Final Order 2

Order Details: Order below exhibit
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No. 133 of 2019
(CNR No.MHCC010044882019)
Anil Visaria
Age: 45, Occupation : Business
At: 6 Shyamrao Vitthal Marg, ..Appellant
Lamington Road, Mumbai 7 (Org. Opponent No.2)
Versus
1. LIC Of India
a statutory corporation established
under the Central Act No.XXXI of 1956
having its Western Zonal Office at
'Yogakshsema' West Wing,
Jeevan Bima Marg,
Mumbai 400021 (Org. Applicant.)
2. The Legal Heirs Of Shri D. N. Mhatre
(decd) Room No.1/2, Ground Floor,
Sita Chawl, New Badamwadi,
VP Road, Girgaum Mumbai 4 (Org. Opponent No.1)
3. Estate Officer
Western Zonal Office at
'Yogakshema' West Wing,
Jeevan bima Marg,
Mumbai 400021 ..Respondents
Mr.S.R.Page, Ld.Advocate for appellant.
Mr.K.N.Kandekar,Ld. Advocate for respondent No.1/LIC
Coram : H.H.THE PRINCIPAL JUDGE
URMILA S. JOSHIPHALKE
(C.R.NO.19)
Dated : 5th May, 2022
ORDER ON APPLICATION
Present application is filed by applicant/Respondent No.1 LIC u/s.
152 of C.P.C. for correction in judgment.
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2. By preferring this appeal, the appellant/opponent No.2 has
challenged the judgment and order passed by the Estate Officer. Said
appeal is disposed of by this Court vide judgment dt.23.2.2022. By this
judgment, order passed by the Estate Officer dt.29.3.2019 directing
Opponent No.2 to pay Rs.98,38,188/is set aside and modified to the
extent that Opponent No.2 i.e. appellant is liable to pay a sum of
Rs.53,82,912/ towards damages with compound interest @ 9% p.a.
considering the area which is in his possession i.e. 450 sq.ft.carpet area.
The Estate Officer has awarded the damages from 1.9.2015 to
31.3.2019 and thereafter from 1.4.2019 till handing over possession of
the application premises with compound interest. As per contention of
the applicant/respondent No.1 LIC, the possession was handed over on
30.1.2020. Hence, said period is to be included in the judgment and
opponent No.2 be directed to pay the damages for the said period also.
3. Admittedly, while giving reasoning to Point No.3, it is observed
by this Court that Opponent No.2 has challenged the order of the Estate
Officer regarding award of damages. While ascertaining the damages,
this Court has considered the evidence of Valuer. Valuer A.W.3
R.C.Malhotra has been examined by the applicant/LIC as well as
opponent No.2 has also examined his valuer and this Court has given
finding that Opponent No.2 is in possession of 450 sq.ft. carpet area.
Working on market rent as on 1.9.2015, this Court has awarded the
damages from 1.9.2015 till 31.3.2019. However, not mentioned
anything about the damages for the further period.
4. Said application is strongly opposed by opponent No.2/appellant.
It is contention of opponent No.2/appellant that in view of Sec. 152 of
C.P.C. clerical or arithmetical mistakes in judgments, decrees or orders
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or errors arising therein from any accidental slip or omission may at any
time be corrected by the Court either on its own motion or on the
application of any of the parties. Thus, this provision shows that
accidental slip or omission or clerical or arithmetical mistake which is
committed at the time of passing the judgment, may be corrected at any
time.
4. While passing the operative order, this Court has already
mentioned that the order passed by the Estate Officer dt.29.3.2019
directing opponent No.2/appellant to pay Rs.98,38,188/is hereby set
aside and modified to the extent that Opponent No.2/appellant is liable
to pay a sum of Rs.53,82,912/ towards damages with compound
interest @ 9% p.a. considering the area which is in his possession i.e.
450 sq.ft.carpet area. While giving reasoning also in Para 28, this Court
has observed that Estate Officer has wrongly awarded the damages
calculated against Opponent Nos.1 and 2. Opponent No.2 is only liable
to pay damages considering his possession over 450 sq.ft. carpet area.
Whereas legal heirs of opponent No.1 are liable to pay arrears of rent
alongwith interest as well as damages to the extent of Room No.1 of the
application premises which is in their possession. Therefore, order of
the Estate Officer is to be modified to that extent by observing that
Opponent No.2/appellant only liable to pay to the extent of area which
is in his possession. Thus, this Court has modified the order of the
Estate Officer only to extent of area. The damages are awarded by this
Court @ Rs.1,25,184/ per month. The damages are awarded by this
Court as per the order of the Estate Officer for 43 months. Thus, order
of the Estate Officer is modified only to the extent of area which is in
possession of opponent No.2/appellant. Estate Officer has already
awarded the damages for further period also. Inadvertently, the further
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period is not mentioned in the operative part. The operative part itself
shows that order of the Estate Officer is set aside to the extent of
amount which is calculated considering the possession of entire area.
Whereas Opponent No.2 was in possession of 450 sq.ft. carpet area.
Rest of the order regarding further period is maintained by this Court.
However, it is inadvertently not mentioned in the operative part and
therefore, application deserves to be allowed. Therefore, judgment is to
be corrected to the extent that opponent No.2 is liable to pay damages
@ Rs.1,25,184/ per month for the further period from 1.4.2019 to
30.1.2020. Accordingly, the correction is to be made in Para 28 as well
as in clause (3) of operative part of the judgment. In judgment in Para
28, it is to be corrected that opponent No.2 is also liable to pay damages
for further period from 1.4.2019 till handing over the possession.
Accordingly, operative part of the judgment is to be corrected to that
extent only. Hence, I proceed to pass following order:
ORDER
Judgment is hereby corrected in Para 28 by mentioning that
“As per order of the Estate Officer, opponent
No.2/appellant is also liable to pay damages from
1.4.2019 till handing over the possession.”
Accordingly, operative part Clause (3) is to be corrected as:
Opponent No.2/appellant is liable to pay damages @
Rs.1,25,184/per month from 1.4.2019 till handing over
possession to the applicant/Respondent No.1 LIC.
Date: 5.5.2022 (Urmila S. Joshi Phalke)
Principal Judge,
City Civil Court,
Gr.Bombay.
Dictated on : 5.5.2022
Transcribed on : 5.5.2022
Signed on : 5.5.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: B.S.Parab
Upload date and time: 6.5.2022 (At 6.06 pm)
Name of the Judge H.H.THE PRINCIPAL JUDGE
SMT.URMILA S.JOSHIPHALKE
(C.R.No.19)
Date of Pronouncement of Order 5.5.2022
Order signed by P.O. on 5.5.2022
Order uploaded on 6.5.2022
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