Kannappan vs Rajeswari Ammal and another

This second appeal and the Civil Revision Petition have a common origin. The petitioner in the revision petition, who is the appellant in the

second appeal, is the landlord and hereinafter, he will be referred to as such. The respondent in both the cases is the tenant, and he will be referred

to as such in this judgment.

The landlord filed R.C.O.P. No. 84 of 968 under the provisions of the Tamil Nadu uildings (Lease and Rent Control) Act (hereinafter referred

to as the Act) for eviction of the tenant on the ground of wilful default and subletting. In the petition for eviction, the property is described by its

door numbers and boundaries. The door numbers are mentioned as 75 and 76. The four boundaries are fully described.

The tenant contested the petition on the ground that she had not committed wilful default in payment of rent and she had not sublet the premises

as alleged by the landlord. She raised another objection that a single petition for eviction was not maintainable, as the same was in respect of two

premises viz., door Nos. 75 and 76.

All the three contentions raised by the tenant were overruled and an order of eviction was passed on 21-10-1972 by the District Munsif,

Poonamallee, who was the Rent Controller, There was an appeal at the instance of the tenant in the Court of Subordinate Judge, Chengalpattu.

The same contentions were repeated before the appellate authority. The appeal was dismissed on merits on 17-2-1977. The tenant filed a revision

petition in this Court. But as there was delay, she filed an application for condonation of the delay. Delay was not condoned, with the result, the

revision petition was not entertained. That order was challenged by a SLP by the tenant in the Supreme Court of India and it failed.

The landlord filed E.P. No. 43 of 1979 for executing the order of eviction. But it could not be executed for want of full particulars in the decree.

In the decretal order drafted by the Rent Controller, the full description of the property as found in the eviction petition was not repeated. On the

other hand, the decretal order merely set out the door numbers, name of the street and names of the village and taluk. The boundary description,

which was given in detail in the eviction petition was not repeated in the decretal order as it should have been done. Consequently the order of

eviction could not be executed.

The landlord filed E.A. No. 20 of 1980 before the Rent Controller for amendment of the description of the property in the decretal order. That

was allowed on 6-10-80. The order was challenged by the tenant in W.P. 6946 of 1980. That was done on the footing that the order having been

made by the Executing Court was not appealable and there was no other remedy available to the tenant except to resort to Article 226 of the

Constitution of India. That Writ Petition was dismissed as not maintainable on 21-1-1983. This Court held that the order could not be treated as

one relating to execution of the decree and Section 18 of the Act was not applicable. The tenant was left to her other remedies, which may be

available to her in law. Thereafter, the tenant filed C.M.A. against the order of the Rent Controller granting amendment in E.A. No. 20 of 1980

along with a petition for condonation of the delay in filing the same. That application for condonation of delay was dismissed on 17-3-1983, by the

Subordinate Judge, Thiruvel-lore, who was the appellate authority. That was challenged by the tenant in a revision petition in this Court in C.R.P.

No. 1606 of 1983. By order dated 12-8-1983, this Court allowed the Revision Petition and condoned the delay in filing of appeal. The Court

treated the order of amendment as one passed under the original jurisdiction and not in the process of execution.

Consequently, the appeal filed by the tenant was taken on file and numbered as R.C.A. I of 1984 by the Subordinate Judge. By order dated

30-4-1985, the appeal was allowed and the order of the Rent Controller was set aside. The appellate Judge took the view that the Rent Controller

passed the order in exercise of his jurisdiction as an Executing Court and he had no power to do so. The appellate authority also held that the

amendment was sought in a wrong forum, as the order of eviction was taken on appeal and confirmed by the appellate authority. It is the said

order of the appellate authority, which is challenged in the revision petition.

