Chinna Marudachalam and Another vs Chinnaiya Gounder alias Renganna Gounder

AR. Lakshmanan, J.—The revision is directed against the fair and decretal orders dated 12.7.1996 made in I.A. No. 230 of 1996 in O.S.

No. 167 of 1988 on the file of the II Additional District Munsif of Coimbatore, allowing an application filed by the respondent herein/defendant u/s

152, C.P.C., praying for to amend the decree dated 29.3.1994 in accordance with the prayer sought for in the suit.

The revision is filed by the plaintiffs. They filed the suit against the respondent herein claiming that the suit property is surrounded by a Pallam to

the width of 10 feet running North-South on the West, S.F. No. 737 on the North and Avanashi road on the South and third parties lands on the

east. The Pallam on the western side is running from north-south carrying rain water from the entire fields on the north to south and reached east-

west Pallam abutting the Avanashi main road and that the entire land owners of the said area provided the said Pallam and used the same to drain

the water in order to avoid stagnation of rain water in their respective fields and to protect the standing crops in the lands. It is also averred in the

plaint that the said pallam is in existence for the last several decades and it is the only source of draining the rain and sullage water from the lands of

the plaintiffs and other neighbouring land owners. According to the plaintiffs, the defendant is the owner of the lands on the western side of the

pallam and he formed a lay out of his lands and divided his lands into the plots and sold the same to various third parties and the defendant to

collusion with his close associates is trying to close the said pallam and to annex the area covered by the said pallam to the respective sites and that

if the defendant is allowed to do so, the entire rain water and sullage water from the northern side will stagnate in the lands of the plaintiffs and not

only the crops will be spoiled but also there will be no access for the drain water to reach the pallam abutting Avanashi road.

The reliefs asked for in the plaint are as follows:

The plaintiff therefore prays that this Hon''ble Court may be pleased to pass a decree against the defendant

(a) declare that the suit pallam is in existence for the last several years and the same is the only source Of draining the rain water from the lands on

the northern side of Avanashi road;

(b) restraining the defendant and his men and servants and associates from in any way interfering with the suit pallam by means of a permanent

injunction;

(c) and directing the defendant to pay the costs of the suit;

(d) and to grant such other and further reliefs.

The suit was posted on 29th March, 1994 before the II Additional District Munsif, Coimbatore. Counsel for the defendant/respondent herein

reported no instructions and the defendant was called absent and set ex pane. Thereupon, the court proceeded to pass the decree as follows:

It is hereby declared that the plaintiffs are the absolute owners of the suit pallam which is in existence for the last several years and the same is

the only source of draining the rain water from the lands on the northern side of Avanashi road;

and that the defendant and his men and servants and associates be and hereby restrained from in any way interfering with the suit pallam by

means of permanent injunction;

and that the defendant do pay to the plaintiffs a sum of Rs. 183.25 being the costs of this suit.

Since the decree has not been drafted in accordance with the prayer in the plaint, which is for a declaration that the suit pallam is in existence for

the last several years and the same is the only source of draining the rain water from the land on the northern side of Avanashi road and for an

injunction to restrain the defendant from in any way interfering with the suit pallam, the defendant filed I.A. No. 230 of 1996 to amend the decree

dated 29.3.1994 as follows:

PROPOSED AMENDMENT

In decretal portion in Clause 1 the words ""that the plaintiffs are the absolute owners of the suit pallam"" to be deleted.

The said application was filed u/s 152, C.P.C. It is stated in the affidavit filed in support of the above application that the lower court has granted a

decree for a declaration in favour of the plaintiffs/ petitioners herein as if they are the absolute owners regarding which there is no prayer and that it

is rather surprising that the decree has been provided in such a manner and the plaintiffs, having obtained a copy of such an erroneous decree, are

claiming absolute rights of ownership over the pallam and fencing the same. It is further contended that the decree has been provided incorrectly

and since the mistake is apparent on the face of the records, it has to be amended forthwith, since it is only a clerical mistake. It is also pointed out

in the affidavit that there is no pleading to the effect that the plaintiffs are the absolute owners of the suit pallam and immediately after coming lo

know that the Court has declared them as absolute owners, the petition to amend the decree dated 29.3.1904 in accordance with the prayer and

judgment by deleting the words ""that the plaintiff''s are ihe absolute owners of the suit pallam"" was filed.

