Bimal Chandra Mitra vs Nemai Palit

Narayan Chandra Sil, J.—This is to consider an application being G.A. No. 4030 of 2003 filed by the Plaintiff/decree-holder. In the instant case Mr. Bimal Chandra Mitra by the consent of the parties was appointed Receiver in suit No. 169 of 1983 and in respect of suit premises No. 24/A Balaram Ghosh Street, Calcutta. Thereafter with the expiry of the lease period of the suit property the learned Receiver filed a suit being No. 616 of 1990 which was heard in length and decreed by this Court in favour of the Plaintiff. In course of hearing Mr. Barin Ghosh, J. was pleased to allow the amendment petition and although the necessary amendments had been effected in the body of the plaint as also in prayer (a) thereof in respect of the correct address of the suit premises i.e. Premises No. 24A, Balaram Ghosh Street in place of premises No. 24/1A, Balaram Ghosh Street, Calcutta which was erroneously entered in the original plaint, unfortunately through oversight the said corrections were not incorporated in the concise statement and schedule of the suit property. This has caused in convenience for the decree department in drawing up decree in the suit. It is also stated that after the suit was decreed the Defendant No. 1 had not taken any steps to challenge the judgment of the trial Court even after the expiry of the statutory period of appeal nor did he vacate the suit premises within the period stipulated in the Order. In such circumstances, it is prayed that the mistake in the concise statement and the schedule of the property annexed to the plaint be condoned and be amended by deleting the numerical figure ''1'' after premises No. ''24'' and to read the suit premises as 24/A, Balaram Ghosh Street, Calcutta in those two places i.e. both in concise statement and in the schedule of the property annexed to the plaint.

The petition has been seriously contested by the Defendant No. 1 by filing affidavit-in-opposition in which it is inter alia stated that at the time of trial the Plaintiff in examination-in-chief answered to question No. 22 as below:

The premises No. 24A, Balaram Ghosh Street is the suit premises and it is two storied residential house. There was a vacant plot of land in the back portion of it. The vacant portion was about 3� kathas and that portion leased out to the Defendant. The portion forms a part of 24A, Balaram Ghosh Street.

It is alleged that the Plaintiff inspite of adequate opportunities by negligence and laches had proceeded with the above suit wholly inconsistent with the facts and documents relied on.

In such circumstances, it is pertinent to determine whether the amendment now sought for by the Plaintiff after the disposal of the suit is permissible or not.

The judgment was disposed of by me on July 9, 2003. The operative portion of the judgment is as follows:

...that the suit is decreed with costs on contest against the Defendant No. 1 and ex parte without cost against the Defendant No. 2.

The Plaintiff do get a decree for vacant and peaceful possession in respect of the suit property and the Defendant No. 1 was directed to deliver the vacant and peaceful possession of the suit property to the Plaintiff within three months from this date after removing the structure thereon at his own costs.

The Plaintiff do get a decree of mesne profit at the rate of 110/- per month from 1st December, 1989 till recovery of vacant and peaceful possession of the suit property.

The Learned Counsels for both the parties has referred to a number of case laws.

Mr. P.K. Das, the learned Senior Counsel appearing for the Plaintiff has referred to the ratio decided in the case of Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan and Others, . In dealing with the provisions of Section 152, Order 20, Rules 6, 6A, 5 and 1, Order 41 Rule 31 and Order 7 Rule 1 of the CPC the Hon''ble Apex Court held as under:

Order 20 CPC requires a judgment to contain all the issues and findings or decision with the reasons therefor. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. The very obligations cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and complexities arising at the stage of execution.

... ... ... ...

The Plaintiff, being dominus litus, enjoys a free hand in couching the relief clause in the manner he pleases and it is for the court, decreeing the suit, to examine the reliefs and then construct the operative part of the judgment in such manner as to bring the reliefs granted in conformity with the findings arrived at on different issues and also the admitted facts. The trial court merely observing in the operative part of the judgment that the suit is decreed on an appellate court disposing of an appeal against dismissal of suit observing the appeal is allowed and then staying short at that, without specifying the reliefs to which the successful party has been found entitled tantamounts to a failure on the part of the author of the judgment to discharge obligation cast on the Judge by the provisions of the Code of Civil Procedure.

