Patna High Court
Dwarka Prasad Jhunjhunwala And Ors. vs Jahuri Sah And Ors. on 15 February, 1962
Equivalent citations: AIR1963PAT158, AIR 1963 PATNA 158
ORDER
1. This is an application by the plaintiffs for granting them appropriate relief with respect to their claim for compensation for future use and occupation of the house in question, from the date of filing of the suit till they are given possession of their share after final decree for partition.
2. In support of the application, it was urged by the learned Government Advocate, appearing for the plaintiff-petitioners, that when this Court accepted the agreement between the parties, and held that the plaintiffs were entitled to a decree for money at the rate of Rs. 200/- a month, for three years prior to the institution of the suit, this Court inadvertently omitted to mention further in its judgment that the plaintiffs were also entitled to compensation at the same rate from the date of the institution of the suit until Khas possession Is delivered to them after partition.
3. The application, however, was opposed by Mr. S. C. Sinha, appearing for the defendants opposite party, and it was urged by him that this application was not maintainable because such a direction cannot now be given unless an application for a review of the judgment of the first appeal was filed by the plaintiff-petitioners. It was also contended that if this application Is allowed, then the defendants will have to file another appeal against the order passed on the present application, as the defendants have already filed an application for leave to appeal to the Supreme Court against the original Judgment of the first appeal.
4. In the suit in question, the reliefs claimed by the plaintiffs have been mentioned by us in our original Judgment dated the 13th May, 1950. The relief claimed in Clause (b) was with respect to compensation upto the date of institution of the suit on the 11th September, 1951. In Clause (c) the plaintiffs had prayed for compensation for future use and occupation of the plaintiffs' share in the house in question, from the date of filing of the suit until possession was given to the plaintiffs. Upon the agreement alleged by the parties, we held as follows:
"After a review of the evidence adduced under issue No. 4, I will hold that the plaintiffs have been able to prove satisfactorily that there was an agreement between the plaintiffs' ancestor and Ramsahai Sah, brother of defendants 1 and 2, to pay compensation to the plaintiffs at Rs. 200 per month for the use and occupation of the plaintiffs' half share of the house (minus the portion occupied by Sri Sah Shib Charan Sen,)"
Upon this finding, at page 17 of our judgment we held that the plaintiffs were entitled to a decree at the rate of Rs. 200/- per month, for three years prior to the institution of the suit. It is obvious that in not giving the plaintiffs any relief in connection with Clause (c) of the reliefs, mentioned above, we made an inadvertent omission, although we accepted the agreement puf forward by the plaintiffs. There can be no doubt that the judgment in the first appeal dated the 13th May, 1960, as it stands, does not represent the intention of the Court at the time of making it. The whole tenor of the judgment shows that this particular relief mentioned in Clause (c) was in our mind, inasmuch as we quoted the reliefs claimed by the plaintiffs in extenso, It is clear therefore, that by an accidental error we made no reference to Clause (c) of the reliefs claimed; but as we accepted the agreement alleged by the plaintiffs, it cannot be said that we rejected, even inferentially, the relief claimed in Clause (c) mentioned above.
5. In our opinion, the accidental omission made in the judgment of the first appeal in question falls within the purview of Section 152 of the Code of Civil Proce-
dure and it is the duty of this Court to correct the mistake made by it. The omission to make an order contemplated by Order 20 Rule 12(1)(c) of the Code of: Civil Procedure was an accidental slip and it ought to be corrected by this Court. Reference may be made to a decision of the Calcutta High Court, in the case of Kalidas Rakshit v. Saraswatf Dasi, AIR 1943 Cal 1. The question now is, whether it is necessary to direct an enquiry, mentioned by Order 20 Rule 12 of the Code of Civil Procedure, or whether we should pass a decree at the rate of Rs. 200/- per month from the date of institution of the suit until delivery of possession to the plaintiffs or expiration of three years from the date ot decree, whichever event first occurs. Reference in this connection may again be made to a decision of the Calcutta High Court, in the case of Ganeshi Lal Sharma v. Sm. Snehlata Dassi, AIR 1947 Caf 68. Upon a review of the case law on the subject, it was held in Ganeshi La; Sharma's case, AIR 1947 Cal 68 that a Court would be quite within its rights if it passed a decree for mesns profits payable subsequently to the suit if, in the circumstances of the case, an enquiry is unnecessary. In our opinion, the same position prevails in the instant case. As we have accepted the agreement alleged by the plaintiffs to the effect that the defendants were in occupation of the plaintiffs' share in the house minus a small portion, by agreeing to pay compensation at the rate of Rs. 200/- per month, we should pass a decree in favour of the plaintiffs at the rate of Rs. 200/- per month from the date of institution of the suit until Khas possession is delivered to the plaintiffs or expiration of three years from the date of the decree of this Court, whichever event first occurs.
6. There does not appear to be any substance in the objection raised by Mr. S. C. Sinha to the effect that if this application is allowed, the defendants will have to file a separate appeal. It was admitted by Mr. S. C. Sinha that the defendants have not yet filed any memorandum of appeal in the Supreme Court. It will be open, therefore, to the defendants, if they are so advised, to take grounds of appeal in their memorandum of appeal, when filed before the Supreme Court, objecting to the present order, and the amended jungment or this Court. It may, however, be noted that the learned Government Advocate has given an undertaking on behalf of his clients, the plaintiff-petitioners, that the defendants will be entitled to attack the validity of the present order in their proposed appeal to the Supreme Court, and that the plaintiff-petitioners will not urge before the Supreme Court that a separate appeal is necessary.
7. The result, therefore, is that this application succeeds, and it is allowed, and, we direct that the last paragraph of our judgment passed in First Appeal No. 132 of 1955, dated the 13th May, 1960, be substituted by the following, with the result that the last paragraph or the judgment of this Court will now be read as follows:
"It is, therefore, clear that the judgment and decree of the learned Additional Subordinate Judge passed in this case must be reversed. It is held that the plaintiffs are entitled to a decree for money at the rate of Rs. 200/- per month for three years prior to the institution of the suit, and, also at the same rate from the date of institution of the suit until recovery of Khas possession of the plaintiffs' share after partition or until expiration of three years from the date of decree-of this Court, whichever event first occurs. The plaintiffs will be entitled to claim interest at the rate of six per cent. per annum upon the amount decreed in favour of the plaintiffs for the years prior to the institution of the suit, as well as to interest at the rate of six per cent. per annum on the principal sum due from the date of the suit to the date of the decree, and, thereafter, to interest at the rate of six per cent, per annum upon the amounts due to the plaintiffs until realisation. The plaintiffs will be entitled to a decree for partition by metes and bounds in accordance with the first relief claimed as mentioned above. The plaintiffs will be entitled to proportionate costs of the Court below as well as of this Court."
Parties will bear their own costs of this application.