Andhra HC (Pre-Telangana)
The Singareni Collieries Company ... vs H. Sugunakar Rao And The Land ... on 8 July, 2004
Equivalent citations: 2004(5)ALD9, 2004(5)ALT205, 2004 A I H C 4100, (2004) 5 ANDH LT 205 (2004) 5 ANDHLD 9, (2004) 5 ANDHLD 9
ORDER Dharma Rao Elipe, J.
1. This Civil Revision Petition is filed against the Order dated 5.12.2002 in I.A. No. 515 of 2002 in O.P. No. 25 of 1994 on the file of the Senior Civil Judge, Peddapalli, Karimnagar District, wherein the Senior Civil Judge allowed the interlocutory application on the ground that there is a mistake which can be said that accidental omission or slip by which the claimant is being adversely affected and likely to deprived of the fruits of the decree in O.P. No. 25 of 1994 unless the same is rectified by amending the schedule of the decree in O.P. No. 25 of 1994. It is further observed that though the mistake is crept in the schedule is not due to any typographical mistake or any mistake of the Court, it is only due to the mistake of Land Acquision Officer and as such, in view of the decisions cited and in view of the law to rectify the said mistake by amending the schedule of the decree dated 22.3.2001 passed in O.P. No. 25 of 1994 in the interest of justice. The above amendment petition was allowed with a condition that against the judgment in O.P. No. 25 of 1994, an appeal was preferred pending before the High Court in Appeal No. 2532 of 2002, the appeal was disposed off on 19.11.2002, and therefore, the above said amendment of schedule is subject to confirmation by the Hon'ble High Court.
2. Against this order, the present Civil Revision Petition is filed contending that the learned Senior Civil Judge, Peddapalli, has acted contrary to law by exercising jurisdiction not vested in him. Further, the learned Senior Civil Judge has acted with material irregularity in allowing the Interlocutory Application, though the petition as filed is not maintainable in law. Further, the learned Judge has exercised his jurisdiction by stating that mistake is an accidental omission and the same is contrary to record. It is further contended that the learned judge ought not to have entertained the amendment as sought for by the petitioner-claimant No. 8 as the matter was ceased by the High Court. Moreover, the extent of land of Acs.5.25 guntas in Sy. No. 413 in the name of the petitioner-claimant No. 8 which was not in the original reference made by the Land Acquision Officer to the Subordinate Court.
3. On the other hand, the learned counsel appearing for the respondent-claimant submitted that the learned Senior Civil Judge, came to the conclusion that the mistake would have crept in accidentally or by omission and therefore, ordered for the amendment of the schedule of the decree in O.P. No. 25 of 1994. Therefore, the order can be sustainable under law.
4. The facts of the case are that the land measuring Ac. 18.01 guntas in Sy. No. 377 and another extent of Ac. 5.25 guntas in S. No. 413 situated in Jangaon village and total extent comes to Ac.23-26 guntas which belongs to the petitioner and an amount of Rs. 1,77,375/- was paid by way of compensation to the above said extent, determining the value at Rs. 7,500/- per acre, vide Award dated 8.1.1991 and an application has made by the respondent-claimant herein, closely referred under Ex.B1. The total extent covered by the award is Ac. 66-17 guntas, out of which, the Land Acquision Officer has deposited the amount to the extent of Ac. 2-11 guntas of the land pertaining to the land situated in S. No. 390 under Section-30 of the Land Acquision Act (for short 'the Act') and thereafter, he referred the remaining extent of land Ac. 64-06 guntas under Section 18 of the Act to the Subordinate Court, Peddapalli for determination of compensation. Accordingly, the Court passed judgment on 16.3.2001 in O.P. No. 25 of 1994 and in the schedule attached to the decree; the land to the extent of Ac.5-25 guntas was omitted by mistake. The total extent of Ac. 23-26 guntas of land belongs to the claimant was acquired, but the decree shows only Ac. 18-01 guntas of land in Sy. No. 390 Omitting Ac.5-25 guntas in Sy. No. 413. Therefore, he filed the above interlocutory application to amend the schedule attached to the decree.
