Patna High Court
Gorakh Giri vs Surendra Giri And Ors. on 10 March, 2004
Equivalent citations: 2004(1)BLJR763
JUDGMENT Nagendra Rai, J.
1. The plaintiff-petitioner is aggrieved by the order dated 22.1.2003, passed by the Additional District Judge-III, Siwan, in Title Appeal No. 103 of 1983, rejecting the application filed by the petitioner under Sections 151, 152 and 153 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). The prayer made on behalf of the petitioner is to incorporate reliefs, prayed for in the suit, in the judgment and decree, which have been omitted by the appellate Court while allowing the appeal after setting aside the dismissal of the suit by the trial Court.
2. The factual matrix necessary for disposal of the present matter are that the petitioner filed Title Suit No. 81 of 1972 in the Court of the 2nd Munsif, Siwan, against the defendant-opposite parties under Order I, Rule 8 of the Code for declaration that the disputed land is a public land and the defendants have no right and title over the same and they have no right and title to construct wall, Palani etc. over the suit land and also for delivery of possession after removal of the illegal structure of the defendant-opposite parties from the suit land.
3. The trial Court dismissed the suit. The plaintiff preferred Title appeal No. 103 of 1983, which was allowed on 18.12.1987 and the operative part of the judgment is that the appeal succeeds and the order of the Court below is hereby set aside. In terms of the aforesaid judgment, a decree was prepared and it also incorporated the same terms.
4. The plaintiff-petitioner levied execution and prayed for delivery of possession in terms of the prayer made in the plaint, which was numbered as Execution Case No. 10 of 1988. The defendant-opposite parties raised objection to the executability of the decree by filing an objection under Section 47 of the Code, which was registered as Misc. Case No. 24 of 1988. The objection was allowed and the execution case was dismissed on the ground that there was no direction for giving delivery of possession. The petitioner preferred an appeal, which was dismissed by the 1st Additional District Judge, Siwan, on the ground that no appeal was maintainable against the order passed under Section 47 of the Code. Thereafter, the petitioner filed Civil Revision No. 1180 of 1993 in this Court, which was dismissed on 9.4.1997 with observation that the order would not stand in way of the petitioner to proceed in the matter in accordance with law.
5. Thereafter, an application was filed by the petitioner under Sections 151, 152 and 153 of the Code for the amendment of the judgment and decree, wherein a prayer was made that though the appeal has been allowed but there is a clerical mistake in the judgment and decree as the reliefs, as prayed for in the plaint for delivery of possession etc., have not been incorporated in the judgment and decree and such judgment and decree do not represent the correct state of affairs and it is a fit case where the clerical mistake due to omission of the aforesaid facts may be corrected. The Court below has rejected the said prayer by the impugned order on the ground that the amendment sought for by the petitioner is not an accidental slip or omission and for allowing the amendment a fresh finding is required to be given by the Court.
6. Learned counsel for the petitioner submitted that once the appellate Court has set aside the dismissal of the suit and allowed the appeal, it means that all the reliefs prayed for in the plaint have been allowed and the appellate Court should have incorporated the said facts in the judgment and decree and for its omission, the plaintiff-petitioner should not suffer.
7. Learned counsel for the opposite parties, on the other hand, submitted that there was no direction for delivery of possession in the judgment and decree and such mistake cannot be rectified by taking recourse to the provisions contained in Sections 151, 152 and 153 of the Code.
8. The Courts are meant for administration of justice and as such it is inherent in their constitution to have a power to achieve that end and to undo the wrong. Section 151 of the Code provides that every Court has inherent power to pass such orders as may be necessary for the ends of justice and to prevent abuse of the process of the Court. Section 152 of the Code empowers the Court to correct clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from any accidental slip or omission and Section 153 thereof gives general power to amend any defect or error in any proceeding in a suit or to make necessary amendments for the purpose of determining the real question or issue raised by or depending on such proceeding. These powers have been vested in the Court with the sole purpose to see that no party should suffer due to mistake of the Court and ends of justice or administration of justice is not defeated by clerical or arithmetical mistakes, omissions or such similar errors.
8A. Order XX of the Code contains a provision with regard to judgment and decree and it provides as to what the judgment and decree should contain. Order XX, Rule 4, Sub-rule (2) provides that the judgment of the Courts, other than small cause Courts, shall contain as concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision and Order XX, Rule 6-A, as incorporated by CPC. Amendment Act 104 of 1976, requires the last paragraph of judgment to indicate in precise terms the reliefs granted. Order XX, Rule 6 contains a provision with regard to the contents of decree, which provides; inter-alia, that it shall contain the number of the suit, names and description of the parties, their registered addresses, particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
9. So far as the judgment and decree of the appellate Court is concerned, the provision is contained under Order XLI, Rules 31 and 35 of the Code. Rule 31 provides that the judgment of the appellate Court shall be in writing and shall state the points for determination; the decision thereon; the reason for the decision; and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Rule 35 provides, inter-alia, that the decree shall contain the number of the appeal, the names and description of the appellant and respondent, and a clear specification 6f the relief granted or other adjudication made. It shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be payable.
