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Judgment
[1] Heard Mr. D. K. Biswas, learned counsel appearing for the petitioner whereas none appears for the respondents despite due notice from this court.
[2] This is a petition under Article 227 of the Constitution of India questioning the order dated 26.06.2019 delivered in T.S.(P) 61 of 2014 by the Civil Judge, Sr. Division, Court No.4, West Tripura, Agartala.
[3] The petitioner herein (the plaintiff No.1 in the suit) after obtaining the certified copy of his deposition found that in the cross-examination his response as regards the sale deed has been incorrectly recorded. According to the petitioner, the referred sale deed is a sham transaction. However, in the examination-in-chief, he has categorically asserted that the said sale deed is the product of a sham transaction. But on 16.12.2016, when he was cross-examined by the defendants, the trial court had recorded his responses in the following manner:
"It is not fact that the sale deed is a sham and the said fact not is true."
"It is not a fact that the said sale deed is not a valid sale deed".
[4] Having discovered that incorrect recording, the petitioner filed the application for correction to the trial court supported by an affidavit dated 10.10.2018 and urging the court for correcting the statement op.cit in respect of the sale deed of incorrect recording. Again on 06.04.2019, similar prayer was advanced to correct the said recording in terms of the prayer made in the affidavit filed on 10.010.2018. By impugned order, the trial court has rejected this prayer having observed as follows:
"There are two aspects to the present petition i.e. the factual and the legal.
Regarding the factual aspect I am of the unhesitating opinion that since the deposition of PW-1 was recorded by my Ld. Predecessor, I am not in a position to opine that whether the two lines in the Cross-examination of PW-1 extracted above was a typing/printing mistake or it was recorded, typed and printed correctly.
Moreover, the deposition sheet was duly signed by the witness and there is also signature by the Presiding Officer beneath the endorsement that the deposition was read over and explained to the witness.
The recording of deposition of witness is a judicial act and Section 114(e) of Evidence Act raises a presumption that judicial acts are regularly performed.
Moreover, the deposition of PW-1 was recorded on 16.12.2016 and the Plaintiff side raised objection regarding the correctness of the deposition by filing an affidavit only on 12.10.2018 i.e. after almost 2 years.
Regarding the legal aspect I am of the opinion that perusal of the provisions of Civil Procedure Code indicates that Section 152 & 153 of CPC relates to amendment or correction.
Section 152 of CPC permits amendment of Judgment, Decrees or orders in case of clerical or arithmetical mistake and reads as follows:
"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".
Hence in my opinion in this case Section 152 of CPC cannot be pressed into service as this Section relates to clerical or arithmetical mistakes in Judgments, decrees or orders.
Section 153 of CPC deals with general power to amend and reads as follows:
"The court may at any time, and on such terms as to costs or otherwise at it may think fit, amend any defect or error in any proceeding in a suit and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding".
This section of law can be pressed into service in case of correction of deposition sheet in case it is found erroneous but in the present case since I am not certain whether the lines extracted above in cross-examination of PW-1 are erroneously recorded, typed and printed, I am not inclined to exercise the power vested in me under the said provision".
[5] There is no difficulty is accepting the reasons provided by the trial court except that as he did not record the cross-examination, he cannot correct the record. Law does not envisage any situation that the court should act on personal knowledge. It is on the basis of the records, the court has to take appropriate decision. From the pleading and the examination-in-chief, it has appeared that the consistent stand of the plaintiff No.1 was that the said transaction was sham.
[6] Moreover, the line which reads as- "It is not fact that the sale deed is a sham and the said fact not is true." does not make any sense at all. It appears from the assertion made by PW-1, that the statement [emphasized in bold letter above] in the cross-examination, as sought to be corrected by the petitioner, be corrected to avoid mischief from a mistake. The delay as noticed by the trail court is material but cannot create an absolute bar in exercise of discretion having due regard to the records of the proceeding. Moreover, the suggestion put to PW-1, responded in the negative. That aspect stands to support the contention of the petitioner.
[7] Having perused the record, this court is of the view that in lieu of "It is not fact that the sale deed is a sham and the said fact not is true." The following shall be inserted in that place in exercise of the power under Section 143 of the CPC in the following manner:
"It is not fact that the sale deed is not a sham".
In terms of the above, the trial court is directed to make the amendment in the cross-examination of PW-1.
With this observation, the petition stands allowed.
There shall no further order as to costs.
A copy of this order be sent to the trial court forthwith.