In the case at hand, a perusal of the reliefs prayed for in the plaint shows that the reliefs are not very happily worded. There are some reliefs which may not be necessary or may be uncalled for, though prayed for. The reliefs may have been considered capable of being recast or redefined so as to be precise and specific. May be, that the Court was inclined to grant some other relief so as to effectually adjudicate upon the controversy and bring it to an end. Nothing is spelled out from the appellate judgment. The trial court, on whom the obligation was cast by the second appellate judgment to draw up a decree, was also as its order shows, not very clear in its mind and thought it safe to proceed on an assumption that all the reliefs sought for in the plaint were allowed to the Plaintiffs. The learned Single Judge allowing the second appeal, should have clearly and precisely stated the extent and manner of reliefs to which the Plaintiffs were found to be entitled in his view of the findings arrived at during the course of the appellate judgment. The parties, the draftsman of the decree and the executing court cannot be left guessing what was transpiring in the mind of the Judge decreeing e suit or allowing the appeal without further placing on record the reliefs to which the Plaintiffs are held entitled in the opinion of the Judge.

In these circumstances the successful party has no other option but to have recourse to Section 152 CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the court either on its own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the Plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the court by couching the reliefs to which the Plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the court to vary its judgment so as to give effect to its meaning and intention.

The order of the trial court drawing up the decree is set aside. The parties are allowed liberty of moving the High Court u/s 152 CPC seeking appropriate rectification in the judgment of the High Court so as to clearly specify the extent and manner of reliefs to which in the opinion of the High Court the successful party was found entitled consistently with the intention expressed in the judgment.

Mr. Das has then referred to the ratio decided in the case of Pratibha Singh and Anr. v. Shanti Devi Prasad and Anr. (2002) 2 S.C.C. 330. In the said case the Plaintiff decree-holder filed a suit for specific performance of the agreement for sale of a piece of land which was part of a large area in a village. In the plaint the suit property was described by khata numbers, plot numbers, sub-plot numbers, area, the village and the boundaries. But map of the suit land was not filed with the plaint. Having regard to the revenue survey map of the entire area and the maps annexed with the registered sale deeds of the Defendant judgment-debtors it appears that the sub-plot numbers were not capable of being identified merely by the boundaries nor by numbers as the sub-plot numbers did not appear in records of settlement or survey. That being the position it was held that the Plaintiff ought to have filed the map of the suit property annexed with the plaint and if the Plaintiffs committed as error the Defendants should have objected to it promptly. The default or carelessness of the parties, however, does not absolve the trial court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the Plaintiffs and should have insisted on a map of the immovable property forming the subject-matter of the suit being filed. It was also held by the Hon''ble Apex Court that 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 of the CPC is capable of being cured. The Hon''ble Apex Court observed, ''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 u/s 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 Code of Civil Procedure. 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.

Mr. Das has also referred to the ratio decided in the case of L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, . It was held in that case that where the decreetal order drawn in the High Court as a result of inadvertence and through error introduced the words ''mesne profits'' instead of the words ''net profits'', the error can be corrected by the High Court under Sections 151 and 152 of the CPC even though the appeals from the decree may have been admitted in the Supreme Court before the date of correction.

Mr. Das has also referred to the decision made in the case of Dilip Kumar Chatterjee v. Narayandas Mukherjee and Ors. 1993 (2) C.L.T. 472. In the said case the mistake relating to identity (the number) of the suit premises was discovered by the decree-holder at a late state of execution. There was, however, ample evidence establishing identity and ownership of the suit premises. The executrix allowed the application u/s 152 of the CPC allowing amendment of the schedule of the plaint, the judgment and the decree. In the revisional application the Order was under challenge before the High Court. It was observed by this High Court that six witnesses on behalf of the Plaintiffs and two witnesses on behalf of the Defendants deposed about the identity of the suit premises and existence of a school and of ownership of the premises by the Plaintiff. In the schedule to the plaint there is a misdescription of the municipal holding number which resulted in mistake in the judgment and the decree. The mistake was discovered at the stage of delivery of possession. On the basis of the materials on record it was held by the High Court that the mistake was a misdescription of the suit property but not a mistake in identity of the suit premises.

Mr. Das has also referred to the ratio decided in the case of Rajdeo Ram v. Gita Rani Sarkar 2001 (3) C.L.T. 101. It was held in that case that though in the plaint separately no schedule was mentioned but suit premises was properly described which was capable to be identified from para. 1 of the plaint, it was held that the amendment sought for by incorporation of schedule to the suit premises and the decree is squarely admissible.