10. In the present case, the suit was dismissed and the appeal of the plaintiff-petitioner was allowed; and the judgment and decree of the trial Court were set aside. It was the duty of the appellate Court to pass a judgment and decree in terms of Order XLI, Rules 31 and 35 of the Code. Unfortunately it has not passed the judgment in terms of the same and has only allowed the appeal. The appellate Court intended to grant relief as prayed for by the plaintiff but has not, expressed so in the judgment and decree and as such there was a clerical mistake or omission on the part of the appellate Court to state the reliefs allowed. The decree-holder petitioner cannot be allowed to suffer due to the aforesaid mistake of the appellate Court and to meet such situations, provisions have been made under Sections 151 and 152 of the Code to rectify the mistake so that the parties may not suffer due to mistake of the Court and the justice is not frustrated due to omission made by the Court. The case in hand is squarely covered by a recent judgment of the Supreme Court in the case of Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and Ors., reported in (2003) 1 SCC 197, wherein it has been held that the power under Section 152 of the Code can be exercised in such a situation. In the said case, the suit was filed for recovery of Khas possession and other reliefs. The suit was dismissed by the trial Court as well as by the first appellate Court. However, the High Court set aside the judgments and decrees of both the Courts below and allowed the same. Operative part of the judgment and decree was that the appeal is allowed with cost and the case was being sent back to the original Court for preparation of the decree accordingly. Thereafter, the trial Court drew up a decree with cost only in terms of the operative part of the judgment and decree of the High Court. The plaintiff applied for execution praying therein for grant of the relief as set out in the plaint. The said prayer was objected by the judgment-debtor that no such direction was given in the judgment and decree of the High Court. The executing Court stayed the execution case on the said ground till preparation of proper decree in the suit and, thereafter, the trial Court, which was also the executing Court, by a separate order directed for preparation of the decree containing all the reliefs claimed for by the plaintiff in the plaint. The said order was challenged by the judgment-debtor, but was upheld by the High Court and the matter went before the Apex Court. Dealing with the said matter, the Apex Court held that the learned single Judge allowing the appeal, should have clearly and precisely stated the extent and manner of reliefs to which the plaintiffs were found to be entitled in his view of the findings arrived at during the course of the appellate judgment. The parties, the draftsman of the decree and the executing Court cannot be left guessing what was transpiring in the mind of the Judge decreeing the suit or allowing the appeal without further placing on record the reliefs to which the plaintiffs are held entitled in the opinion of the Judge. It further held that recourse can be taken to Section 152 of the Code for rectifying the aforesaid mistake. In paragraph No. 14 of the said judgment, it was held as follows :--
"14. How to solve this riddle? In our opinion, the successful party has no other option but to have recourse to Section 152, CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors ' arising therein from any accidental slip or omission being corrected at any time by the Court either on its own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the Court by couching the reliefs to which the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the Court to vary its judgment so as to give effect to its meaning and intention. Power of the Court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when the order was made was upheld by Bowen, LJ. in Swire, Re, Mellor v. Swire (1985) 30 Ch D 239 : 53 LT 205 (CA) subject to the only limitation that the amendment can be made without injustice or on terms which preclude injustice. Lindley, LJ observed that if the order of the Court, though drawn up, did not express the order as intended to be made then.
"there is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to the House of Lords by way of appeal"."
11. Thus, it is now well-settled law that such mistake can be corrected by taking recourse to Section 152 of the Code.
12. Coming to the facts of the present case, it is clear that the appellate Court accepted the claim of the plaintiff-petitioner and set aside the judgment and decree of the trial Court and allowed the appeal. The intention of the appellate Court was to grant all the reliefs as prayed for by the plaintiff-petitioner in the plaint, but the same was not expressed in the judgment and decree and, thus, there was a total failure on the part of the appellate Court to deliver the judgment in terms of the statutory provisions contained under Order XLI, Rules 31 and 35 of the Code. The appellate Court, thus, committed a jurisdictional error in holding that it has no power to rectify the mistake by taking recourse to Section 152 and other sections of the Code as mentioned in the petition. Accordingly, the impugned order is set aside and the appellate Court is directed to make necessary rectification in the judgment and decree clarifying the reliefs, which in the opinion of the appellate Court the plaintiff-petitioner was entitled keeping in view the intention expressed in the judgment.
13. In the result, this Civil Revision is allowed and the impugned order passed by the Court below is set aside.