- (1.) THE petitioners have challenged the order dated 26.05.2011 passed by Civil Judge, Junior Division Ludhiana by which application filed by Rajan Pawa under Section 151 of Code of Civil Procedure (in short 'the CPC') for rectification of the affidavit tendered in his examination -in -chief has been declined.
(2.) RESPONDENT herein is the plaintiff who has filed suit for possession of land measuring 283 Sq. Yds. out of plot No. 9 comprised in Khasra No. 3075/2426/1700/924, 3073/2426/1700/924 situated in village Mahal Bagat, Tehsil and District Ludhiana. In its evidence, the defendants examined Rajan Pawa/defendant No. 1, who tendered his affidavit in his examination -in -chief as Ex.DW1/A. Thereafter, defendant No. 1 realised that there were some mistakes in the affidavit and filed application for rectification of the following mistakes: - "a) At page 1 of the affidavit in para no. 2 in the 5th line of the word 'streets' is to be substituted as 'streets' b) At page 2 of the affidavit in first line after the khasra no. 1700/2 before the word 'Khasra no. 3075' the word thus' is to be added. c) At page 2 of the affidavit in the 16th line of the centre after the word 'plan' and before the word 'stated' 'Ex. D -1' is to be added. d) At page 2 of the affidavit in the 18th line after the words so far as the word 'other' is to be deleted and the word 'southern' is to be written. e) At page 2 of the affidavit in the 23rd line after the word 'which shown as', the word 'red' 'is' to be deleted and in the same line 'Ex. D -1' is to be substituted as 'Ex.D -2' f) At page 2 of the affidavit in the last line, after the word plan, Ex. D -2 is to be substituted as Ex. D.1 g) In the 3rd page of the affidavit in the 7th line after the word '9' before the word 'out' the word 'and' is to be substituted by the word 'but'. In the next line after the word 'and', the word 'khasra no. 3074' is to be deleted and after the word '3076', the word 'which' to be added. h) In the 3rd page of affidavit in 9th line after the word 'Numbers' and before the word 'prior' the word 'are' is to be deleted and the same line after the word 'and' before the word 'considered' the word 'were is to be added. i) In the 3rd page of the affidavit in 14th line after the word 'the' and before the word 'plots' the word 'Numbers' is to be added. j) In the 3rd page of the affidavit in the 18th line after the word 'without' and before the word 'demure' the word 'a' is to be rewritten as 'any'. k) In the 4th page of the affidavit in the 6th line the word 'ear' after the word 'the' and before the '1984' is to be substituted 'year'. l) In the 4th page of the affidavit in the 9th line after the word 'sold' and before the word 'out' the following words are to be added: - 'a portion' In the same line after the word 'same' and before the word 'adjoining' the following word is to be added 'plot'. In the same line after the word 'adjoining' and before the word 'property' the following is to be added: - 'to the' m) In 4th page of the affidavit in the 9th line last word 'through' is to be substituted as though' n) In the 4th page of the affidavit 7th line from the bottom the word 'sloe deed' is to be read as 'sale deed'. o) In the 4th page of the affidavit in the last line after the word 'claim' and before the word 'plot' the word 'this' is to be written as 'his'. p) At the 5th page of the affidavit in the 5th line after the word 'defendants' and before the word 'claim' the word 'the plaintiff' is to be substituted as 'Amar Parkash Bhatia'. q) In the 5th page of the affidavit in the 8th line after the word 'when' before the word 'from' the word 'accounted' is to be replaced as 'counted'. r) In the 5th page of the affidavit in the 9th line 'Khasra no. '97' and '98' are to be rewritten as 'khasra no. 4798'. s) In the 5th page of the affidavit in the 9th line the sentence starting from 'A' New plot' till the words 'the defendant' is to be written as under: - "A new plot no. 9 when counted from northern point falls in khasra no. 4798 and the defendants have rightly purchased the plot no. 8 in khasra no. 4753 which khasra no. was never transferred to any body by Gurparsad Trust earlier except to the vendors of the defendants". t) At page 5th of the affidavit in the 12th line after the word 'the plot of' and before the word 'fell' the word 'the plaintiff' is to be substituted as 'Amar Parkash Bhatia'. u) At page 5th of the affidavit in the 13th line after the word 'the claim of' and before the word 'on' the word 'the plaintiff' is to be substituted as 'Amar Parkash Bhatia'. v) At page 5th of the affidavit in the 19th line the first word 'the plaintiff' is to be substituted as 'Amar Parkash Bhatia'. w) At page 6th of the affidavit the para no. 2 is to be written as para no. 2 -A. x) At page 6th of the affidavit the para no. 2 in the 9th line in the vasika no. 4429 is to be substituted as vasika no. 9429. y) At 6th page of the affidavit in para no. 2 in the second line from the bottom '23.1.1981' is to be substituted as '23.11.1981.' z) In the 7th page of the affidavit in the second line after the words 723 sq. yards and before the words 'the deponent', the words the 'father of' are to be deleted. z -1) At the 7th page of the affidavit