Mr. Das has also referred to the Division Bench judgment of our Court in respect of Kamala Bala Garai v. Samar Serial In the said case the Plaintiff filed an ejectment suit against the heirs of tenant and it was decreed whereby the heirs of the tenant amicably gave up possession of the premises in favour of the Plaintiff. The O.P. Samar Sen, grand son of the original tenant was inducted on February 16, 1972 as a tenant. The Plaintiff thereafter filed another ejectment suit against Samar Sen and got the decree. The O.P., Samar Sen filed several objections in vague in the execution case. The Plaintiff in execution of the ejectment decree failed to obtain possession as the suit property was not identifiable and in such circumstances, the Plaintiff sought to amend the decree u/s 152 of the Code. It was held by the Division Bench of this Court that the tenant being in occupation of the disputed premises knew best what the property was about and it being not a case of mistaken identity of property but misdescription of the property, the decree can be amended even in execution case.

Mr. Das, the learned Senior Counsel appearing for the Petitioner has also referred to the ratio decided in the case of Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, in which the Special Bench of the Supreme Court held while interpreting the provisions of Sections 152 and 151 of the CPC that the errors arising from accidental slip can be corrected subsequently not only in decree drawn up by the ministerial officer but even in the judgment pronounced and signed by the Court. It was further held in that case that it is the settled principle 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.

Mr. D.P. Bhuttacharjee, the learned Senior Counsel appearing for the Defendant/judgment-debtor No. 1 submits that the case laws referred to by the Learned Counsel for the Petitioner/Plaintiff decree-holder are all in respect of the mistakes of the Court and not of the Plaintiff. However, Mr. Bhattacharjee has referred to the ratio decided in the case of Banarsi Das Vs. Seth Kanshi Ram and Others, . The Special Bench of the Hon''ble Apex Court held in that case that an admission in so far as facts are concerned would bind the maker of the admission but not in so far as it relates to a question of law. Mr. Bhattacharjee from this judgment tries to impress upon me that the Petitioner has admitted their mistake in their petition and in such situation the remedy lies only in preferring an appeal or revision. But I am unable to accept the contention of Mr. Bhattacharjee for the reason that such mistake is not only of the Plaintiff but also of the Court. I shall discuss this point subsequently.

Mr. Bhattacharjee has then referred to the ratio decided in the case of State of Maharashtra v. Abdulla Alisaheb Kazi (2003) 9 I.L.D. 129. It is held in that case as below:

The powers bestowed upon the Civil Courts u/s 152 cannot be exercised to correct omissions, however erroneous, which are intentional either in the sense that the Court meant to omit which was omitted or because they did not arise for consideration or were not to be required to be considered in the matter and therefore, omitted. An error of the Court which is not an accidental slip or omission cannot be remedied by taking recourse to the provisions of law u/s 152.

Mr. Bhattacharjee has then referred to the ratio decided in the case of Central Bank of India v. Ashoke Kumar Bose 1983 (1) C.L.J. 406. It was a mortgage suit decreed ex parte. The Court omitted to allow interest under Order 34 Rule 11 of the CPC and the decree was drawn accordingly. An application was made by the Plaintiff/decree-holder to amend the decree u/s 151 or/and u/s 152 of the Code to incorporate the interest in the decree. It was held by the Division Bench of our High Court that in view of the omission of the Court to decree the claim of interest, it must be assumed that the Court had refused to grant interest and as such the provision of Section 151 of the Code was not applicable as the order was an appealable one. It was further held that the decree drawn up being in accordance with the judgment, the error is not an accidental and as such Section 152 of the Code was not applicable.

Mr. Bhattacharjee has also referred to the ratio decided in the case of Mehta Suraya and I.P.M. Industries Limited and Others Vs. United Investment Corporation, In the said case the suit was filed for recovery of possession against the lessee of the suit land. A judgment and decree were passed upon admission and it was signed by the Court. An application was filed thereafter for amendment of decree, the plaint and application for judgment upon admission so as to include building constructed upon suit land which was sublet by the lessee. Such application was allowed. In such circumstances, it was held by the learned Single Judge of this Court that the decree as amended is inexecutable.