Even when the above proceedings were pending, the tenant filed a separate suit on the file of the District Munsif, Poonamallee, in O.S. 136 of

1978 for a declaration that she was a tenant in respect of vacant site described as item No. 3 in that plaint schedule and that the lease deed dated

30-12-1987 was vitiated by fraud, and misrepresentation on the part of the landlord, for a permanent injunction restraining the landlord from

interfering with her right to possess and enjoy item 3 without any let or hindrance, for a declaration that the plaintiff is a tenant in respect of the

vacant site, which is described as item 4 of that plaint schedule, and for a permanent injunction restraining the landlord from interfering with her

right to possess and enjoy item No. 4 without any let or hindrance. In the schedule to that plaint, item 3 was described as a vacant site measuring

about one ground being the northern portion of item No. 1 and denoted as F CL C2 D4 and item 4 was described as vacant site measuring about

half ground which is denoted in the plaint sketch as D. E. F. G. B. Cl. Dl. It is seen from the plaint schedule that items 3 and 4 form part of door

Nos. 74 and 76, which were the subject matters of the petition for eviction, though the tenant raised a contention in the suit that they were vacant

sites not forming part of the building portion.

That suit was transferred to the file of the District Munsif, Ponneri and numbered as O.S. No. 68 of 1981. By judgment dated 20-7-1983, the

suit was dismissed. Learned District Munsif held that there was no separate tenancy in favour of the plaintiff in that suit with reference to items 3

and 4 of the plaint schedule. He held that there was no oral lease with regard to the same as contended by the tenant. It was also held that the

alleged lease deed dated 30-12-1967 was not true. It was also held that the suit would be barred by limitation as the relief sought was with

reference to a document of 1967 alleged to have been obtained by fraud and misrepresentation.

There was an appeal by the tenant before the Subordinate Judge. Thiruvellore in A.S. No. 65 of 1983. By judgment dated 30-4-1985. The

Subordinate Judge allowed the appeal in part and granted a decree restrain- ing the landlord from executing the order of eviction till the defect in

the decretal order of eviction in R.C.O.P. was rectified by a proper Court. That judgment is challenged in the Second Appeal No. 2017 of 1986.

On the same day i.e. 30-4-1985, the Subordinate Judge allowed the R.C.A. 1 of 1984.

The above facts are not in dispute. There is no substance in the contention that the order passed by the Rent Controller amending the decretal

order of eviction is in the exercise of his jurisdiction as Executing Court. The Subordinate Judge failed to note that such a contention was not

available to the tenant inasmuch as this Court had twice held that it was an order in exercise of the original jurisdiction of the Rent Controller and

not on the Execution Side.

It has to be considered whether the Rent Controller had jurisdiction to grant amendment of the decretal order of eviction, after the appeal had

been filed against the order of eviction and disposed of on merits. According to learned counsel for the tenant, the decree passed by the Rent

Controller for eviction got merged in the appellate decree passed by the appellate authority and the only Court that had any power to amend the

same was the appellate authority and not the Rent Controller. In support of his contention, he places reliance on several decisions of this Court as

well as other High Courts.

The earliest among those decisions is that of a Full Bench in Pichuvayyangar v. Seshayyangar, ILR 18 Mad. 214. A suit for land with mesne

profits was decreed by the District Munsif and in hisjudgment, a finding was given that the plaintiff was entitled to mesne profits as from a certain

date. The quantum was to be determined in execution. In the decree no mention was made of the date from which the mesne profits were to be

calculated, but it was merely stated that the amount was to be determined in execution. There was an appeal before the District Judge at the

instance of the defendant and the decree was modified in certain particulars unconnected with mesne profits. When the plaintiff applied for

amendment of the decree to the Court of first instance to bring the decree intoconfirmity with the judgment, an order was granted. That was

challenged before this Court in Revision. It was held by the Full Bench that the jurisdiction of the Court of first instance to amend the decree was

ousted by the confirmation of the decree on appeal. The judgment of the Full Bench does not contain any discussion but it consists practically of

only one sentence, which reads thus :

We are of opinion that when there has been an appeal against the decree of the District Munsif and a decree has been passed thereon, the District

Munsif has no longer any power to amend his decree.

The judgment of the Full Bench is distinguishable as the amendment in question related to the operative part of the decree, inasmuch as it

sought to include in the decree a right to mesne profits from a particular date. No doubt, the omission to mention a date was due to a clerical error

or an accidental slip. But yet, it had a bearing on the rights of the parties as such.

