Madan Lal vs Victor Denial

N.P. Gupta, J.—By the impugned order learned trial court has allowed the application of the defendant purportedly u/s 151, 152 and 153 C.P.C. and thereby clarified/ modified the judgment and decree dt. 11.1-1999 by substituting the words in place of the expression used in the decree being.

The contention raised by the Learned Counsel for the petitioner is that even on the facts alleged in the application, the matter or prayer was clearly beyond the scope of Section 152 C.P.C and thus the order is wholly without jurisdiction. It is contended that by passing the impugned order the learned trial court has practically extended the scope of the decree which it was not entitled to.

As against this the Learned Counsel for the non-petitioner defendant supported the impugned order and contended that it was in order to make the decree meaningful and to represent the intention of the parties in getting the decree, that the impugned order has been made which is fully within jurisdiction of the court and thus no interference is required to be made in the revisional jurisdiction.

I have heard Learned Counsel for the parties and have considered the rival contentions.

In order to appreciate the controversy a brief resume of the facts is necessary.

The plaintiff petitioner had filed the suit on 8.1.1999 for perpetual injunction with the ariegation to be tenant in certain part of house of the defendant, and then alleged that the landlord defendant forcibly wanted to throw away the belongings of the plaintiff with the help of anti social elements, so much so that a false criminal case was also got registered. It was allegedly the plaintiff that the defendant actually wants to sell the property, and in order to deliver possession to the prospective purchaser wants to forcibly dispossess him. Inter alia with these allegations it was prayed that the defendant should be restrained from interfering with the tenanted premises. Though consequential relief''s were of course claimed.

A long with the suit the plaintiff also filed an application for temporary injunction. The learned trial court issued notices to the defendant who appeared on 11.1.1999 and at the time the matter was compromised between the parties, and a consent decree was obtained restraining the defendant from dispossessing the plaintiff from tenanted premises in his possession without due process of law and from creating any obstruction in its use and occupation by the defendant.

After passing of this decree, on 8.2.1999. the defendant filed the aforesaid application pleading in detail the controversy about the tenanted premises i.e. as to what were the tenanted premises according to the plaintiff'', and what were the tenanted premises according to defendant, and sought to contend that in view of the pleadings taken in the written statement, the judgment and decree dt. 11.1.1999 is required to specify that details of the tenanted premises, and to this effect the decree the modified. This application was opposed by the plaintiff by filing a detailed reply on 24.4.1999 to the effect that the decree clearly comprehended, and that before the said compromise was recorded the arguments were already heard on the temporary injunction application, the compromise was duly recorded on the order sheet and was duly signed by both the parties. It was contended that taken from any stand point the application is not maintainable.

The learned trial court, vide impugned order, as stated above, allowed the application. A look at the impugned order shows that, in para S of the order the learned trial court has proceeded to pose a question which practically has the effect of reopening the entire controversy involved in the suit, inasmuch as according to the learned trial court the question is as to whether the decree comprehends two rooms and kitchen as per plaint, or one room and kitchen of tenancy and other room forcibly taken possession of by the defendant? And, thereafter by purporting to refer to the pleading and also purporting to consider the effect of non-traverse of the pleadings of the defendant taken in the reply to the temporary injunction application by way of filing rejoinder, proceeded to hold that the expression used in decree means that it refers to only those premises which are actually, in the tenancy (one room and kitchen) and that the other room was not in the tenancy at the time of passing of the decree, and therefore, it cannot be included in the decree. The learned trial court purported to refer to a couple of judgments to seek support for passing the impugned order.

However, in my opinion, the learned court below was in jurisdictional error in passing the impugned order, i may at once observe that Section'' 152 C.P.C., takes within its scope only clerical and arithmetical errors, obviously, if such errors are on the part of the Court. It does not comprehend the correction of any error on the part of any litigating parties. In the present case a look at the application does show that no error on the part of the court, much less any clerical or arithmetical error, has even been alleged, rather the defendant seeks to invoke Section 152 for the purpose of explaining as to what was the intention of that parties in arriving at the compromise, and seeks to bring decree in line with intention.- Suffice it to say that the request is clearly beyond the scope of Section 152. Regarding Section 151 and 153, these provisions are not available for modification of the decree in the circumstances of the present case.

I may further observe that present is a case of a decree passed on the basis of compromises between the parties, and therefore, whatever way the party desired to express and bind themselves, the court was simply supposed to see that the compromise is a lawful agreement. Consequently if, while arriving at a compromise or while recording compromise, parties remain under some misunderstanding, or confusion or ever error, that cannot be sought to be corrected u/s 151 or Section 152 or Section 153 C.P.C May be that by this compromise the defendant may be feeling to be a loser, or he may have comprehended some relief to himself, which is not spelt out from the compromise, even then the learned trial court could not arrogate to itself any jurisdiction to modify the decree as done by the impugned order.

Consequently, the revision petition is allowed. The impugned order is set aside and the non-petitioner''s application dt. 8.2.1999 filed u/s 151, 152 and 153 C.P.C. is dismissed. Parties are left to bear their own costs.