The second plaintiff filed an additional counter statement, denying all the allegations contained in the affidavit filed in support of the above

application. It is contended that the decree has been drafted in accordance with the prayer and that the lower court is competent to grant a decree

basing on the evidence and materials placed before the court and it is for the aggrieved party to question the same in an appeal and not by way of

an application u/s 152, C.P.C. It is also stated that the defendant having failed in I.A. No. 235 of 1995, which is an application filed u/s 5 of the

Limitation Act to condone the delay in filing an application to set aside an ex parte decree and having not filed a revision in the High Court, the

present application u/s 152, C.P.C. is incompetent.

The II Additional District Munsif, Coimbatore by her order dated 12.7.1996 after hearing the counsel on either side passed the following order:

The ex parte judgment does not at any place disclose that there is a finding that the plaintiff is the absolute owner of the suit pallam. The relief

claimed in the prayer also does not reveal that there is a prayer for declaration of plaintiff''s absolute ownership. The decree is therefore not

depicting the findings in judgment and is also not in accordance with the prayer. The error is apparent on the face, which is clerical in nature.

Therefore, the I.A. is allowed and the point ''plaintiffs are the absolute owners of suit Pallam'' is deleted.

Pronounced by me in open Court, this the 12th day of July, 1996.

Sd/- N. Meenal.

II Addl. District Munsif.

Aggrieved against the same, the plaintiffs have preferred the above revision in this Court.

Mr. D. Rajendran, learned Counsel appearing for the petitioners submitted that the Court below has failed to consider the scope of Section

152, C.P.C. and has erred in granting the relief by way of amendment, which is not sustainable in law. The defendant/respondent having remained

ex parte before the lower court, is not entitled to amend the decree u/s 152, C.P.C. and in the absence of any revision against the order of the

lower court rejecting the application u/s 5 of the Limitation Act to condone the delay in filing a petition to set aside the ex parte decree and to

restore the suit, the application now presented and ordered by the lower court is incompetent. It is also urged that the amendment of the decree

can be granted only in respect of arithmetical and clerical mistakes and not the relief granted by the court below. Therefore, it is submitted that the

order of the lower court is liable to be set aside.

In support of his contention, Mr. Rajendran relied on the following judgments reported in Bhikhi Lal and Others Vs. Tribeni and Others, ,

Velayudhan Nair Vs. Kerala Kshemam Yunik Kuries Pvt. Ltd., Trichur, and E. Venkata Subba Rao v. K. Nagabhushanatn AIR 1974 A.P. 352 ,

Bhikhi Lal and Others Vs. Tribeni and Others, referred to supra was cited by the learned Counsel for the petitioners for the proposition that if a

decree is not in conformity with the judgment, the Court has the duty to amend the decree so as to bring it in conformity with the judgment and in

the instant case since the decree is in conformity with the judgment of the lower court, it cannot be amended by way of an application u/s 152,

C.P.C. and therefore, the order of the lower court is not in order. It is true that the decree passed in the instant case was in terms of the judgment.

It is also equally true that the petition filed by the defendant herein to condone the delay in filing a petition to set aside the ex parte decree is

dismissed and the respondent has not so far challenged the same by way of revision or appeal. In the instant case the relief asked for in the plaint

by the petitioners/plaintiffs is only to declare that the suit pallam is in existence for the last several years and the same is the only source of draining

the rain water from the lands on the northern side of Avanashi road and for restraining the defendant from in any way interfering with the suit pallam

by means of a permanent injunction. Nowhere it is pleaded that the petitioners/plaintiffs are the absolute owners of the suit pallam. However, a

judgment was passed by the lower court declaring the petitioners/plaintiffs as the absolute owners of the suit pallam, which is in existence for the

last several years. As rightly pointed out by Mr. T.R. Rajagopalan, learned senior counsel that the decree has been incorrectly drafted by the

Office in such a manner declaring that the petitioners/plaintiffs are the absolute owners of the suit pallam when such a plea is not pleaded in the

plaint. In my opinion, the judgment reported in Bhikhi Lal and Others Vs. Tribeni and Others, is distinguishable from the facts of the present case.

