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2017 Supreme(Del) 367
IN THE HIGH COURT OF DELHI AT NEW DELHI
JAYANT NATH, J.
SANJAY GUPTA – Petitioner
Versus
ARUN GUPTA – Respondent
CM(M) 1191 of 2016
Decided On : 02-02-2017
For the Petitioner: Mr. I.P. Singh
For the Respondents: Mr. Suhail Dutt, with Mr. K.K. Sharma
Under section 152 CPC, clerical mistakes in judgments can be corrected at any time, and where the executant of a gift deed seeks to avoid the deed, he must sue for cancellation of the deed.
Headnote:
Rectification - Gift Deed - Section 152 CPC - 152
Fact of the Case:
The respondent filed a suit to declare a gift deed null and void. The trial court decreed the suit but failed to consider an amendment allowing the cancellation of the deed. The respondent sought rectification of the decree under section 152 CPC, which was allowed by the trial court.
Finding of the Court:
The court found that the trial court's failure to consider the amended plaint was an oversight, and the rectification of the decree was justified under section 152 CPC. The petitioner's reliance on the doctrine of merger was dismissed, and the petition was deemed without merits and dismissed.
Issues: The main issue was whether the trial court's failure to consider the amended plaint justified the rectification of the decree under section 152 CPC, and whether the doctrine of merger applied.
Ratio Decidendi: The court held that under section 152 CPC, clerical mistakes in judgments can be corrected at any time. It also emphasized the legal principle that where the executant of a gift deed seeks to avoid the deed, he must sue for cancellation of the deed.
Final Decision: The petition was dismissed, and all pending applications were disposed of accordingly.
JAYANT NATH, J.
CAVEAT No. 240240/2016
Since the learned counsel for the respondent has entered appearance, the caveat stands discharged.
CM No.43306/2016 (exemption)
Allowed subject to all just exceptions.
CM(M) 1191/2016
1. By the present petition under Article 227 of the Constitution of India the petitioner seeks to impugn the order dated 18.7.2016 by which an application filed by the respondent/plaintiff under section 152 CPC seeking correction in a judgment and decree dated 13.8.2012 passed under Order 12 Rule 6 CPC was allowed. As a consequence of the correction, the Gift Deed dated 1.5.2009 which as per the original order was declared as null and void was also directed to stand cancelled.
2. The respondent had filed the suit for declaring the gift deed in question dated 1.5.2009 as null and void. The parties are real brothers. Thereafter the respondent moved an application under Order 6 Rule 17 CPC for adding the prayer for cancellation of the Gift Deed. The application was allowed.
3. On 13.8.2012 the suit was decreed under Order 12 Rule 6 CPC. However, the trial court while decreeing the suit took into account the unamended plaint ignoring the subsequent amendment which was allowed under Order 6 Rule 17CPC.
4. Against the decree dated 13.8.2012 the petitioner filed an RFA before this court which was dismissed on 24.5.2013. Against the judgment of this court dated 24.5.2013 a Special Leave Petition was filed in the Supreme Court which was also dismissed on 19.9.2014.
5. The case of the respondent is that immediately after the decree was passed on 13.8.2012, he has on 28.8.2012 sought rectification of the decree under section 152 CPC. The trial court has allowed the same by the impugned order dated 18.7.2016.
6. A perusal of the decree dated 13.8.2012 which was passed on an application under Order 12 Rule 6 CPC would show that the trial court has noted that the respondent has filed the suit for declaration that the gift deed dated 1.5.2009 executed in favour of the petitioner be declared null and void and further a decree of permanent injunction be passed against the petitioner not to dispossess the respondent from the suit property. It is manifest from the said observation in para 3 of the said order that the amended plaint has not been taken into account and what has been taken into account is only the un-amended plaint. In the amended plaint the petitioner had also sought cancellation of the deed.
7. Further the petitioner has expeditiously within expiry of about 18 days from the passing of the decree moved an application for rectification. It is the respondent who has gone to the High Court and Supreme Court challenging the decree.
8. Learned counsel appearing for the petitioner has, however, submitted that the decree passed by the trial court got merged with the order of the higher court hence the trial court lost its jurisdiction to carry out any rectifications. He has relied upon the judgment of the Supreme Court in Gojer Brothers Private Limited vs. Ratan Lal Singh, (1974) 2 SCC 453 to press the issue of doctrine of merger.
9. Section 152 CPC reads as follows:-
“152. Amendment of judgments, decrees or orders-Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
10. It is clear that any clerical mistake in the judgment from any accidental slip or omission may be corrected by the court at any time.
11. Even otherwise, the Gift Deed was executed by the respondent also. Where the executant seeks for declaration of the documents to be null and void, he is obliged to seek cancellation of the deed. Reference in this context may be had to the judgment of the Supreme Court in Suhrid Singh @ Sardool Singh v. Randhir Singh & Anr., 2010 (12) SCC 112, where the court held as follows:
“7. Where the executant of a deed wants it to be annulled, he has