In Narkulla Venkayya and Another Vs. Noona Satyanarayana and Another, , a Division Bench of the Andhra Pradesh High Court held that

where mistakes have arisen by reason of inadvertence in entering wrong survey number in the plaint, the Court had ample power to correct them

u/s 152 of the Code of Civil Procedure, but the said power could be exercised only by the appellate Court, for the decree of the trial Court had

merged with that of the appellate Court.

The next decision relied on by learned counsel is found in Mt. Kulwanti Devi and Others Vs. Ajodhi Singh and Others, . A Division Bench of

the Patna High Court held lhat under the provisions of Section 152, C.P.C., it was only the appellate Court which had authority to amend the

decree and correct the mistake perpetrated by the trial Court in the preparation of the decree, which decree had been affirmed by the appellate

Court. The same view was taken in Ramsunder Singh Vs. Most. Pana Kuer and Others, , wherein another Division Bench of the same Court has

held as follows (at page 6):

The provisions of Section 152 of the CPC which are applicable in the present case, lay down that a clerical error in judgments, decrees or orders

can be corrected by the Court. The question as to which Court has the jurisdiction in a case where the suit travels up to the appellate stage. The

power of correction has been vested in the Court where the mistake is committed. It, therefore, follows that if the decree, which is sought to be

corrected, has been passed by the appellate Court, it is the appellate Court which has got the jurisdiction to set the mistake right. In Lala Brij

Narain v. Kunwar Tejbal Bikram Bhadur, (1910) 37 Ind App 70 it was held that the trial Court has jurisdiction to amend the decree which has

been affirmed in appeal. The said decision was given in slightly different circumstances, but the principle is applicable to the present case.

A Full Bench of the Kerala High Court has occasion to consider the question in Kannan and Others Vs. Narayani and Others, . It was

categorically laid down that ""except in cases in which S. 153-A of the CPC applies, where there has been an appeal, the decree under appeal

merges in the decree in the appeal and it is only the Appellate Court that could correct or amend the decree under S. 152 of the Code."" The Full

Bench has placed reliance on the judgment of the Privy Council in Brij Narayanan v. Kunwar Tejbal Bikram Behadur, (1910) 37 Ind App 70 and

the judgment of the Supreme Court in Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, . It is seen from the facts of the case before the Full Bench

that the amendment sought for concerned a correction in the judgment of the details of allotment of shares to which the petitioners laid a claim. The

Full Bench did not decide the question whether the error in the judgment could be said to be accidental slip or omission. The Full Bench

proceeded to decide the case on the question of jurisdiction of the Court to which the application was made for amendment.

In the Supreme Court case referred to by the Krrala Full Bench viz., Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, , the question related to

execution and the limitation there- for. Relying on the principle that there is a merger of the decree of the trial Court with the decree of the appellate

Court, the Supreme Court held that (at page (383) :

Where the decree of the trial Court is carried in appeal and the appellate Court disposes of the appeal after a contested hearing, the decree to be

executed is the decree of the appellate Court and not of the trial Court, and consequently the limitation started to run from the date of the appellate

decree."" The question that arises for consideration in the present case did not arise before the Supreme Court directly for consideration in that

case, though the principle of merger of decrees was referred to and relied on by the Supreme Court.

In Re: S.N. Komarasawami Goundan, , a contention was raised before a Division Bench that a Rent Controller being a quasi-judicial tribunal

and not a Court, was not entitled to grant an application for amendment. That contention was negatived by the Division Bench holding that a quasi-

judicial tribunal also had inherent power to set right mistakes made by inadvertence so long as the amendment did not amount to a review of the

adjudication already made. One other objection raised before that Bench was that the amendment was granted by the appellate authority and an

application ought to have been filed before the Rent Controller. Negativing the said contention, the Division Bench observed as follows (at page

767):

In this case it is not denied that both the landlord and the tenant knew to which property the proceedings related. In fact, when the Rent Controller

passed an order of eviction against the petitioner he filed an appeal to the appellate tribunal, presumably on the assumption that the proceedings

related to the house which he was occupying. It does not lie in his mouth to oppose the present application for amendment. It is true that an

amendment of both the orders of the Rent Controller and the appellate tribunal was not necessary, because the Rent Controller''s order was

merged in the order of the appellate tribunal, but we see nothing wrong in making such a direction out of abundant caution.