Velayudhan Nair Vs. Kerala Kshemam Yunik Kuries Pvt. Ltd., Trichur, was relied on by the learned Counsel for the petitioners for the

proposition that even a wrong or erroneous decree passed with jurisdiction is binding on the parties just like a correct decree unless it is rectified

by appeal or other remedies available according to law and that Section 151 of the Code can have application only when no other remedy is

available according to the existing provision of law. The learned single Judge of the Kerala High Court has also taken the view that in exercise of

the inherent powers, court cannot over-ride general principal of law and it could only be for securing the ends of justice or preventing abuse of the

process of court and in order to prevent such prejudice court can always exercise inherent powers. But when the prejudice is as a result of

something done by court consciously in exercise of judicial discretion and other remedies are open to the party, there is no question of invoking

inherent powers u/s 151, C.P.C. and therefore, the said provision cannot be invoked as a substitute for the appeal, revision or review.

Emani Venkata Subba Rao''s case, A.I.R, 1984 A.P. 352 was rendered by a learned single Judge of the Andhra Pradesh High Court for the

proposition that even if a judgment was erroneous or wrong, Section 151 or Section 152, C.P.C. cannot be invoked for amending the same and

the proper remedy is to prefer an appeal against the wrong judgment. I am unable to share the views taken by the learned single Judge of the

Andhra Pradesh High Court in E. Venkata Subba Rao v. Nagabhushanam AIR 1984 A.P. 352 and the learned single Judge of the Kerala High

Court in Velayudhan Nair Vs. Kerala Kshemam Yunik Kuries Pvt. Ltd., Trichur, in view of the judgment of the Supreme Court reported in

Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag,

Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, is directly on the point. The Supreme Court has opined that the errors arising

from accidental slip can be corrected subsequently not only in decrees drawn up by Ministerial Officer but even in judgment pronounced and

signed by the Court. The Supreme Court also referred to the judgment in L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, . In

that case two questions were raised. (1) Whether the trial court was competent to pass a final decree for foreclosure though the preliminary decree

was for sale and (2) Whether the respondent had the right to contend that he was entitled to redeem the said mortgage in view of the fact that he

was the execution purchaser of part of the equity of redemption pendente lite. While answering the questions raised, the Supreme Court held as

follows:

(11) Now, it is well settled that there is ah 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.

Every court"" said Bowel, L.J. in Mellor v. Swire (1885) 30 Ch.D. 239, ""has inherent power over its own records so long as those records are

within its power and that it can set right any mistake in them. An order even when passed and, entered may be amended by the court so as to

carry out its intention and express the meaning of the court when the order was made."" In L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer

and Others, , the decree as drawn up in the High Court had used the words ""mesne profits"" instead of ""net profits"". In fact the use of the words

mesne profits"" came to be made probably because while narrating the facts, these words were inadvertently used in the judgment. This Court held

that the use of the words ""mesne profits'' in the context was obviously the result of inadvertence in view of the fact that the decree of the trial court

had specifically used the words ""net profits"" and therefore the decretal order drawn up in the High Court through mistake could be corrected under

Sections 151 and 152 of the Code even after the High Court had granted certificate and appeals were admitted in this Court before the date of the

correction. It is true that under Order 20, Rule 3 of the Code once a judgment is signed by the Judge it cannot be altered or added to but the rule

expressly provides that a correction can be made u/s 152. The Rule does not also affect the court''s inherent power u/s 151. u/s 152, clerical or

arithmetical mistakes in judgments decrees or orders 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 an application by any of the parties. It is thus manifest that errors arising from an accidental slip can be

corrected subsequently not only in a decree drawn up by a ministerial officer of the court but even in a judgment pronounced and signed by the

court.

The learned senior counsel then sought support fromR.Srinivasan v. Thamhusamy (1996) 2 L.W. 539. This Court (A.R. Lakshmanan, J.) held

that the wide language of Sections 152 of 153. C.P.C. would cover a case like the present one and that the correction of an error need not always

amount to an amendment of a pleading. The order was passed by me following the decision of our High Court in Chekku and Others Vs. Mukthiar

Managers of Poomulli Mana Krishnan Nambudripad and Another, (Dr. Rajamannar, O.C.J.) and Appat Krishna Poduval Vs. Lakshmi Nathiar

and Others, and also of the Punjab and Haryana High Court in Mohinder Singh and Others Vs. Teja Singh and Others, .