Mr. Bhattacharjee has then referred to the ratio decided in the case of Jayalakshmi Coelho Vs. Oswald Joseph Coelho, . In the said case the parties moved a petition for divorce by mutual consent u/s 28 of the Special Marriage Act, 1954. In the petition they incorporated by reference a memo of agreement executed earlier regarding inter alia a flat which they had jointly purchased in the Appellant wife''s name. Under the agreement the wife was to relinquish her right, title and interest in favour of the Respondent husband, after payment by him to her of Rs. 1,60,000/- within four months of the execution of the agreement. But in their petition the parties sought only the relief of divorce. The Family Court passed a consent decree of divorce. Thereafter the husband filed an application u/s 152 of the Code seeking a mandatory injunction against the wife directing her inter alia to transfer the flat in his name. The Appellant opposed the application and filed an affidavit-in-reply which made clear that there were differences between the parties and that payment had not actually been made. The Family Court allowed the application and modified the decree incorporating in it eleven clauses of the memo of agreement. The wife''s writ petition and LPA against that order of the Family Court were both dismissed by the High Court. In such circumstances, it was held as below:

In terms of Section 152 Code of Civil Procedure, any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to a mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice.

Mr. Bhattacharjee has then referred to the decision made in the case of Dwaraka Das v. State of M.P. and Anr. (1993) 3 S.C.C. 500. In the said case it was held that the exercise of power u/s 152 of the Code contemplates the correction of mistake by the Court of its ministerial actions and does not contemplate passing of effective judicial order after the judgment, decree or order. After the passing of the judgment, decree or order, the Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees or orders passed earlier. The corrections contemplated are correcting of only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The Hon''ble Apex Court further held that the omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 of the Code for which the proper remedy for the aggrieved party is to file an appeal or a review application.

It appears from the judgment passed by this Court that as many as 9 issues were framed and out of that issue np.6 reads as under:

Is the Plaintiff entitled to get a decree for possession of the suit property covered by the lease?

The said issue was decided in favour of the Plaintiff/Petitioner. Now the question posed before us is as to whether the suit property covered by the lease was properly identifiable from the materials on record and also from the judgment delivered by this Court. It is admitted position on record that the plaint was earlier amended on the prayer of the Plaintiff and in a new paragraph i.e. in para. 26 of the plaint the description of the suit property was amended as 24/A Balaram Ghosh Street, Calcutta instead and in place of 24/1A by the Order dated December 7, 1995. It is specifically mentioned in the said para. 26 as under:

Although such amendment was directed to be made in the Original plaint and the said order of amendment through inadvertance has not been carried out and accordingly the correct premises number of the suit property in Clause (a) of the reliefs claimed for be read as corrected in terms of the said order as No. 24/A instead of number 24/1A including the said 30 sq.ft. of the extra area as mentioned in paragraph 3 of the plaint.

In para. 3 of the original plaint the said 30 sq.ft. extra land finds mention. The situation in this case is thus that although the body of the plaint was amended and the description of the suit land after such amendment was incorporated, the description of the suit land in the concise statement and in the prayer portion of the suit including the schedule of the suit property annexed with the plaint was not amended. At the time of passing the judgment the Court mentioned the suit property to be decreed in favour of the Plaintiff. Neither of the parties raised any question at the time of trial as regards the misdescription of the suit property or the inconvenience to identify the suit property itself. On the other hand, we may recall the affidavit-in-opposition where the Defendant No. 1 quoted the answer of the Plaintiff in examination-in-chief to question No. 22 wherein it was absolutely unambiguous that the Plaintiff described the suit property as 24A Balaram Ghosh Street, Calcutta including the vacant portion measuring about 3� cottahs leased out to the Defendant No. 1. From all this the only ineluctable conclusion is that there was absolutely no confusion either in the mind of the parties to the suit or in the mind of the Court to identify the suit property but the reason of imbroglio appeared to the decree department of the Court at the time of drawing up the decree is only because the concise statement to the suit and the schedule property were not amended though the appropriate amendment was effected earlier in the body of the plaint. It may be pointed out that the said amendment order was not challenged by the Defendant No. 1.

Now, I shall take up the case laws referred to by the Learned Counsel of the Defendant No. 1.

