Kamlesh Mehta Since Deceased Through Lrs vs. Vinod Garg

Facts

The petitioner, Kamlesh Mehta (since deceased, through LRs), filed a suit for possession, recovery of arrears of rent, and damages against the respondent, Vinod Garg. A decree for possession was passed based on the defendant's admission, which was later dismissed-in-default on appeal. The suit proceeded for recovery of rent and damages. The plaintiff sought arrears of rent and damages for the period 01-06-2018 till 10.10.2018, totaling Rs. 6,50,000/- plus Service Tax/GST, and also sought future damages at Rs. 1,50,000/- per month. The Trial Court passed a final decree on 18.12.2023, awarding Rs. 8,70,000/- as per prayer (b). However, the petitioner contended that the Trial Court erred by granting a lump sum of Rs. 1,50,000/- for future damages instead of the monthly rate sought in prayer (c). The petitioner filed an application under Section 152 CPC for amendment, which was dismissed by the Trial Court on 07.06.2024, holding no clerical error and that altering the judgment would be impermissible.

Held

The High Court held that the petitioner had not clearly highlighted the error before the learned Trial Court, having confined themselves primarily to prayer (b) while the aspect of future damages was contained in prayer (c). The Court found that this inadvertent error on the part of the petitioner likely led to the dismissal of their request. Consequently, the High Court directed the learned Trial Court to hear arguments afresh on the application moved under Section 152 read with Section 151 CPC and decide it afresh in accordance with the law. The petitioner was also granted liberty to move an application seeking review, and the Trial Court was expected to consider it in accordance with the law. The petitioner was directed to appear before the Trial Court on 04th November, 2024. The present petition was disposed of in these terms. The Court explicitly stated that the challenge in the present petition was only with respect to the order dated 07.06.2024 dismissing the application under Section 152 CPC, and if the petitioner wished to challenge the decree itself, a Regular First Appeal would be the appropriate course.

Key Issues

1. Whether the Trial Court erred in dismissing the petitioner's application under Section 152 CPC, holding that there was no clerical error in the final decree regarding the award of future damages for use and occupation, thereby failing to grant damages at the rate of Rs. 1,50,000/- per month as sought in prayer (c)? The petitioner argued that the Trial Court committed a clerical error by awarding a lump sum of Rs. 1,50,000/- for future damages instead of the monthly rate of Rs. 1,50,000/- as specifically prayed for in prayer (c) of the plaint. The petitioner contended that this was an inadvertent mistake in the judgment and sought correction under Section 152 CPC. The petitioner relied on the plaint's prayer (c) and the Trial Court's own observation during the ex-parte judgment that the point of consideration included entitlement to continuous damages at Rs. 1,50,000/- per month. The respondent did not appear before the High Court. The Trial Court, in its order dated 07.06.2024, held that there was no clerical error and that any interference would amount to altering the judgment.