JAGBIR SINGH Vs. NIRMAL SINGH

JUDGEMENT

(1.) THIS revision petition arises out of orders dated 12.3.2007 (Annexure P-7) passed by the Civil Judge (Sr.Divn.) Jalandhar and dated 3.8.2009 (Annexure P-8) passed by the Additional District Judge, Jalandhar dismissing the application filed under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short 'CPC') as not maintainable and also on merits.

(2.) THE suit land was originally owned by five brothers, namely, Ajit Singh alias Jit Singh (since deceased), Sohan Singh, Nirmal Singh, Mohan Singh and Pritam Singh in equal shares. Ajit Singh was the owner of 1/5th share, who died on 22.4.1987. Defendants Jagbir Singh and Amritpal Singh sons of Sukhdev Singh claimed to have succeeded to the property of Ajit Singh on the basis of a Will dated 9.1.1987 which was challenged by Nirmal Singh and Sohan Singh sons of Bishan Singh (brother of Ajit Singh) on the basis of another Will dated 20.4.1987, alleged to have been propounded by Ajit Singh (deceased), bequeathing his 1/3rd share out of his 1/5th share in favour of Sohan Singh and remaining 2/3rd share in favour of Nirmal Singh. During the pendency of the suit, a compromise (Ex.CX) was arrived at between the parties on 30.8.1995, according to which suit of the plaintiffs for declaration that plaintiff Nirmal Singh is owner in joint possession of 1/5th share and 8 Kanals of land and Sohan Singh is the joint owner in possession of 1/5th share and 5 kanals of land out of the suit land inherited by them from Ajit Singh out of land measuring 113 Kanals situated in village Laroi was decreed and the remaining relief was dismissed. The compromise was ordered to be made part of the decree. After the aforesaid judgment and decree dated 30.8.1995 based upon the compromise, the plaintiffs filed an application under Section 152 of CPC alleging therein that as per compromise land measuring 13 kanals fell to the share of Nirmal Singh and Sohan Singh was of two villages, namely, Jallowal and Laroi but inadvertently only village Laroi has been mentioned in the judgment and decree whereas according to applicants/plaintiffs they were entitled to 13 Kanals of land of two villages. The said application dated 3.9.1998 was allowed by the Additional Civil Judge (Sr.Divn.) Jalandhar vide his order dated 27.4.1999 observing as under :

(3.) COUNSEL for the petitioners has argued that Section 152 CPC can be invoked for the limited purpose of clerical or arithmetical error in the judgment but it cannot be invoked to add substantial claim which was not granted in the decree. He, however, failed to challenge the orders of both the Courts below which have been passed on the ground of non maintainability of the application filed under Order 9 Rule 13 CPC because Order 9 Rule 13 CPC talks of an ex parte decree and not of an order by which an amendment has been brought in the decree. In order to appreciate the argument raised by the learned counsel for the petitioners, Section 152 CPC and Order 9 Rule 13 CPC are reproduced as under :- Section 152 CPC Amendment of judgments, decrees or orders - 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." Order 9 Rule 13 CPC