in the 5th line after the word 'from this' and before the word the deponent the word 'the father of' is to be deleted and similarly in the same line after the word 'the deponent' and before the word 'has also' the word 'and his brother' is to be added. z -2) In page 12 of the affidavit in para no. 8 in the second line the vasika No. '6230' is to be substituted as vasika No. '6730'. z -3) In page No. 12th of the affidavit in para no. 8th in the 5th line the word 'subscribed' is to be substituted as 'scribed'. z -4) In page No. 13th of the affidavit in the 14th line from the top the 'Ex. DW2/15B' is to be substituted as 'Ex. D10/B'. z -5) In page 14th of the affidavit in the 10th para in the 4th line the date '3.9.87' is to be written as '3.9.1977'. z -6) At page 15th of the affidavit at 12th para in the 2nd line from the bottom after the word 'one' and before the word 'has also' the word 'Sheela Bhatia' is to be substituted as 'Amar Parkash Bhatia'. z -7) At the page 15th of the affidavit at 12th para in the last line the word '283' is to be substituted as '426 -2/9'. Counsel for the petitioners has submitted that the learned trial Court has erred in not exercising its jurisdiction while dismissing the application as there were typographical errors in the affidavit which could have been corrected while exercising its inherent jurisdiction. However, the learned trial Court dismissed the application with the following observations: - "After considering all argument on behalf of both parties with reference to case laws, I have found that none of the case laws of defendant relates to rectification in affidavit. So, these cannot be applied to the facts of present application. On the other hand case law refer by plaintiff/respondent 2010(3) CCC 443 (P&H) may be of some significance, but even then it is clear that it is well know that affidavit is a sworn statement and rectification of affidavit implies the withdrawl from one stand taken by him on one point which is not permissive. It is also a fact that clerical mistake may occur anywhere, even some times in orders or judgments, this occurs and the same can be corrected by using inherent powers but even there, court cannot rectify any findings give in order or judgment hence, one thing is clear that if as per one person, has used word 'street' then he wants to replace it with 'streets' it means he will refer to the plural sense of a noun which will change the whole sense. Then if khasra number will be allowed to be change, it will effect the facts of the case. If word 'other' will be substituted by word 'southern' then it will refer to direction which may not be in the mind of deponent while signing and attesting affidavit. Then, exhibition made by deponent also cannot be allowed to be changed and if allowed it will be equivalent to the miscarriage of justice. Replacement of word 'Amar Parkash Bhatia' with plaintiff will also change the sense. If Vasika number will be allowed to be changed, then also it will bring entirely new sense. Under these circumstances, under no circumstances, such amendments as rectification can be allowed. As mentioned earlier will regard to use of Section 151 CPC by court in connection with its own order, even it is not permissive for court to recall or revise its own order, then how it will be used for the statement on oath of a party. Thus, application stands dismissed being not maintainable. To come up on 27.7.2011 for remaining defendant evidence. Long date has been given to heavy rush of work before full of summer vacation."
(3.) COUNSEL for the respondent has submitted that there is no provision in the law to allow rectification in the affidavit which is tendered as statement in examination -in -chief. I have heard both the learned counsel for the parties and examined the record. Before I advert to the arguments raised by learned counsel for the parties, I would refer to Order 18 Rule 4 of the CPC which reads as under: - "Recording of evidence. - (1) in every case, the examination -inchief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of this Court. (2) The evidence (cross -examination and reexamination) of the witness in attendance, whose evidence (examination -in -chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub -rule, consider taking into account such relevant factors as it thinks fit: (3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit. (4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may be general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (8) The provisions of rules 16, 16 -A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule." Order 18 Rule 4 has been brought in the Code by Act No. 22 of 2002 with an objective for speedy trial of the case by allowing examinationin - chief to be recorded on affidavit. Since the affidavit contemplates the statement recorded by the Courts itself, the Code does not provide any kind of rectification, if there is any error occurs in the affidavit which may be typographical or otherwise. Learned counsel for the petitioners has also failed to point out any provision in this regard or cite any judgment to the effect that the statement recorded in examination -in -chief can be amended by way of any application.;