Andhra HC (Pre-Telangana)
Tandra Satyanarayana Rao vs Tandra Paparao And Ors. on 13 February, 1997
Equivalent citations: 1997(2)ALT474
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
ORDER R. Bayapu Reddy, J.
1. This revision petition is filed questioning the orders of the I Addl. District Munsif, Rajahmundry dated 5-11-1992 dismissing I.A.No. 1182/91 in O.S. No. 1204/1973 which was filed for amendment of the Judgment and preliminary decree passed in the suit.
2. The plaintiff in the suit O.S. 1204/73 who is the brother of the present petitioner, had filed the said suit seeking partition and separate possession of his l/5th share in the plaint schedule properties against the present petitioner who was the second defendant in the suit and some other defendants. The petitioner contested the suit contending that he is also entitled for l/5th share in the suit properties. The said suit was disposed of on 24-10-1981 passing a preliminary decree. It was directed in the said decree that the plaintiff is entitled to l/5th share in items 1 to 4 and some other items in A-Schedule and 1 / 6th share in some other items of A & B Schedules. Under issue No. 6 framed in the suit, it was found by the trial Court that the petitioner herein is also entitled for l/5th share in items 1 to 4 of plaint A-Schedule. But in the operative portion of the Judgment there was no mention about the share for which the petitioner was held to be entitled in the properties and as such, nothing was mentioned in the preliminary decree also about the share of the petitioner in the family properties. The petitioner subsequently filed I.A.No. 248 of 1982 seeking appointment of Commissioner for partition of his share and for ascertaining profits. But the trial Court rejected his request for partition of his share in the properties on the ground that the findings given under issue No. 6 in the suit were not carried out in the operative portion of the Judgment and in the preliminary decree drafted in pursuance of such Judgment and as such, the petitioner was not entitled to seek any relief for partition. In view of such circumstances, the petitioner filed I.A. No. 1182/91 under Sections 151, 152 and 153 C.P.C. seeking amendment of the Judgment so as to carry out the finding given under issue No. 6 and consequent amendment of preliminary decree relating to his l/5th share in the family profits.
3. The respondents 2, 3 and 4 in that petition, who are also made as respondents in the present revision petition, contested the said application contending that the amendment of the Judgment and decree as prayed for cannot be permitted under Secs. 151, 152 or 153 C.P.C. as there was no clerical or arithmetical mistake in the Judgment and Decree; that if he was aggrieved by the Judgment and Decree as passed by the trial Court, he ought to have questioned the same by filing appeal, revision or review of such Judgment and Decree but not by a petition for amendment of the Judgment and Decree and that the petition may, therefore, be dismissed. The learned District Munsif agreed with such contention of the respondents and dismissed the petition. The present revision is filed questioning such orders of the lower Court.
4. The point for consideration is whether there are any valid reasons to interfere with the impugned orders of the lower Court in the present revision?
5. It is now clear from a perusal of the judgment in O.S.No. 1204 of 1973 that the present petitioner who was the second defendant, contested the suit specifically contending that he is also entitled for a share in the family properties and a specific issue as issue No. 6 was framed to determine whether he is entitled for any such share. Issue No. 6 was dealt with by the trial Court in para-20 of the Judgment, wherein it is specifically found that the second defendant, who is the present petitioner, is also entitled for l/5th share in items 1 to 4 of the plaint A-Schedule family properties. Issue No. 21 is the general issue framed for determining the relief to be granted to the parties. But under issue No. 21 which is dealt with in para-28 of the Judgment, the trial Court passed the preliminary decree for partition and it was observed that the plaintiff is entitled to l/5th share in items 1 to 4 subject to mortgage and also in some other properties in plaint A & B Schedule. But the finding arrived at under issue No, 6 regarding the share of the petitioner was not given effect under the general issue No. 21 which contains the operative portion of the Judgment. In a suit for partition, every party to the suit is in the position of plaintiff and the preliminary decree has to specify not only the share of the plaintiff but also the shares of the parties interested in the property and it also enables the Court which passes the Decree to give such further directions as may be required. In the present case, though the learned District Munsif gave a specific finding under issue No. 6 that the petitioner herein is also entitled for l/5th share in items 1 to 4 of A-Schedule, he failed to give effect to such finding in the operative portion of the Judgment and consequently the preliminary decree passed in pursuance of such Judgment was also silent on that aspect. Such failure to mention the share of the petitioner in the operative portion as well as in the preliminary decree is only due to accidental slip or omission in giving effect to the specific finding arrived at in the Judgment. The Court is not only entitled but is bound to brush aside