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Judgment
S. Ravi Kumar, J—This petition is filed under Sections 152 & 153-A of CPC seeking amendment of decree dated 08-12-2010 in A.S. No. 1884/2001 by awarding interest on solatium and additional market value and to pass such other orders that are deem proper and necessary.
Petitioner herein is appellant in A.S. No. 1884/2001, which is preferred challenging the Reference Court order in O.P. No. 02/1993. Land Acquisition Officer-cum-Special Deputy Collector, Yeleru Reservoir Project, Unit-III, Peddapuram acquired an extent of Acs.4-20 cents of agricultural land in Survey No. 34/1 and Ac.1-70 cents of land in Survey No. 36/1, situated at Bhavaram Village, Jaggampeta Mandal, East Godavari District for the purpose of Yeleru Reservoir Project. The Land Acquisition Officer passed an Award on 25-10-1991 in Award No. 1/1991 granting an amount of Rs. 11,000/- per acre and not satisfied with the award of the Land Acquisition Officer, petitioner made a request to refer the matter to the Civil Court and accordingly, it was referred to Senior Civil Judge, Peddapuram under Section 18 of the Land Acquisition Act. Senior Civil Judge, Peddapuram, after due enquiry, enhanced market value of the land from Rs. 11,000/- per acre to Rs. 40,000/- per acre and also awarded Rs. 51,330/- as solatium and a sum of Rs. 1,51,416/- towards additional market value by an order dated 31-08-2000 and held that claimant is not entitled for any interest on the solatium and on the additional market value. Claimant having not satisfied with the market value fixed by the reference Court, preferred appeal to this Court for enhancement and this Court dismissed the appeal on 08-12-2010 by confirming the award of the reference Court. According to claimant, as the land Acquisition Officer has not deposited the award amount, after dismissal of the appeal, he filed a writ and only as per directions in the writ, a sum of Rs. 10,99,068/- was deposited on 16-10-2014 to the credit of O.P. No. 2/1993 and that the claimant was supplied a copy of the details of the deposit and on verification of the same, he noticed that interest on solatium and additional market value was not deposited and he approached his counsel and that he was informed that the reference Court has not granted interest on solatium and additional market value, he was advised that it was a mistake crept while adjudicating his appeal and that he has to seek for amendment of decree dated 08-12-2010. According to petitioner, this Court, while adjudicating appeal, has not considered the interest aspect on solatium and additional market value, it is a statutory benefit and he is entitled for the same as per the provisions of Land Acquisition Act. According to claimant, this Court has not taken into consideration his statutory entitlement while dismissing the appeal and that the decree has to be amended by adding payment of interest on solatium and additional market value.
Heard both sides.
Advocate for petitioner submitted that 4(1) notification was issued on 16-10-1980 and possession of the land was taken on 01-04-1984 and the Award is passed on 25-10-1991. He further submitted that on reference, civil Court enhanced market value from Rs. 11,000/- to Rs. 40,000/- per acre as per order dated 31-08-2000 and as per clause 6 of decree, claimant was not entitled for interest on solatium and additional market value. He submitted that both Government and claimant preferred appeal challenging the order of the reference Court and both the appeals are dismissed on 08-12-2010 and by that date, the Hon''ble Supreme Court clarified that claimant is entitled for interest on solatium and additional market value and this aspect was not brought to the notice of this Court at the time of hearing of the appeal, but still this being a statutory benefit, petitioner is entitled for interest on the solatium and additional market value and the decree has to be modified accordingly.
Learned Advocate for petitioner-claimant contended that a decree can be amended under Section 152 CPC when there is a accidental slip or omission and the facts of this case would squarely fall under the category of omission or accidental slip and that the claimant is entitled for the relief claimed. He submitted that even without appeal, the claimant is entitled for the statutory benefits and to support his arguments, he placed reliance on a decision of Hon''ble Supreme Court in Pralhad and Others Vs. State of Maharashtra and Another, (2010) 10 JT 428 : (2011) 1 RCR(Civil) 809 : (2010) 10 SCC 458 and has drawn our attention to the following Paras of the said decision:-
The basic issue before the High Court was whether in absence of an appeal or cross-objection from the claimants, is it permissible to grant additional benefits to the appellants as provided in Section 23(1-A) of the Amendment Act?