The facts of all cases referred to by the Learned Counsel for the Defendant No. 1 are different pari materia from the facts of the instant case for consideration before us. Thus, in the case of Banarsi Das Supra the Plaintiff alleged in para. 10 of the plaint that the partnership being at will stood dissolved and in the Written Statement Banarsi Das admitted this fact at not less than three places. This is not the position in instant case rather the Defendant No. 1 did not raise any question at any point of time as regards identity of the suit property. In the case of State of Maharashtra Supra the High Court at Bombay was conspicuous in the decision that the matter was not for consideration or were not to be required to be considered and in such circumstances the same was omitted. In the instant case the matter was very much for consideration and it was properly considered throughout the judgment. In the case of Central Bank of India Supra our Division Bench held that in the absence of any interest to be awarded by the Court in a mortgage suit it is presumed that the Court had refused to grant such interest. But in the instant case if any presumption is required to be drawn which is perhaps not at all, is always in favour of the Plaintiff. In the case of Mehta Suraya Supra a consent decree was passed in which the building constructed upon the suit land was not incorporated and subsequently the incorporation of the same was sought for. The same is not the situation with us in the instant case. For the same reason the facts in the case of Jayalakshmi Coelho Supra have no matching at all with the instant case. In the said case the transfer of the building was not incorporated in the compromise petition and subsequently it was unearthed that the condition for transfer of the building by the wife in favour of her husband on payment of Rs. 1,60,000/- by the husband to the wife was not met. It is very much clear in the case of Dwarka Das Supra that the Hon''ble Apex Court did not allow the correction as the same goes to the merit of the case.

The facts of the instant case may fit the facts of Kamala Bala Garai Supra. It may be pointed out that in the case of Dilip Kumar Chatterjee Supra as referred to by the learned Senior Counsel for the Petitioner the mistake was discovered at the stage of delivery of possession and the said mistake was not in connection with the identity of the land but for misdescription of the suit property.

Section 151 of the CPC deals with the inherent power of the Court. The said power is to be invoked by the Court for the ends of justice or to prevent abuse of the process of the Court. Section 152 of the Code deals with the power of the Court relating to amendment of judgments, decrees or orders and it reads as under:

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.

Thus, apparently the power of the Court u/s 152 is to be exercised in case of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission and such power may be exercised and correction may be made at any time by the Court either of its own motion or on the application of any of the parties. Here, Mr. Bhattacharjee, the Learned Counsel for the O.P./judgment-debtor submitted that there is no such mistake as enumerated in the provisions of Section 152 of the Code on the part of the Court.

The answer to the argument of Mr. Bhattacharjee may be had from the several judgments referred to by the learned Senior Counsel appearing for the Petitioner decree-holder. The Court has not got ample power u/s 152 read with Section 151 at any stage to make its own judgment effective and meaningful. Decisions made in the cases of Lakshmi Ram Bhuyan Supra and Samarendra Nath Sinha Supra. In the instant case the debate has been made as regards the identification of the suit property. We have already stated in the foregoing lines that this is not a case where the suit property was not identifiable and what had actually happened is that although some portion of the plaint was amended incorporating the correct description of the suit property, misdescription of the suit property in the concise statement and in the prayer portion of the plaint remained unamended.

In the instant case there is absolutely no scope to affect the merit of the suit if the amendment as sought for in the petition under consideration is allowed. It is also very much clear that the omission either on the part of the Plaintiff/Petitioner or on the part of the Court is absolutely unintentional. It is the view of the Hon''ble Apex Court (decision made in the case of Lakshmi Ram Bhuyan Supra and Pratibha Singh and Anr. Supra that it is always the obligation of the Court to reflect the intention of the decree-holder in the operative portion of the Order passing the decree and the trial Court is not absolved of the obligation for such default or carelessness of the parties.

True, it is the mandatory provisions of the statute that whenever the plaint is amended the Defendant is entitled to get the opportunity to canvass their case against such amendment in the form of submitting additional written statement but the facts of the case before us suggest that here if the amendments as sought for is allowed that will neither affect the merits of the case nor will it make out any new case for the Plaintiff and the effect of such amendment is the consistent case of both the-parties which has consistently been dealt with throughout the proceeding. That being the position the amendment sought for in the application being G.A. No. 4030 of 2003 is liable to be allowed. It is, therefore, ordered that the amendment prayed for in prayer (a) of para. 18 of the application being G.A. No. 4030 of 2003 be allowed. The department is directed to carry out such amendment forthwith and thereafter the decree be drawn expeditiously.

There shall be no order as to costs.