Errors or omissions by the parties could be corrected by the court as per Section 152 of CPC, and the court emphasized that the impugned order was unsustainable in law.

JUDGMENT :

TUSHAR RAO GEDELA, J.

1. The petitioner challenges the order dated 22.02.2023. in Misc DJ 76/2022 in CS DJ No. 278/2020 titled ‘Jasmin Singh v. Jasbir Singh’ whereby an application under Section 151 CPC, 1908 seeking amendment to the final judgment and consent decree dated 16.10.2020. was sought, was dismissed on the ground that the rectification of the consent order cannot be done, unless the mistake is apparent on the face of the record.

2. Mr. Yadav, learned senior counsel appearing for the petitioner submits that parties were ad idem on the aforesaid issue and that is how settlement agreement has been arrived at.

3. In fact, Mr. Yadav, learned counsel draws attention to the settlement agreement to submit that the consent of both the parties were obtained in respect of the dispute between the parties regarding execution of sale deed etc. in favour of the petitioner i.e. Jasmin Singh by the respondent/defendant. Learned counsel submits that it was only an omission to not have included the sale consideration of Rs. 42,000/- which were already paid by the father of the petitioner to the father of the respondent.

4. Learned counsel draws attention of this Court to page 23 containing the plaint of the petitioner, particularly to para 7 and 8 to submit that the plaintiff has categorically mentioned the said sum, as sale consideration, of the subject property. Learned counsel also refers to para 7 of the plaint of the written statement whereby the respondents have categorically admitted the said issue.

5. Learned counsel draws attention to the application under Order XXIII Rule 3 r/w Section 151 CPC, 1908 filed on behalf of the parties before the learned Trial Court to submit that the entire facts regarding the consent of the parties were recorded, barring this particular issue. On that basis, Mr. Yadav, learned senior counsel submits that the non-mentioning of the said amount as sale consideration was an error or an omission which falls within the ambit of the provision of under Section 152 of CPC, 1908.

6. Learned senior counsel that the reliance of the Trial Court on the judgment of Supreme Court in Ajanta LLP v. Casio Keisanki Kabushiki Kaisha D/B/A Casio Computer Company Limited, (2022) 5 SCC 449 and applying the same to the facts of this case was not appropriate.

7. Learned counsel submits that in view of the aforesaid, the impugned order ought to be set aside and the judgment and consent decree be rectified to include the sum of Rs. 42,000/- as having been paid and received by late father of the respondent to complete the sequence of events insofar as the execution of the consent decree is concerned.

8. Learned counsel appearing for the respondent submits that they have no objection whatsoever to such rectification and the same was also consented to by the respondent before the learned Trial Court.

9. This Court has considered the submissions of learned senior counsel appearing on behalf of the petitioner as well as learned counsel appearing for the respondent and has perused the entire record.

10. So far as the judgment of Supreme Court in Ajanta LLP (Supra) is concerned, there is no quarrel to the facts that the rectification or modification of judgment and decree is impermissible unless it is vitiated by fraud or a mis representation or created for a obvious mistake.

11. So far as the facts are concerned obtaining in the judgment of the of Ajanta LLP (Supra) is concerned, it appears from the reading of the fact that there were adversorial and contrasting assertions insofar as the rectification, judgment and decree is concerned. However, in the present case, the submission of the parties as well as the pleadings on record, that is, the plaint and the written statement, it is apparent that the parties are ad idem on the issues on which the modification was sought for and therefore the ratio as laid down by the Supreme Court would not be, in the humble view of this Court, applicable to the facts of the present case.

12. Havin