The Bombay High Court allowed an application seeking to rectify the typographical mistakes/clerical errors in the name of Defendant No.5 in the cause title and the description of the suit property in the schedule of drawn-up Consent Decree dated 28 April 1982. The court observed that the corrections which can be legitimately made by invoking section 152 are only accidental omissions or mistakes.
Brief Facts:
The Applicants had instituted a suit for a decree of specific performance of an agreement for sale dated 27 November 1978, supplemental agreement dated 14 December 1979, and the agreement dated 28 March 1980, of the properties. On 28 April 1982, pursuant to the settlement arrived at between the Plaintiffs and Defendant Nos.1 to 13, Consent Terms were executed by the Counsel for the Plaintiffs, Defendant Nos.1 to 11, and Defendant Nos.12 and 13 for and on behalf of the Plaintiffs and Defendants. The decree drawn pursuant to the Consent Terms was to operate as a conveyance of the property.
Whilst the Consent decree was, thus, given effect to and acted upon, the Plaintiffs filed an application with the City Survey Officer to mutate their names in the property card of the suit property. It was noticed that there were discrepancies in the area of the suit property in the property card and the consent decree. During the inquiry by the City Survey Officer, Mr. Joseph Bernard Pereira raised an objection on the ground that he was not Joseph Anthony Pereira, who was impleaded as Defendant No.5.
In view of the aforesaid objection and after noticing the discrepancies in the description of the suit property, the City Survey Officer declined to correct the area of the suit property and mutate the names of the Plaintiffs on the property card. The Plaintiffs were advised to get the Consent Decree amended. Hence, this Application.
Contentions of the Applicant:
The learned counsel for the Applicant argued that Mr. Joseph Bernard Pereira, having executed an agreement for sale and received the benefit under the Consent decree, has unjustifiably resisted the mutation of the name of the Plaintiffs to the property card by taking undue advantage of a typographical error.
Contentions of the Defendant:
The learned counsel for the Defendant argued that by the present Interim Application, the Plaintiffs seek to enlarge the area of the suit property from 3300 sq. meters to 3423 sq. meters. However, in none of the agreements of which specific performance was sought by the Plaintiffs, the said area finds mention. All the agreements uniformly record that the suit property admeasures 3300 sq. meters. Disguised as an application for amendment of the Consent decree, the Plaintiffs intend to usurp the property to which they are not entitled to. Hence, the Application be dismissed with exemplary costs.
Observations of the Court:
The Court observed that the Court is empowered to correct the clerical or arithmetical mistakes in judgments or orders or errors arising therein from any accidental slip or omission. The stage of the proceeding does not matter. Such a correction can be made at any time. However, the Court further observed, the corrections which can be legitimately made by invoking section 152 are only accidental omissions or mistakes. Any correction which touches upon the merits of the case falls beyond the purview of section 152 of the Code.
The Court remarked that in the face of the aforesaid instruments, of which specific performance was sought by the Plaintiffs, and the connected documents, the identity of Mr. Joseph Bernard Pereira as one of the vendors becomes fairly established. Mis-description of the suit property can be corrected by the Court in the exercise of the power under Sections 152 and 151 of the Code, even post decree.
The decision of the Court:
The Bombay High Court, allowing the application, held that the application deserves to be granted as the Consent decree has been executed and acted upon to the fullest.
Case Title: M/s. Rahul Trading Corporation and Anr. v Bernard Anthony Pereira and Ors.
Coram: Hon’ble Justice N. J. Jamadar
Case no.: INTERIM APPLICATION (L) NO.8297 OF 2021
Advocate for the Applicant: Mr. Induprakash Tripathi
Advocate for the Defendant: Mr. Zishan Quazi and Mr. Vikramjeet Garewal
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