5. The respondents have filed their counters stating that the Land Acquision Officer acquired the land to the extent of Ac. 66-17 guntas situated at Jangaon village vide Award Proceedings No. B/53/89, dated 8.1.1991 for the purpose of depillaring of 2A-Incline and paid compensation to the concerned claimants and the claimants have admitted payment of compensation, out of the extent of the land to the extent of Ac.18-01 guntas in Sy. No. 377 and the land to the extent of Ac. 5-25 guntas in Sy. No. 413. It is further admitted that the claimant has received the amount under protest and filed a petition under Section-18 of the Act for enhancement of compensation for both the said lands. Accordingly, the matter was referred to the Subordinate Court, showing the petitioner as claimant as Sl. No. 8. It is admitted that when compared to the fair copy, the total amount was shown correctly as Rs. 3,60,807, but the particulars of land in columns No. 1 to 3 was shown as "377-dry-1801" wrongly, instead of "377-dry-1801 and 413-dry-5-25" which is typographical error. Accordingly, the Court below in its Order in O.P. No. 25 of 1994, dated, 22.3.2001 has shown only Sy. No. 377 measuring Ac. 18-01 guntas against Sri H. Sugunakar Rao (claimant No. 8). But actually the claimant H. Sugunakar Rao is eligible for enhancement of compensation for both the lands in S. No. 377-dry to the extent of Ac.18-01 guntas and in S. No. 413 to the extent of Ac.5-25 guntas of land. Accordingly, requested the Court to rectify the schedule of the decree in O.P. No. 25 of 1994 dated 22.3.2001 including the Sy. No. 413 measuring Ac. 5.25 guntas against Sri H. Sugunakar Rao/claimant No. 8.
6. The learned Judge, took the matter on consideration and considering the Section - 152 of Civil Procedure Code, accidental slip or clerical mistake or mistake in plaint creeping in to judgment and decree, the power of Court to correct it, allowed the interlocutory application. Interestingly, it has to be noted that after disposal of the said O.P. No. 25 of 1994 the matter was carried to the High Court in appeal and when the appeal is pending against the enhancement of compensation, the claimant has came to know the mistake and filed interlocutory application to correct the decree before the trial court, but even when the trial court has entertained the said application, the High Court has disposed off the main appeal itself on 19.11.2002, whereas the learned Subordinate Judge has disposed of the said I.A. on 5.12.2002. Therefore, on the basis of the above stated facts and circumstances of the case, I am of the considered view that the learned counsel for the petitioner herein submitted that when the appeal is pending before the High Court, the respondent should have approached the High Court for correction of the decree and the Court below should have rejected the I.A., by directing the respondent to approach the Court to make the same prayer into the High Court when the matter is pending. It is further contended that when no proceedings are pending before the learned Subordinate Judge with regard to O.P. No. 25 of 1994 disposed off and the court below should not have entertain the above said I.A., and allow the same when the appeal is disposed of by the High Court.
7. In support of his contention, the learned counsel for the petitioner relied on the decision reported in Hari Krishan Vs. State of Pepsu, AIR 1958 Punjab 590 wherein it was held that:
"It is well settled that on the reference is limited to the questions that are referred by the appellate tribunal and the High Court cannot decide such questions that have not been referred. Similarly, the Court under the Land Acquision Act derives its jurisdiction from the reference which is made by the Collector under Section 18 and there is no provision in the statute which enables the Court to go behind the reference and determine questions which have not been referred to it."
8. Further, applying the above decision to the facts of the case before the Court, it was held:
"The present case can be decided in the light of the aforesaid principle. Inasmuch as the Collector has not referred the question of limitation to the Court and, thus, the Court had absolutely no jurisdiction to decide the question of limitation. It must, therefore, be held that the view of the learned District Judge, that it was open to him to decide the question of limitation, after the reference had been made by the Collector, was untenable and unsound."
