Amma Dar vs Aziz Dar

Mian Jalal-Ud-Din, J.—The Civil revision is directed against the order of the learned Munsiff, Tral, dated 17-6-1976, allowing the

application of the respondent, herein, under Sections 152/151 of the Code of the Civil Procedure.

It appears that in a suit for declaration brought by the plaintiff-respondent against the appellant in respect of the suit land, the parties entered into

compromise. A decree was passed on the basis of compromise. When the judgment and the decree were prepared a mistake was noticed therein

by the respondent as regards a portion of land wrongly shown in Survey No. 70. Both in the plaint and in the compromise there was mis-

description of Khewat No. 70 as survey No. 70 whereas in fact the actual survey No. was 465 in Khewat No. 70. The plaintiff decree holder

thereupon sought correction of this mistake both in the judgment and the decree. This application was resisted by the appellant on several grounds,

inter alia that the application under Sections 152/151, C.P.C. did not lie in as much as the respondent did not seek the correction of any clerical

mistake but wanted amendment of a decree in respect of a portion of the land purported to have been recorded in Survery No. 70 that did not

figure at all in the suit. The learned Munsiff on consideration of the matter allowed the application and ordered the rectification of the mistake.

Aggrieved by this order, the defendant has come up in revision before this Court.

A preliminary objection has been raised by Mr. Trisal, appearing for the respondent that the revision is not competent. The argument is that the

order rectifying the mistake has merged in the amended decree and, therefore, the remedy available to the petitioner is to file an appeal against the

amended decree and not come in revision before this Court. In support of this view reliance has been placed on Katikara Simhagiri Dora alias

Latchanna Dora and Others Vs. Sri Vyricherla Chandramani Pattamahadevi Zemindarini of Chemudu, .

This preliminary objection was met by Mr. K.N. Raina learned Counsel for the petitioner by submitting that the order passed by the learned

Munsiff being an order under Sections 152/151, C.P.C. it is not appealable. He has not come in revision against the amended decree but against

the order allowing the application under Sections 152/151, C.P.C. which order is revisable and not appealable.

The proposition debated before me, it seems, has been the subject-matter of some of the decisions of the Indian High Courts. The Madras High

Court in Katikara Simhagiri Dora alias Latchanna Dora and Others Vs. Sri Vyricherla Chandramani Pattamahadevi Zemindarini of Chemudu, and

also at p. 578, has, no doubt, taken the view that when an application u/s 152, C.P.C. is allowed and the amended decree is drawn up, then an

appeal should be filed against the amended decree and the revision is not competent. In the words of Vishwanatha Sastri J. an order amending a

decree so as to bring it into conformity with the judgment is not revisable u/s 115 of the Code as an alternative remedy in the form of an appeal

against the amended decree is available. Again Horwill J. in Katikara Simhagiri Dora alias Latchanna Dora and Others Vs. Sri Vyricherla

Chandramani Pattamahadevi Zemindarini of Chemudu, , observed that where the judgment is amended to bring it into conformity with its earlier

portion and decree is also amended and brought into conformity with the amended judgment, no revision lies against the amending order as an

alternative remedy of appeal against the amended decree is available. The revision petition also cannot be converted into an appeal and that the

remedy of the aggrieved party is by way of filing a revision petition and not an appeal. As against this the Allahabad High Court in Rugh Nath Dass

v. Raj Kumar ILR (1885) All 276, has opined that the revision is competent. In that case Mohmood J. held that the amending order would not

amount to decree. He expressed the opinion that a revision petition was competent. The matter again came up for consideration before a Full

Bench of the same High Court in ILR (1885) All 876, in which the view of Mohamood J. was accepted. The same view has, however, been held

by the High Courts of Calcutta, Allahabad and Bombay, that revision does lie. The balance of authorities is, therefore in favour of the proposition

that a revision is competent against an order made u/s 152, C.P.C. which seeks to bring the decree in conformity with the judgment.

In the instant case, what the court below has done is that it has rectified the mistake which had crept in the plaint, the compromise deed, and the

decree. This power the court has exercised not only u/s 152, C.P.C. but also u/s 151 of the Code under its inherent powers. In such

circumstances, it is the revision alone that is competent. The petitioner is not assailing the amended decree and judgment but the order itself passed

under Sections 152/151, C.P.C. This should make the position clear. The preliminary objection is, therefore, without merit and is hereby

overruled.

The second question posed is whether the court below was competent to rectify the mistake in the judgment and the decree which had not crept

in because of the mistake in the compromise deed but because of the mistake in the plaint itself. The view enunciated by the learned Counsel for

the petitioner is that the court could not travel beyond the judgment and decree and even beyond the compromise deed and could not rectify the

mistake in the plaint in so far as the misdescription of the survey number was concerned.