Keeping in mind the aforesaid declaration of law, this Court holds that in the instant case the acquisition proceeding commenced with notification under Section 4 which is dated 5-3-1983 and the award was passed on 1-3-1984. Therefore, the landowners who were affected by the instant acquisition proceedings were entitled to the benefit of the amending provision under Section 23(1-A) in view of the ratio in Paripoornan.
The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression order ought to have been made would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying the court may pass such further or other order as the case may require. This expression case would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
Learned Advocate further submitted that no party shall be prejudiced by an act of Court, is the principle as held by Supreme Court in Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and Others, AIR 2008 SC 225 : (2008) 1 CTC 161 : (2007) 12 JT 367 : (2007) 13 SCC 421 : (2007) 11 SCR 346 : (2007) AIRSCW 6662 and U.P.S.R.T.C. Vs. Imtiaz Hussain, AIR 2006 SC 649 : (2006) 108 FLR 950 : (2005) 10 JT 496 : (2006) 1 LLJ 714 : (2006) 1 SCC 380 : (2006) SCC(L&S) 246 : (2005) AIRSCW 6522 : (2005) 8 Supreme 488 .
Learned Advocate further submitted that omission or accidental slip can be corrected at any time either by Court on its own or on the application of any of the parties and to support his argument, he relied on a decision of Hon''ble Supreme Court in B. Shivananda Vs. Andhra Bank Ltd. and Another, (1994) 107 PLR 757 : (1994) 2 SCALE 738 : (1994) 4 SCC 368 : (1994) 3 SCR 160 . Learned counsel has drawn our attention to following Paras from this decision:-
The appellant contended that no interest can be granted since the judgment did not specify the liability relating to payment of future interest. The trial court allowed the application of the appellant and dismissed the application of the respondent-Bank. On revision filed by the Bank, the High Court, by its order dated 23-9-1989 allowed the revision of the Bank and dismissed the application of the appellant. Thus, this appeal by special leave.
Section 152 CPC, clearly gives power to the court to amend clerical or arithmetical mistakes in the judgment and decree or order or any errors arising therein from any accidental slip or omission. The same may, at any time, be corrected by the court either of its own motion or on the application of any of the parties to the suit. Therefore, it is not necessary that the aggrieved party should necessarily file an appeal or review for effecting correction of the judgment or decree or order. But in this case, as seen, that the claim for future interest at 16 1/2% was made in the suit itself which admittedly, is the contracted rate of interest. Therefore, the Bank is entitled to claim interest in terms of the contract at 16 1/2% from the date of lending till the date of filing of the suit. However, the court has discretion under Section 34 CPC to award interest. Admittedly, the loan was taken for construction of theatre. In other words, the loan was for a commercial transaction. In the facts and circumstances of this case, we consider it just and proper that the appellant should pay simple interest at the rate of 16 1/2% per annum on the principal amount claimed in this suit from the date of the decree till the date of realisation.
Learned counsel further submitted that to put an end to litigation, the Court can even permit to correct defect in the Court record and to support the same, he relied on a decision of Hon''ble Supreme Court in Pratibha Singh and Another Vs. Shanti Devi Prasad and Another, AIR 2003 SC 643 : (2002) 10 JT 302 : (2003) 2 SCC 330 and has drawn our attention to Para No. 17, which reads as follows:-
When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.
Learned Advocate further contended that failure to grant statutory benefit of interest on solatium and additional market value can be corrected under Section 152 C.P.C. To support his argument, he relied on a decision of Hon''ble Supreme Court in State of Rajasthan Vs. Nav Bharat Construction Co., AIR 2005 SC 2795 : (2005) 1 ARBLR 495 : (2005) 125 CompCas 1 : (2005) 3 JT 558 : (2005) 11 SCC 197 : (2005) 1 SCR 988 Supp : (2005) 2 UJ 861 : (2005) AIRSCW 1691 : (2005) 3 Supreme 141 .
Learned counsel further submitted that an inadvertent error emanating from non-adherence to rules of procedure prolongs the life of litigation and gives rise to avoidable complexities and that the same can be corrected by Section 152 CPC and to support this, he relied on a decision of Hon''ble Supreme Court in Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan and Others, AIR 2003 SC 351 : (2002) 9 JT 542 : (2003) 1 SCC 197 .