9. Further, he relied on decision, reported in Sital Parshad Vs. Kishori Lal, . In support of his contention that when once the O.P. is disposed of by the learned Senior Civil Judge, Peddapalli and an appeal is preferred against the judgment and decree and the appeal is disposed of by the High Court, the order passed by the learned Senior Civil Judge, merged with the order passed by the High Court. Therefore, the learned Senior Civil Judge has no jurisdiction to entertain the application. In the above decision, the Apex Court held that:
"Generally speaking, the decree of the appellate Court supersedes the decree of the trial Court even when it confirms that decree and, therefore, it is well settled that only the appellate Court can amend the decree thereafter:"
10. Therefore, he contended that when the matter is pending before the High Court for consideration, the respondent should have approached the High Court for amendment of the schedule in the decree of the O.P.
11. He also relied on the decision reported in Kunhayammed Vs. State of Kerala, the Apex Court held that:
"The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Art.136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
12. On the other hand, the learned counsel for the respondents submitted that the Judgment reported in P. Mallamma Vs. Kunche Chinna Mangamma, 2002(1) An.W.R. 45 (A.P.) the learned single Judge, while considering the Sections 115, 151 and 151 of C.P.C. the Court may correct the clerical or arithmetical error in the decree and judgment or errors arising therein from out of any accidental slip or omission at any time either on its own motion or on an application of any of the parties. Mere, pendency of the appeal does not preclude the trial Court to amend the decree or judgment. The trial Court has come to a conclusion that it is a bonafide mistake, so long as the appeal is not disposed of, the order of the trial court is not merged with the appellate order. But I am not able to accept the submissions made by the learned counsel for respondent that by the time of disposal of I.A., the appellate court has disposed of the appeal. Therefore, the Senior Civil Judge, has lost its jurisdiction to entertain the petition. In the judgment relied on by the learned counsel for the respondent, the court categorically held that: So long as the appeal is not disposed of by the appellate Court, the order of the trial Court is not merged in the appellate order. If the trial Court has come to a conclusion that the appeal is disposed of, the order of the trial Court merged with the order passed by the appellate court. This judgment is not applicable to the facts and circumstances of the present case.
13. From the above discussion, as rightly contended by the learned counsel for the petitioner that as on the date of filing of the I.A. to amend the schedule of the O.P.25 of 1994, appeal is pending before the superior Court against the judgment of the inferior Court of the Senior Civil Judge, Peddapalli in O.P.25 of 1994 and at the time of disposal of the I.A. the superior Court has disposed of the appeal. Therefore, when he noticed that the appeal is disposed of, he ought not to have, in the first instance, entertained the application and dispose of the same. Therefore, he has committed material irregularity in entertaining the I.A. and disposing of the same, when no matter is pending before him as stated above. Once, he has disposed of the O.P.25 of 1994, he lost the jurisdiction to entertain the I.A. The case of the respondent - Land Acquisition Officer that he committed mistake while fair copying the reference, by not mentioning the extent, cannot be accepted for the simple reason that had it been true, the Land Acquisition Officer should have approached the court for rectification of such mistake, in the schedule of property, which he did not chose to do. From the above discussion and having regard to the ratio laid down by the High Court of Punjab and Haryana in Hari Krishan (1st supra), that the judgment should not be outside the scope of the reference made by the Land Acquisition Officer, the amendment ordered by the learned Senior Civil Judge, Peddapally, is contrary to the law and passed transgressing jurisdiction, in view of the fact that the matter was seized by this court and subjected to an appeal. That apart, the learned Senior Civil Judge has erred in passing the impugned order, having noticed that the appeal is disposed of by this court, by the time the lower court was considering the I.A. for amendment of schedule. Therefore, he ought to have directed the parties to approach this court for correction of the schedule of property.
14. Therefore, viewed from any angle, I am satisfied that the learned Senior Civil Judge, Peddapalli, has committed material irregularity in passing the order dated 5.12.2002 in I.A. No. 515 of 2002 in O.P. No. 25 of 1994, impugned herein, and is, therefore, liable to be set aside, and accordingly set aside. In the result, the Civil Revision Petition is accordingly allowed. No costs.