In my opinion, this argument though attractive is not convincing. The court has inherent power to correct clerical mistake, even in pleadings for

the purpose of promoting ends of justice, the court has done in exercise of its inherent powers. Fortunately the point is no longer res integra. This

question came up for consideration before the Patna and Allahabad High Courts and also before this Court in AIR 1960 J&K 37 and 1974 J&K

LR 359. The ratio of the authorities is that the object of Section 152 of the Code is to further the ends of justice where it might otherwise get

defeated on account of any inadvertent error or omission in the judgment, decree, or order. This section does not limit the origin of such errors or

omissions in any manner nor also is there any reason to restrict its scope. The Section is applicable to the errors and omissions made in the

pleadings of the parties which are copied in the judgment and decree or the order. 1974 J & K LR 359 (supra) was a case where the plaintiff had

inadvertently mentioned a wrong survey number in the plaint. The error in the plaint was carried over in the decree which was ultimately passed in

the suit. This mistake was not detected by the parties or by the court till the decree was put into execution. During the course of the execution

proceedings, this mistake was noticed. Thereupon the decree-holder sought the correction of the survey number by filing an application u/s 152,

C.P.C. which was allowed by the trial Court. A revision petition was filed in the High Court against the order of the trial Judge, which was

dismissed by this Court for reasons mentioned above. The same view has also been expressed in Shahzad Khan Vs. Pt. Sheo Kumar, and AIR

1954 Pat 108.

Having noticed that the court below was competent to rectify the mistake although it had crept in in the pleadings of the parties, the next

question that falls for consideration Is whether there was a case made out by the plaintiff-respondent in filing the application u/s 152, C.P.C. For

this it is pertinent to refer to the plaint as also the compromise deed. The suit of the plaintiff-respondent covers three distinct pieces of land viz:

(a) 1/2 of 9 Marlas recorded in Survey No. 217.

(b) 1/4th of the land recorded in Survey No. 468.

(c) 1/4th of 1 kanal and 9 marlas recorded (inadvertently) in Survey No. 70.

A compromise was later on drawn up which also makes a mention of these very survey numbers and the lands shown therein. A decree was

drawn up in accordance with the terms of the compromise deed. Now so far as the first two pieces of lands are concerned, i.e. land recorded in

Survey Nos. 217 and 468, there is no dispute with regard to their correct numbers. Both the compromise and the judgment as also the decree

drawn up show the correct position with regard to the aforesaid Survey numbers. The only dispute is with regard to an area of 1/4th of 1 Kanal

and 9 Marias shown to have been recorded inadvertently in Survey No. 70.

Learned Counsel for the respondent has submitted that the scribe who drafted the plaint and also the compromise deed made a mistake in

recording survey number as 70 whereas it is khewat No. 70. The survey No. of 1 Kanal and 9 marlas is 564 as recorded in Khewat No. 70. So it

was here where the mistake had crept in. The respondent, therefore, sought the correction of the survey number. This is all what he wanted the

court to do. The contention of the appellant is that this is not possible because no correction could be made without inquiry. More over, the

property is joint and is not delineated, therefore, no correction can be ordered. He has further contended that Survey No. 465 has got an area of 2

Kanals and 1 Marlas i.e. 1 Kanal and 9 Marlas as Banjari-Qadeem and 12 Marlas Gair Mumkin Makan. It is submitted that in this survey number

stands the house of the appellant on 12 Marlas of land and if the mistake is corrected, then it would jeopardise the interests of the appellant as he

may be asked even to vacate the house. But these contentions, in my opinion, have got no force because the suit of the appellant respondent is

only with regard to 1/4th of 1 kanal and' 9 marlas and is not with regard to 12 marlas of land on which is situate the house of the appellant.

Therefore, the respondent should feel no apprehension on that score. Even if the land measuring 1 kanal and 9 marlas is held jointly by the several

co-owners that would also make no difference because the decree-holder can seek partition of the land and can get 1/4th of 1 kanal and 9 marlas.

Again, I am not convinced that the compromise or the decree-that has followed the compromise is hit by the provisions of the Agrarian

Reforms Act. At any rate, this question does not arise in these proceedings before me.

For these reasons, I would, therefore, dismiss this petition with the observations that the rights of the petitioner in 12 Marlas of land recorded

in Survey No. 465 will remain intact, unaffected by the impugned order.

The correction made is without jeopardising his interests. In the circumstances of the case, there will be no order as to costs.