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1975 Supreme(HP) 43
High Court Of Himachal Pradesh
C.R.THAKUR
RANIA - Appellant
Versus
KAMLA DEVI - Respondent
Civil Revn. No. 59 of 1974
Decided On : 12/19/1975
A court has the power to amend a decree under Section 152 of the Code of Civil Procedure to correct a clerical or typographical mistake, even if the mistake originated in the parties' pleadings.
Headnote:
CIVIL PROCEDURE CODE, 1908 - SECTION 151, 152 - CORRECTION OF DECREE - CLERICAL MISTAKE - AMENDMENT OF DECREE - POWER OF COURT - SUBSTANTIAL JUSTICE.
Fact of the Case:
The petitioner, Rania, filed a suit for possession by pre-emption of land. The decree was passed in his favor, but there was a clerical mistake in the decree regarding the Khata number of the land. The petitioner filed an application under Sections 151 and 152 of the Code of Civil Procedure for correction of the decree, but it was dismissed by the Senior Sub Judge.
Finding of the Court:
The court found that the mistake in the decree was purely clerical and typographical. The documentary evidence, including the plaint, sale deed, and Jamabandi, clearly indicated that the correct Khata number was 38 min, not 58 min. The court also relied on several precedents where courts had amended clerical errors in decrees under Section 152 of the Code of Civil Procedure.
Issues: Whether the court had the power to amend the decree to correct a clerical mistake?
Ratio Decidendi: The court held that it had the power to amend the decree under Section 152 of the Code of Civil Procedure. The court reasoned that the mistake was purely clerical and typographical, and that the documentary evidence clearly indicated the correct Khata number. The court also relied on precedents where courts had amended clerical errors in decrees under Section 152.
Final Decision: The court allowed the petition and reversed the order of the Senior Sub Judge. The court ordered that the decree be amended to insert and read Khata No. 38 min for 58 min.
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 pre-emption 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 min". 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 co