a mere technicality which stands in the way of justice and to amend such mistakes, slips or omissions as may appear in the Judgment or Decree, to preserve justice in order to give effect to the real and substantial right of the parties. The test to determine whether the slip or omission as contemplated under Section 152 C.P.C. is accidental or not is to see whether the Judgment and Decree as they stand represent the intention of the Judge at the time he passed the same. The minimum requirement to determine such question would be the presence of some material or indication in the Judgment that the Court had originally intended to provide or grant such relief which was, however, omitted in the operative portion of the Judgment. If there are any such errors arising from accidental slip or omission they can be corrected subsequently not only in the Decree drawn but even in the Judgment pronounced and signed by the Court. In the present case, as already stated above, there was a specific finding given by the Court that the petitioner is entitled for l/5th share in items 1 to 4 of A-Schedule family properties and the intention of the Presiding Officer for granting relief to the petitioner herein regarding his share in the family properties is quite evident from such specific finding given in issue No. 6. The subsequent omission to carry out such intention in the operative portion covered by issue No. 21 can therefore be said to be due to accidental slip or omission and in view of such omission, the preliminary decree was also silent about the share of the petitioner in the properties. Section 152 C.P.C. is intended only to cover such cases. Such mistakes in the Judgment and Decree can be amended even under the provisions of Section 151 and 153 C.P.C. in order to give effect to the intention of the Presiding' Officer as revealed from a over all perusal of the Judgment. Therefore, the lower Court has erred in rejecting the petition for such amendment of Judgment and Decree by observing that the omission in the operative portion of the Judgment and in the preliminary decree to mention about the share of the petitioner cannot be said to be due to any accidental slip or omission and also holding that the only relief open to the petitioner is to file appeal or revision or a review petition to question such Judgment and Decree. Such finding of the lower Court is clearly erroneous and illegal and is, therefore, liable to be interfered with in the present revision.
6. In the decision reported in Gousi Bewa v. Ari Pradhan, a similar question arose for consideration. In a partition suit, the Court gave a finding that the disputed properties are ancestral properties and that certain branches of the family had separated by metes and bounds. But in the operative part of the preliminary decree, the entire ancestral property was directed to be divided and as a result of such observation, the other parties had to get the separated property of the third defendant. Under such circumstances, it was held that it was a clear case where a mistake of the Court has caused prejudice to the third defendant in the suit and that the trial Court ought to have corrected the preliminary decree which was admittedly inconsistent with the finding on the issue decided in the suit. In the case concerned in the decision reported in Kale Gowda v. Akkayyamma, the issue No. 5 relating to the right of possession was decided in the suit in favour of the plaintiff. But in the operative portion of the Judgment and in the Preliminary Decree, the said relief was, however, not incorporated. Under those circumstances, it was held by the Court that such omission was only due to accidental slip and as such the amendment shall be allowed under Section 152 C.P.C. In that decision, the Karnataka High Court relied upon the decision of the Supreme Court reported in Samarendra v. Krishna Kumar , wherein it was held that there is an inherent power in the Court which passed the Judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its Judgment so as to give effect to its meaning and intention. In the present case also, even though a specific finding was given under issue No. 6 that the petitioner who is the second defendant is also entitled for 1/5th share in items 1 to 4 of plaint A- Schedule, such finding was, however, not given effect in the operative portion of the Judgment evidently due to accidental slip or omission, and consequently the preliminary decree was also silent about such finding. It is further to be seen that by effecting such amendment in the Judgment and Decree, the interests of the plaintiff or any other defendant in the suit are not at all adversely affected. It is, therefore, just and proper that the Judgment and Preliminary Decree shall be amended so as to give effect to the intention of the Court to give a share to the petitioner as found under Issue No. 6.
7. It is, however, to be seen that under Issue No. 6 there is no finding given by the trial Court regarding the mesne profits claimed by the petitioner-second defendant and as such, the Judgment and Preliminary Decree cannot be amended so as to enable the petitioner to claim any such profits.
8. In the result, the revision petition is allowed but without costs and the orders of the lower Court are set aside and it is held that the operative portion of the Judgment and Preliminary Decree shall be amended declaring l/5th share of the petitioner who is the 2nd defendant in the suit, in items 1 to 4 of plaint-A. Schedule properties.