Civil Revision No. 5737 of 2004 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 5737 of 2004
Date of decision: 19.05.2009.
Gopal Dass
Petitioner
Versus
Pawan Kumar and others ...Respondents
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. M.L.Sarin,Senior Advocate with
Ms. Alka Sarin, Advocate for the petitioner
Mr. B.R.Gupta, Advocate for the respondents
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S.D.ANAND, J.
The controversy between the parties is as under:-
The parties were litigating in a suit for permanent
injunction pending in the Court of learned Civil Judge (Senior
Division), Jagadhri. They announced to the Court that they had
come to terms. A documented compromise (Annexure P-1) was
placed on record. The learned Trial Court passed a decree on the
basis thereof. Thereafter, the plaintiff therein (respondent no.1
before this Court) filed a plea under Section 152 read with Section
151 C.P.C. for correction of a particular rect. number indicated in the
impugned compromise. The averment was that the aforementioned
rect. number had been inadvertently mentioned as 27/10 in place of
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correct rect. number 28/10. Infact, the averment proceeded that
there is no rect. number corresponding to the recorded numbers.
The plea for rectification was contested by the defendant-
petitioner, however, the learned Trial Court allowed the plea vide
impugned order dated 21.10.2004. In the course of the impugned
order, the learned Trial Court held that “both the suits were contested
and the main grudge of the plaintiff in both the suits was to reach the
Khasra No.7 of Rect. No.27 which was the land of the plaintiff and
there was no rasta to that land. Thereafter, compromise Ex.CX was
reached between the parties which was signed by both the parties,
dated 23.01.1999 and the same was produced in the Court. ………….
From the perusal of the compromise Ex.CX as well as the intention of
the parties, that the plaintiff was given a rasta alongwith the southern
dole of both the khasra numbers, so that the plaintiff should have an
ingress/outgress to his khasra no.7, 8 of Rect. No.27 from the rasta
left the time of consolidation, as is clear from the copy of Aks-sajra
placed on file. This clearly envisages if a rasta is traced from the
southern dole of khasra no.6 of Rect. No.27 to reach the khasra
Nos.7 & 8 of Rect. No. there is no khasra No.10 of Rect. No.27 in
that line, rather khasra no.10 of rect. No.28 falls on the Eastern side
of khasra no.6 of Rect. No.27 which has been mentioned in the
compromise Ex.CX but there is no khasra no.10 of Rect. No.27 even
existed in the revenue estate of village Rapri, Tehsil Jagadhri, District
Yamuna Nagar. ………………….the mistake occurred in the
compromise Ex.CX is only clerical/typographical one, which can be
well corrected by invoking the provisions of Section 151/152 CPC.”
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Mr. M.L.Sarin, learned Senior counsel appearing on
behalf of the petitioner, argued that the approach of the learned Trial
Court is invalid particularly when it was not even the plea on behalf
of the plaintiff-respondent that there was any typographical or
clerical error (in noticing the averred rect. number) on the part of the
Court.
In support of the averment that any error on the part of
the parties could not form the basis of exercise of jurisdiction under
Section 152/151 C.P.C., learned counsel relied upon Jayalakshmi
Coelho Vs. Oswald Joseph Coelho 2001(4) SCC 181.
The learned counsel, appearing on behalf of the
respondents argued that the impugned compromise/agreement was
void (in terms of the provisions of Section 20 of the India Contract
Act) on the face of it as both the parties were under mistake “as to
matter of fact essential to the agreement”.
There can be no difference of opinion about the fact that
the correction of a clerical or typographical error is authorised in
terms of the provisions of Section 152 C.P.C. The only condition
precedent in that behalf is that the error must have occurred on the
part of the Court. If an error occurs on the part of a party, resort
cannot be had to the provisions of Section 152 C.P.C. Likewise, if
there is a case where a party makes an averment that the contract is
void in terms of Section 20 of the Indian Contract Act, 1872, the
parties shall have to obtain a declaration from the Civil Court about
the invalidation thereof. In that eventuality too, a resort to the
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provisions of Section 152 C.P.C. shall, in any case, not be called for.
By the very nature of things, a compromise is a
consensual act as between the parties to a cause. The parties
compromising the matter announce the factum thereof to the Court
and would make a plea for disposal of the cause on the basis
thereof. In the allowance of the compromise plea, the Court would
be merely putting its seal upon the terms and conditions of the
compromise already arrived at between the parties. The only job of
the Court would be to validate it after satisfying itself that the
compromise was not in violation of the public policy etc. If any party
to the compromise has to wriggle out of the compromise, for one
reason or the other, it has to go for a civil suit to obtain invalidation
thereof. On a plea of the present category being filed, the learned
Trial Court would not be justified in proceeding to adjudicate upon the
validity or otherwise of an averment made by a party with regard to
an alleged mistake of fact having occurred in the impugned
compromise. The exercise of that jurisdiction would the prerogative
of the Civil Court wherein the validity of the compromise itself is
challenged.
In the light of the foregoing discussion, the petition shall
stand allowed. The impugned order dated 21.10.2004 shall stand set
aside. If the plaintiff-respondent has a grievance, he may have the
recourse to the proper remedy available to him under the law.
May 19, 2009 (S.D.Anand)
Pka Judge
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