It is seen from the facts of the case that the error was in the pleading itself. That was discovered at the stage of execution and an application was

made to correct the door number, which had been wrongly given. The said application was filed before the appellate authority, which had disposed

of the appeal. That was not a case in which the amendment pertained to any clerical or accidental error in the decree of the Court only but the

error originated in the petition for eviction itself.

This Court had occasion to consider the question of jurisdiction to grant amendment in a case arising under the Madras Agriculturists Relief

Act, Act IV of 1938 as amended by Act 23 of 1948 in O. RM. P. RM. Ramanathan Chettiar Vs. P.S.L. Ramanathan Chettiar and Others, . An

application was made before the trial Court for amendment of the decree under S. 19(2) of the Act. An objection was taken as the maintainability

of that application on the footing that the decree having been affirmed on appeal by the appellate Court, the application should have been filed in

the appellate Court. That was negatived by the Court in view of the fact that there was a special provision in Sections 19 and 20 of the Act which

defined the ''Court which passed the decree''. In that connection, the Bench made the following observations (at page 210) :

Where a decree of a Court is appealed against its finality would be suspended and the decree passed by the appellate Court would supersede it,

be it a case of either affirmance, modification or reversal. In all such cases, the appellate decree will be the only decree for purpose of execution. It

is, therefore, contended that where a decree has been passed by an appellate Court, the original Court would have no jurisdiction to amend the

decree. Reference was made in this connection to the cases arising u/s 152, Civil Procedure Code. Section 152, Civil Procedure Code, embodies

what in the English Courts was called the slip rule; it gives power to a Court to correct the clerical error or arithmatical mistakes in judgments,

decrees, etc. The provision contemplates that the decree or judgment would be a valid one and the jurisdiction conferred was only to correct the

mistakes of the type mentioned. Where, however, the matter was taken up on appeal the judgment or decree was set at large and all mistakes

could be rectified and a proper decree passed by the appellate Court; it would follow that that Court alone will have the power to amend its

judgment.

The Observation made by the Division Bench in that case is really an obiter as the ratio of the decision rested on the special provisions contained in

the special enactment.

Learned counsel for the tenant fairly brought to my notice the judgment of Pan-chapakesa Ayyar J. in Goli Ammiraju alias Ammanna Vs. Goli

Kondalrayudu and Others, . The learned Judge has expressed the view that when a matter is finally settled in first appeal and second appeal, the

appellate Courts become functus officio and the trial Court is the residuary legatee for all future Interlocutory Applications and other matters of

litigation connected with the suit, provided such matters do not seek to modify the decree in appeal. It was observed that a bona fide error of the

parties, Commissioner and Court in failing to divide two undoubted items of family properties, can be rectified by a Court and the decree

amended, even after appeal and second appeal, without any danger of limitation provided the vested interests of other persons whether parties to

the suit or not, are not affected, and the mere fact that there has been a first appeal and a second appeal will not stratify the error and make it

unrectifiable, without limitation operating in law. There is no discussion of the relevant question on the basis of the previous decisions thereon.

Obviously the learned Judge proceeded on the footing that justice having been rendered, an objection, which was technical as to the form, should

not be countenanced.

Learned counsel has also brought to my notice very fairly the judgment of Rama-prasada Rao, J. in Hamid Bi v. Udayyan, 1974 TLNJ 463.

The observations made by the learned Judge in that judgment are very apposite to the present case and it is worthwhile re-producing the same

herein.

Courts of law exist to prevent mischief and advance justice. Technicalities sometimes have to be put aside so as to subserve and render justice to

parties. As in the instant case, if the technical objection raised by the respondent were to be accepted, then the solemn decrees of the trial Court as

well as the appellate Court would be thwarted and the result would be the Court would be giving a badge of authority to a litigant to perpetuate

mischief. When once it is conceded that there is no dispute as to the identity of the land as ascertained from the boundaries, then it follows that

there could be controversy or conflict as between the parties regarding the subject-matter of the suit. No doubt the property was originally

discribed as bearing a new survey No. 173/69 and old S.No. I73/2A and it was sought to be amended as new survey number 173/1 and S.No.

