Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh & Ors. vs Brijlal Tibrewal & Ors.

HELD: 1.1 While passing order below the “Note for speaking to the Minutes”, the High Court travelled beyond its jurisdiction in regard to the scope of deciding a “Note for speaking to the Minutes”. A “Note for speaking to Minutes” is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants any rectification of any typographical error and any clerical mistake regarding the date or number, such a party may apply to the concerned Court for correcting such an error in the judgment/order. However, a “Note for speaking to the Minutes” cannot be considered at par with a review application or in a given case, with an application for clarification/modification of an order. While passing the impugned order below the “Note for speaking to the Minutes”, the High Court virtually modified its original order passed in First Appeal. While passing the impugned order, the High Court has given further directions as if the High Court was passing the order on an application for clarification/modification. Therefore, such a course was not open to the High Court while deciding a “Note for speaking to the Minutes”. Since, the High Court has travelled beyond its jurisdiction in regard to the scope of deciding a “Note for speaking to the Minutes”, the impugned order passed below the “Note for speaking to the Minutes” is set aside. [Para 12][888-A-E]

1.2 Even otherwise, the impugned orders are not sustainable at law. It was the Appeal before the High Court, preferred by the Appellants herein–original Defendants, challenging the judgment and decree passed by the Trial Court, by which the Trial Court specifically passed a decree directing the only Defendant No.1 to convey the title and execute document in favour of the Society in respect of Suit Building and land to the extent of Suit Building. The area of Suit Building was 1009.70 sq. meters. Against that judgment and decree, original Private Defendants-Appellants were before the High Court. The Trial Court never passed any decree directing the Appellants to execute the Deed of Conveyance to the extent of 2700 sq. meters of land. Therefore, while dismissing the appeal, even otherwise, the High Court could not have passed any further order beyond the judgment and decree passed by the Trial Court and that too in absence of any cross objection and/or cross appeal preferred by the original Plaintiffs. In an Appeal preferred by the original Defendants, at the most, the High Court can dismiss the Appeal and confirm the judgment and decree. However, the Appellantsoriginal Defendants cannot be put in a worse condition than beyond the judgment and decree passed by Trial Court which was appealed before the First Appellate Court and that too in the absence of any cross-appeal or cross objection by the original Plaintiffs. Therefore also, the impugned orders passed by the High Court which, as such, will go beyond the judgment and decree passed by the Trial Court are not sustainable. Thus, by passing the impugned order, it can be said that the High Court has passed order beyond the scope and ambit of the Appeal before it and has exceeded in its jurisdiction not vested in it. [Para 12.1] [888-F-H; 889-A-D]

1.3 Even otherwise, it is not appreciable how the High Court has arrived at the figure of 2700 sq. meters. It appears from the material on record that it was never the case on behalf of the original Plaintiffs that the original Defendant No.1-Trust shall execute the Deed of Conveyance of the land to the extent of 2700 sq. meters. Even considering the map sanctioned by the Corporation and even considering the reply filed by the Corporation before this Court, it appears that the total plot area of CTS No. 97/A-5/2 on which the building A-1 was constructed, was 2593.70 sq. meters, out of which there was construction of building A-1 on the land admeasuring 1009.70 sq. meters. Therefore also, the impugned order passed by the High Court directing the Appellants herein-original Defendant No.1 to execute the Deed of Conveyance in respect of the land to the extent of 2700 sq. meters is not sustainable.[Para 12.2] [889-E-G]

1.4 The impugned orders passed by the High Court dated

23.12.14 passed below “Note for speaking to the Minutes”, in First Appeal and the order passed in Civil Application deserve to be quashed and set aside. [Para 12.5][890-H; 891-A]

1.5 The original Plaintiff-Society shall not be entitled to the Deed of Conveyance to the extent of area admeasuring 2700 sq.meters and/or even 2593.70 sq.meters and they shall be entitled to the Deed of Conveyance of the area admeasuring 1009.70 sq.meters which was the built up area of building A-1 and, therefore, the judgment passed by the High Court confirming the order passed by the Divisional Registrar Co-operative Societies of deemed Conveyance of the area admeasuring 2593.70 sq. meters is also quashed and set aside. The order passed by the Divisional Registrar of Deemed Conveyance of the area admeasuring 2593.70 sq.meters is modified to the extent of granting deemed Conveyance of the area admeasuring 1009.70 sq.meters only. [Para 13.1, 15][891-D-F; 892-B]