In answer to the submissions of the Advocate for petitioner, learned Government Pleader would submit that the application under Section 152 CPC is not maintainable and there is no clerical error or arithmetic mistake or accidental slip or omission and the remedy of the claimant is only to seek a review or prefer appeal, but not under Section 152 CPC. He further submitted that all the decisions referred to by the Advocate for petitioner have no application for the simple reason that the reference Court specifically refused interest on solatium and additional market value and the same is confirmed by this Court in the appeal and the relief claimed by the claimant in this application would amount to grant a relief which was specifically denied. He submitted that the application is misconceived and liable to be dismissed.
Now the point that would arise for our consideration in this application is whether there is any accidental slip or omission to be corrected by exercising the powers under Section 152 CPC?
Point:- Facts are not in dispute. The petitioner herein preferred A.S. No. 1884/2001 challenging the reference Court order and that appeal was dismissed on merits confirming the order of the reference Court. It is also not in dispute that reference Court specifically refused interest both on solatium and additional market value. Entire argument of the learned counsel for the petitioner is that the petitioner is entitled for interest on solatium and additional market value as per the decisions of Hon''ble Supreme Court in Sunder Vs. Union of India (UOI) and Gurpreet Singh Vs. Union of India (UOI), (2007) 3 CTC 170 : (2006) 10 SCALE 393 : (2006) 8 SCC 457 : (2006) 7 SCR 422 Supp . According to him, though these two decisions were not brought to the notice of this Court at the time of disposal of A.S. No. 1884/2001 as it is a statutory benefit, the Court is expected to grant the same and as it was not granted, it would amount to accidental slip or omission on the part of the Court and the same can be corrected under the provisions of Section 152 CPC. It may be relevant to read Section 152 CPC which reads as follows:-
Amendment of judgments, decrees or orders 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 of its own motion or on the application of any of the parties.
From a perusal of the above provision, it provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. Normally, after passing the judgment, decree or order, the Court becomes functus officio and not entitled to modify the terms of the judgment, decree or order, but Section 152 is an exception to the above general rule for correcting accidental slip or omissions or clerical mistakes or arithmetical mistakes. Section 152 CPC cannot be pressed into service to correct an omission which was intentional though it may appear erroneous. As seen from the record, the applicant herein challenged the reference Court order with regard to quantum and he no where challenged, finding refusing interest on solatium and additional market value. The purport of all the decisions relied on by the applicant is any inadvertent error not effecting merits of the case can be corrected under Section 152 CPC by the Court, which passed the decree or order. Any omission sought to be corrected which goes into the merits of the case is beyond the scope of Section 152 CPC. Keeping this in mind we now examine the case law with reference to power under Section 152 CPC.
In Pralhad and Others Vs. State of Maharashtra and Another, (2010) 10 JT 428 : (2011) 1 RCR(Civil) 809 : (2010) 10 SCC 458 , the issue before Supreme Court was not in respect of application of Section 152 CPC. In that case Supreme Court dealt with the power of Court under Order 41 Rule 33 C.P.C; In Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and Others, AIR 2008 SC 225 : (2008) 1 CTC 161 : (2007) 12 JT 367 : (2007) 13 SCC 421 : (2007) 11 SCR 346 : (2007) AIRSCW 6662 and U.P.S.R.T.C. Vs. Imtiaz Hussain, AIR 2006 SC 649 : (2006) 108 FLR 950 : (2005) 10 JT 496 : (2006) 1 LLJ 714 : (2006) 1 SCC 380 : (2006) SCC(L&S) 246 : (2005) AIRSCW 6522 : (2005) 8 Supreme 488 , Supreme Court held under Section 152 CPC it is not permissible to go in to disputed questions and omissions sought to be corrected which goes in to the merits of the case, is beyond the scope of Section 152 C.P.C; In B. Shivananda Vs. Andhra Bank Ltd. and Another, (1994) 107 PLR 757 : (1994) 2 SCALE 738 : (1994) 4 SCC 368 : (1994) 3 SCR 160 , future interest was not granted. Both parties filed applications for amendment. Bankers application for grant of future interest was allowed. While confirming grant of interest, Supreme Court observed that it should be confined to that case only in view of peculiar facts of that case; In Pratibha Singh and Another Vs. Shanti Devi Prasad and Another, AIR 2003 SC 643 : (2002) 10 JT 302 : (2003) 2 SCC 330 , Supreme Court held that inadvertent error not effecting merits of the case may be corrected under Section 152 C.P.C. by the Court which passed decree; In State of Rajasthan Vs. Nav Bharat Construction Co., AIR 2005 SC 2795 : (2005) 1 ARBLR 495 : (2005) 125 CompCas 1 : (2005) 3 JT 558 : (2005) 11 SCC 197 : (2005) 1 SCR 988 Supp : (2005) 2 UJ 861 : (2005) AIRSCW 1691 : (2005) 3 Supreme 141 , dismissal of petition under Section 152 CPC was confirmed. In that case petition was filed for enhancement of rate of interest by the contractor invoking Sections 152 C.P.C. That petition was dismissed and Supreme Court upheld the same; In Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan and Others, AIR 2003 SC 351 : (2002) 9 JT 542 : (2003) 1 SCC 197 , Supreme Court held only intention expressed in the judgment must formulate into relief. In that case as that aspect was missed party, was permitted to invoke Section 152 C.P.C.
