Harindar Prasad Sahani vs Chanchal Ghose and Others

Amitava Roy, J

The order impugned an the present Civil Revision is one passed by the learned Trial Court rejecting the application u/s 152 of the C.P.C. read with Section 151 of the Code filed by the present petitioner for correcting the order dated 19.12.1997 decreeing the Title Suit No. 9/96 ex parte against the Opposite Parties 1 and 2.

I have heard Mr. N. Choudhury, learned counsel for the petitioner and Mr. G.N. Sahewalla, learned Senior Counsel assisted by Ms. S. Sanapati for the Opposite Parties 1 and 2.

The factual background of the case in short is that the present petitioner along with others filed a suit against the present opposite parties 1 and 2 as defendants and others as Proforma defendants in the Court of the learned Munsiff No. 2, Jorhat praying for a decree for declaration of their right, title and interest in the suit land and also for recovery of khas possession thereof. As the defendants did not contest the suit it proceeded exparte by the learned Trial Court after examining the petitioner-plaintiff No. 1 decreed the suit declaring the right, title and interest of the plaintiffs in the suit land. The conclusion recorded by the learned Trial Court and the operative portion of the order are quoted hereinbelow :

"From the above discussion it seems that plaintiffs could able to prove their case prima facie and become entitled to a decree as prayed, ORDER

The suit is decreed ex parte by declaring the right, title and interest of the plaintiffs over the suit land. However, the defendants are not allowed to pay any cost and compensation and other relief/relives as prayed."

In terms of the above orders the decree was accordingly prepared, the operative portion where of is extracted herein bellow :

"The suit is decreed ex parte by declaring the right, title and interest of the plaintiffs over the suit land. However, the defendants are not allowed to pay any cost and compensation and other reliefs/relives as prayed."

As the learned Trial Court omitted to decree the relief of recovery of knas possession of the suit land, the plaintiffs filed an application u/s 152 of CPC, read with Section 151 CPC thereof contending that while decreeing the suit the learned Trial Court had inadvertently omitted to pass the decree for recovery of khas possession and, therefore, it was a fit case where the omission ought to be supplied both in the judgment as well as in the decree by incorporating the relief for recovery of khas and vacant possession of the suit land. This application was also disposed of uncontested. The learned Trial court by the impugned order dated 30.4.98 held that the omission to mention anything about recovery of khas possession by the judgment and decree did not amount to a clerical or arithmetical error or an error arising out of an accidental slip or omission. On a reading of the judgment and decree, the learned Trial court was of the opinion that the relief for recovery of khas possession had been denied and therefore it was not a case for invoking the power u/s 152 of the CPC.

Mr. N. Choudhury, learned counsel for the petitioner has strenuously argued that on a reading of the ex parte judgment and order, it is patently clear that the learned Trial Court was satisfied that the plaintiffs had been able to prove their case and, therefore, were entitled to the decree as prayed in the suit and, therefore, the omission to grant the relief for recovery of khas possession was an accidental one. According to the learned counsel, the learned Trial Court had intended to grant the relief for recovery of khas possession as well but due to accidental slip the same was not recorded in the judgment and decree. The learned counsel argued that considering the reliefs as prayed for and the finding recorded by the learned Trial court that the plaintiffs are entitled to decree as prayed for, the decree for right, title and interest without one for recovery of possession would be nothing but a paper decree, which could not have been intended by the learned Trial court.

He has forcefully argued that in case where the court intends to grant a relief but due to accidental slip or omission the same is not recorded in a judgment or decree, the omission can be supplied in exercise of power u/s 152 of the CPC in order to make the reliefs effective and meaningful. It is the intention of the court which is decisive in such matters and technical considerations should not be permitted to override the same. In support of his submissions, learned counsel has placed reliance on two decisions of the Apex Court in Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan and Others, and in Pratibha Singh and Another Vs. Shanti Devi Prasad and Another,

Contra is the submission of Mr. G.N. Sahewalla, learned senior counsel for the respondents. He has argued that though there may not be any wrangle on the proposition of law that an arithmetical or clerical mistake or an accidental slip or omission can be taken care of u/s 152 of the CPC, the said provision of law does not empower a Court to rewrite a judgment or decide any issue afresh in the garb of making such corrections or supplying any omission. According to the learned senior counsel, it is apparent from the ex parte judgment and decree that the learned Trial court did not intend to grant the relief of recovery of khas possession of the suit land and therefore it is clearly not a case of unintentional omission as sought to be represented by the petitioner. The learned senior counsel has relied on a decision of the Apex Court in Dwaraka Das Vs. State of Madhya Pradesh and Another, to highlight the reach and content of Section 152 of the CPC.

