. 58 and khasra No. 49 in respect of which the decree was passed by my learned predecessor. In view of the description of the land given by the applicant himself in para No. 2 of the plaint, it cannot be said that there is any mistake in the Judgment or decree-sheet'.

3. I have perused the plaint and I find that in the head-note it is clearly mentioned: 'Suit for possession by pre-emption of land entered in Khata No. 38 min, khasra Nos. 8, 11, 21, 23, 36, 37, 49, 22 land measuring 38 Kanals 10 marlas'. In para 1 of the plaint also it is stated as. 'That the land entered in Khata No. 38 min, Khasra Nos. 8, 11, 21, 23, 36, 37, 49, 22 land measuring 38 kanals 10 marlas'. However, in para 2 of the plaint there is no doubt that it is written as 'Khata No. 58.' But this appears to be purely a clerical or a typographical mistake when in the head-note of the plaint as also in para No. 1 of the same it has specifically been mentioned as 'Khata No. 38 mm'. In the copy of the khasra girdwari which has been exhibited as P. 2 it is clearly written as Khewat No. 38. The copy of Jamabandi. Exhibit P. 3 also indicates that it is Khata Khatauni No. 38 min. The sale deed, Exhibit D. 1, also shows that it is Khata No. 38 min, which was sold. Therefore, this documentary evidence leaves no manner of doubt to hold that in fact it was Khata No. 38 min in which the land was comprised and which was the subject matter of the suit for preemption and it appears that by typographical mistake in para 2 of the plaint it has been mentioned as 58. Therefore, in these circumstances, I think the court had to allow this amendment which was purely of a clerical nature which had appeared in the pleading.

4. According to Mt. Anupa Kuer v. Yogendra Jha (AIR 1954 Pat 108) where the plaint omitted to state from which direction the plaintiff claimed recovery of possession over the suit plots, it was held that the decree, which, having been drawn in accordance with plaint, also omitted to give such direction should be amended since there was no ambiguity as to the subject-matter of the suit but there was only a mistake as to the description of the property. Similarly in Shahzad Khan v. Pt. Sheo Kumar (AIR 1957 All 133) also it has been held that a 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. In such cases it is not necessary to amend the plaint itself. Similarly in N. Subramonia Iyer v. Joseph George (AIR 1959 Ker 386) also it had been observed that the question how far a court can under Section 152 amend clerical error in a decree although the error may have first occurred in the parties' pleadings and may have been merely copied from them in the decree has been the subject of some diversity of judicial opinion. The language of Section 152 does not exclude such mistake and there is no reason for restricting the scope of the Section to correction of errors made by the court itself. Indeed mistakes having their origin anterior to the suit and repeated in the decree have themselves been corrected by exercise of jurisdiction under this section.

5. Therefore, what follows is that the Court has to do a substantial justice and for that the Court is competent to correct any mistake, clerical or arithmetical, which 'has crept in the decree or in the plaint or the written statement itself, so as to give effect to the decree. In the instant case the sale was of Khata No. 38 min and the head-note of the plaint as also para 1 of the plaint also correctly mention the same although in para 2 a typographical mistake has occurred. The learned Senior Sub Judge therefore was wrong in rejecting the application of the plaintiff-decree-holder merely on the ground that he had himself so mentioned in para 2 foregetting that not only in the head-note rather in para 1 of the plaint also he had given the correct description and the documentary evidence also speaks to the same effect. The sale deed which was the subject-matter of the suit also mentions Khata No. 38. Therefore, in order to do substantial justice and to give effect to the decree it was the duty of the Senior Sub Judge to have corrected this typographical error in the decree.

6. In these circumstances, I, therefore allow this petition and reverse the order of the learned Senior Sub Judge and order that amendment shall accordingly be made in the decree so as to insert and read Khata No. 38 min for 58 min. However, I pass no orders as to costs.


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