Hon''ble Supreme Court in Bai Shakriben (dead) by Natwar Melsingh and Others Vs. Special Land Acquisition Officer and Another, (1996) 5 AD 119 : AIR 1996 SC 3323 : (1996) 5 JT 597 : (1996) 4 SCALE 636 : (1996) 4 SCC 533 : (1996) 2 SCR 369 Supp held as follows:-
The omission to award additional amounts under Section 23(1-A), enhanced interest under Section 28 and solatium under Section 23(2) are not clerical or arithmetical mistake crept in the award passed by the Reference Court but amounts to non-award. Under those circumstances, the Reference Court was clearly in error in entertaining the application for amendment of the decree and is devoid of power and jurisdiction to award the amounts under Sections 23(2), 23(1-A) and 28 of the Act.
In Union of India Vs. Swaran Singh and others, AIR 1997 SC 462 : (1996) 7 JT 431 : (1996) 5 SCALE 5 : (1996) 5 SCC 501 : (1996) 3 SCR 205 Supp : (1996) 2 UJ 785 , Hon''ble Supreme Court held as under:-
The question then is whether the High Court has power to entertain independent applications under Sections 151 and 152 and enhance solatium and interest as amended under Act 68 of 1984. This controversy is no longer res integra. In State of Punjab and Another Vs. Jagir Singh and Others, (1995) 9 JT 1 : (1995) 6 SCALE 314 : (1995) 4 SCC 626 Supp : (1995) 4 SCR 552 Supp : (1991) 2 SCR 790 and also in a catena of decisions following thereafter in Union of India (UOI) and Others Vs. Pratap Kaur (Smt) (Dead) through Lrs. and Another, (1995) 2 JT 569 : (1995) 110 PLR 638 : (1995) 2 SCALE 118 : (1995) 3 SCC 263 : (1995) 1 SCR 670 ; State of Maharashtra Vs. Maharau Srawan Hatkar, (1995) 2 JT 583 : (1995) 2 SCALE 100 : (1995) 3 SCC 316 : (1995) 2 SCR 224 ; State of Punjab and Another Vs. Babu Singh and Others, (1995) 3 JT 37 : (1995) 110 PLR 292 : (1995) 2 SCALE 180 : (1995) 2 SCC 406 Supp : (1995) 2 SCR 374 ; Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., AIR 1989 SC 1933 : (1989) 66 CompCas 466 : (1989) 178 ITR 548 : (1989) 2 JT 427 : (1989) 1 SCALE 1337 : (1989) 2 SCC 754 : (1989) 3 SCR 316 : (1989) 74 STC 313 and K.S. Paripoornan Vs. State of Kerala and Others, AIR 1995 SC 1012 : (1994) 6 JT 182 : (1994) 4 SCALE 192 : (1994) 5 SCC 593 : (1994) 3 SCR 405 Supp , this Court has held that the Reference Court or the High Court has no power or jurisdiction to entertain any applications under Sections 151 and 152 to correct any decree which has become final or to independently pass an award enhancing the solatium and interest as amended by Act 68 of 1984.