Sitting in revision this court is primarily concerned to examine as to whether the impugned order suffers from any error of jurisdiction. It has to be remembered that the instant revision petition is not against the ex parte judgment or decree and this court is not exercising its appellate jurisdiction to examine the legality and validity thereof. The attention, therefore, has to be confined strictly to the order rejecting the prayer of the petitioner-plaintiff to correct or rectify the ex parte judgment and decree by incorporating therein the relief for recovery of khas possession of the suit land. The Apex Court in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and Ors. (supra) was seized with the situation where a suit in which a number of reliefs as prayed for was dismissed. The learned Lower Appellate court had upheld the dismissal. The Second Appeal preferred before this court was allowed. The operative part of the judgment however, did not specify the reliefs granted. The learned Trial Court thereafter issued directions to amend and correct the decree proceeding on the basis that this court had granted all reliefs as claimed by the plaintiffs. The judgment debtor unsuccessfully challenged the order of the learned Trial Court in revision before this court. The matter was then taken to the Apex Court. In the said factual backdrop, the Apex Court while emphasising upon the obligation of the learned Trial Court as well as the learned Appellate court to precisely and specifically set out the reliefs granted in a decree, observed that it is for the Court, decreeing the suit, to examine the reliefs and then construct the operative part of the judgment in such a manner so as to bring the reliefs granted in conformity with the findings arrived at on different issues and also the admitted facts. A mere observation in the operative part of the judgment that the suit was decreed or the appeal was allowed without specifying the reliefs to which the successful party was entitled to amounts to failure on the part of the Court to discharge its obligation cast by the provisions of the Code of Civil Procedure, it observed. The Apex Court held that a reading of the judgment of this court showed that in its opinion the plaintiffs were found entitled to succeed in the suit and there was an accidental slip or omission in manifesting the intention of the court by specifying the reliefs to which the plaintiffs were entitled. It held that Section 152 of the CPC enables the court to vary its judgment so as to give effect to its meaning and intention. The Apex Court, however, did not approve the preparation of the decree by the learned Trial Court and was of the view that the same should have been drawn up by this Court, The order of the learned Trial court drawing up the decree was set aside and the parties were granted liberty to move this Court u/s 152 of the CPC seeking appropriate rectification of the judgment of this court so as to clearly specify the extent and manner of reliefs to which, in the opinion of this Court, the successful parties were entitled, consistent with the intentions expressed in the judgment.

The learned counsel for the plaintiffs relied on Pratibha Singh and Anr. v. Shanti Devi Prasad and Anr. (supra) to underline the legal proposition that a successful plaintiff should not be deprived of the fruits of the decree and depending on the facts and circumstances of each case, resort can be made to Section 152 or Section 147 of the CPC and any inadvertent error not affecting the merits of the case may be corrected u/s 152 of the CPC by the court which had passed the decree by supplying the omission.

The quintessence of the judicial dicta as noticed hereinabove is that a Court while deciding a suit for on appeal should clearly specify the reliefs granted to the successful party and in case in doing so there is any omission, though its intention on a reading of the judgment is otherwise clear, it would be permissible for the court, acting u/s 152 of the CPC to supply the omission in order to make the judgment and order" effective and meaningful in law. In case of omission in any judgment or order in the matter of granting any relief, therefore, the intention of the Court is of utmost importance. If the unequivocal intention of the Court can he read in the judgment suffering from any omission, it would be in the interest of justice that such omission be supplied in tune with the said intention. If, however, the intention is not clear it would not be permissible for thy court in exercise of its power u/s 152 of the CPC to fill up any omission in the judgment as the same would amount to re-writing the same, a proposition clearly beyond the scope and ambit of Section 152 of the CPC.

The decision cited by Mr. G.N. Sahewalla may briefly be referred to. As alluded above, it deals with the spread of Section 152 CPC. It has been held therein that the corrections contemplated under the said provision of law are those pertaining to accidental omission or mistakes and any omission which goes to the merits of the case is beyond the scope thereof. The said section also cannot be pressed into service to correct any omission which is unintentional how erroneous that may be. In that case, the learned Trial Court had decreed the suit for future interest only, though the prayer was also for grant of interest pendente lite. It was held that in the facts and circumstances of the case, the omission to grant pendents lite interest was not an accidental omission.

Turning to the case in hand, reading the ex parte judgment and decree between the lines, it cannot be said that the learned Trial Court had clearly intended that the decree for recovery of khas possession also be granted to the plaintiffs though the two portions of the ex parte judgment extracted bereinabove appears to be inconsistent to some extent, the concluding lines in the operative portion of the ex parte judgment as well as in the decree reasonably indicates that the learned Trial Court did not intend to grant the relief for recovery of khas possession to the plaintiffs. There is no clear and definite finding of the learned Trial Court as regards the recovery of khas possession of the suit land in favour of the plaintiffs. In my considered view, it is not a case where the learned Trial Court had intended to grant the reliefs for recovery of khas possession to the plaintiffs, but there had been an unintentional and accidental omission to incorporate the reliefs pertaining thereto in the ex parte judgment and; decree.

In that view of the matter, haying regard to the statement of law noticed hereinabove, it is not possible to conclude that the impugned order, suffers either from any error of jurisdiction or any other patent or glaring illegality warranting interference by this Court in its revisional jurisdiction. The correction and or rectification sought for by the petitioner-plaintiff in the instant facts and circumstances of the case is not as envisaged u/s 152 of the CPC.

In the wake of the above, invocation of the inherent power of the Court u/s 151 of the CPC is also not called for. The revision petition has no merit and is dismissed.

No coats.