Learned senior counsel for the respondents next relied on the judgment reported in Varada Reddiar and Another Vs. Jayachandran and

Others, , for the proposition that the court can exercise its powers u/s 115 of the CPC and Article 227 of the Constitution of India to rectify any

mis-carriage of justice the moment it comes to the notice of the court. In the concluding portion, the learned Judge has observed as follows:

The case on hand is also similar. A decree which is beyond the scope of the suit has been granted, thereby depriving certain Temples of their

properties. A wrongful gain has been obtained by the plaintiffs, respondents 1 and 2 herein. The decree passed by the court below has resulted in

miscarriage of justice. Therefore, this is a fit case where I have to exercise my powers under Article 227 of the Constitution of India. Accordingly,

by exercising my powers under Article 227 of the Constitution of India. Accordingly, by exercising my powers u/s 15, C.P.C. and Article 227 of

the Constitution, I modify the decree passed by the court below as follows:

The decree of the court below will be read as if injunction was there restraining the defendant (third respondent herein) for conducting auction on

24.7.1991 or any other date till 30.6.1992, and the defendant was entitled to auction or lease out the properties after the said period.

The civil revision petition is allowed as indicated above. No costs.

I may also usefully refer to the decision of Srinivasan, J. reported in ""Annapoorani v. Janaki (1995) 1 L.W. 141, the learned Judge treated the

revision petition, which came up for hearing before him as a suo inotu revision petition by exercising his powers under Article 227 of the

Constitution of India. That was a case where a daughter-in-law filed a suit against the mother-in-law, claiming to be a legal heir of her husband.

She claimed that she is the absolute owner of the property. Though the mother also had an equal share as a heir to her son, the mother did not

contest the matter and ultimately a decree was passed in favour of the plaintiff. Execution proceedings were taken. It was at that time, a question

came up for consideration whether the decree is legally valid. The learned Judge held thus:

When this Court finds that a decree suffers from an error of law apparent on the face of the record owing to non-application of mind of the court,

to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There

can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as class I heirs and all of them are entitled to

succeed to the estate of the deceased Hindu. There is no earthly reason for depriving the mother of the deceased, of her legitimate share in the

estate which in this case happens to be a moiety. This is a typical case of miscarriage of justice which should be rectified the moment it comes to

the notice of the court. It is only for that reason, I am exercising my powers u/s 115 of the CPC and Article 227 of the Constitution of India.

I am therefore of the opinion that the petition filed by the respondents herein/defendants u/s 152, C.P.C. after the decree to correct the error is

perfectly in order and the Courts are empowered to correct the mistake under Sections 151 and 152 of the Code of Civil Procedure. An argument

was advanced by Mr. Rajendran that under Order 20, Rule 3 of the Code, once a judgment is signed by the Judge, it cannot be altered or added.

In my opinion, the above rule expressly provides that a correction can be made u/s 152, C.P.C. and the Rule does not also affect the court''s

inherent power u/s 151, C.P.C. Therefore, it is thus manifestly clear that the errors arising from an accidental slip can be corrected subsequently

not only in a decree drawn up by a Ministerial Officer of the court, but even in a judgment pronounced and signed by the court. It is well-settled

that the act of the court should not prejudice any party and courts have the duty to see that their records are true and represent the correct state of

affairs. In order to prevent such prejudice, court can always exercise inherent powers. This Court (Sathiadev, J.) also held that there is no time-

limit for correcting clerical or arithmetical mistake under Sections 151 and 152, C.P.C. The said opinion was expressed by the learned Judge in the

judgment reported in V.R. Srinivasa Raghavan and Ors. v. Kannammal alias Janaki, Power Agent N.C. Rajagopal and Ors. 1980 T.L.N.J. 50.

The civil revision petition, therefore, fails and is dismissed. However, there will be no order as to costs. Consequently, C.M.P. No. 11122 of

1996 is also dismissed.