In Bijay Kumar Saraogi Vs. State of Jharkhand, AIR 2005 SC 2435 : (2005) 11 JT 187 : (2005) 7 SCC 748 , Hon''ble Supreme Court held that Section 152 CPC cannot be invoked for claiming a substantial relief which was not granted under the decree, or as a pretext to get the order which has attained finality, reviewed.
In State of Punjab Vs. Darshan Singh, AIR 2003 SC 4179 : (2003) 4 CTC 442 : (2005) 11 JT 285 : (2003) 9 SCALE 35 : (2004) 1 SCC 328 : (2003) 4 SCR 1042 Supp : (2004) 1 UJ 377 : (2003) AIRSCW 5488 : (2003) 7 Supreme 474 , Hon''ble Supreme Court while dealing with the powers of the Court under Sections 151 & 152 of Code of Civil Procedure held no court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order.
In Bai Shakriben (dead) by Natwar Melsingh and Others Vs. Special Land Acquisition Officer and Another, (1996) 5 AD 119 : AIR 1996 SC 3323 : (1996) 5 JT 597 : (1996) 4 SCALE 636 : (1996) 4 SCC 533 : (1996) 2 SCR 369 Supp , Hon''ble Supreme Court clearly indicated that omission to award additional amount under Section 23(1-A) enhanced interest under Section 28 and solatium under Section 23(2) are not clerical or arithmetical mistakes and the Court has no power or jurisdiction to award those amounts under Section 152 of CPC.
In State of Punjab Vs. Darshan Singh, AIR 2003 SC 4179 : (2003) 4 CTC 442 : (2005) 11 JT 285 : (2003) 9 SCALE 35 : (2004) 1 SCC 328 : (2003) 4 SCR 1042 Supp : (2004) 1 UJ 377 : (2003) AIRSCW 5488 : (2003) 7 Supreme 474 , Hon''ble Supreme Court noticed that the courts below have been liberally construing and applying the provisions under Sections 151 & 152 CPC even after passing effective orders in the lis pending before them and cautioned that the Court cannot modify, alter or add any terms to its original judgment, decree or order by exercising powers under Sections 151 & 152 CPC.
In Jayalakshmi Coelho Vs. Oswald Joseph Coelho, AIR 2001 SC 1084 : (2001) 1 DMC 440 : (2001) 3 JT 356 : (2001) 2 SCALE 277 : (2001) 4 SCC 181 : (2001) 2 SCR 207 : (2001) 2 UJ 952 : (2001) AIRSCW 1013 : (2001) 2 Supreme 209 , Hon''ble Supreme Court held that 152 CPC should not be for reconsideration of merits of the matter and it observed as follows:-
As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the court to rectify such mistake. But before exercise of such power the court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise, that is to say, while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be reconsideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought the court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of the courts inherent powers as contained under Section 152 CPC. It is to be confined to something initially intended but left out or added against such intention.
In this case, reference Court specifically refused interest on solatium and additional market value and the same is confirmed by this Court in the appeal, therefore, it cannot be treated as an accidental slip or omission. With regard to benefit extended by the Hon''ble Supreme Court in Gurpreet Singh Vs. Union of India (UOI), (2007) 3 CTC 170 : (2006) 10 SCALE 393 : (2006) 8 SCC 457 : (2006) 7 SCR 422 Supp and Sunder Vs. Union of India (UOI) , as rightly pointed out by learned Government Pleader the remedy of applicant is not under Section 152 CPC and his remedy is otherwise.
The cumulative effect of all the above referred decisions is that Section 152 CPC has to be applied only when the intention of the Court is not translated into a decree or order, due to accidental slip or omission, but not to reconsider the matter and grant a relief which the Court has not granted originally. The relief claimed by applicant in this petition would amount to adding certain clauses to the judgment in A.S. No. 1884/2001. Therefore, considering the facts of the case with reference to the legal position indicated above, we are of the considered view that there is no accidental slip or omission in the judgment dated 18-12-2010 to be corrected under Section 152 CPC. Accordingly, point is answered against the petitioner.
For the reasons stated above, we are of the view that application is devoid of merits and liable to be dismissed. In the result, petition is dismissed. No costs.