Obviously, this parcel of land in dispute is a chunk of S.No. 173 and these sub-divisions were effected at some point of time and whilst

describing the actual subdivision number, a mistake has crept in. No doubt, this was carried through till the appeal stage and the mistake was

discovered in the course of the E.P. The respondent is taking undue advantage of this mistake which is an accidental mistake or a clerical one. This

view is fortified because there is no controversy between the panics over the identity of the land as ascertained by the boundaries. In such

circumstances, if the technical objection about the corrections being beyond the scope of S. 152 is accepted, then it would result in miscarriage of

justice. The technical plea therefore raised by the learned counsel for the respondent does not appeal to the Court, The other contention that the

decree of the appellate Court ought to be amended and not the decree of the trial Court is a hyper-technical objection. The appellate Court

confirmed the decree of the trial Court, but it could not be forgotten that the subject matter in the trial Court as well as in the appellate Court is the

same, namely, the land under controversy. The identity of the land was never disputed and net even disputed even before the executing Court. The

amendment ought to have been allowed.

Learned counsel for the tenant submits that in the said case, there was no dispute as to the identity of the land but in the present case his client

has raised a dispute with regard to the subject matter of the tenancy and seeks to distinguish the said judgment. I am unable to accept the argument

of iearned counsel for the tenant. It cannot be forgotten that in the proceedings for eviction, there was no dispute as to the subject-matter of

tenancy and the tenant never raised an objection that there was a lease of a vacant site in her favour in addition to the building which formed the

subject matter of separate tenancy and which could not be the subject-matter of the proceedings for eviction. After the tenant failed in the Supreme

Court and when the application for amendment is made just for the purpose of completing description of the property in the decretal order by

bringing in the entirety of the description, which was given in the petition for eviction, the present objection is taken and that too by a separate suit,

which is the subject-matter of Second Appeal. I have no hesitation to hold that there cannot be any dispute as to the identity of the property with

reference to which the order of eviction was made by the Rent Controller. Inasmuch as the landlord seeks to bring in the full description of the

property in the decretal order as was set out in the petition for eviction, there is no substance in the contention that there is a dispute as to the

identity of property.

A reference is made in the order of the Rent Controller to an unreported decision of this Court in C.R.P.N. 2543 of 1979. The original

judgment was sent for and it is before me. Satiadew, J. following the ruling of Justice Ramaprasada Rao in Hamid Bi v. Udayyan, 1974 TLNJ

held that the prayer for amendment of a survey number in the decree could be granted by the trial Court in spite of the fact that the decree

was confirmed by the appellate Court.

In L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, . amendment of the decree was sought for when appeal had been

admitted in the Supreme Court and was pending. It was argued that the High Court had no jurisdiction to deal with the application for amendment

as the matter was in appeal before the Supreme Court. Negativing the said contention, the Supreme Court observed as follows (at page 643) :

The application for the amendment in question was made under Ss. 151 and 152 of the Code; and it became necessary because the decretal

order drawn in the High Court referred to the profits of which accounts were directed as mesne profits. The use of the words ''mesne profits''

would have inevitably brought in the period of three years beyond which accounts could not be claimed. By their application, the plaintiffs alleged

that the use of ''mesne profits'' in the decretal order was inconsistent with the judgment which had directed accounts of the net profits and so they

claimed that the decretal order should be corrected in Cl. III, sub-cl. (3). According to the prayer thus made it was suggested that the clause

should read as follows ""that the defendants 12, 13 and 14 are liable for the net profits of the properties purchased by them under Schedule V,

Schedule II and Schedule I respectively ""The word ''net profit'' was used in the place of ''mesne profits'' originally introduced in the order. When

this application for amendment was argued before the High Court, the defendants pleaded that the use of the words ''mesne profits'' was proper

and should not be changed. It was urged on their behalf that in its judgment the High Court had introduced the words ''mesne profits'' deliberately

and so the decretal order was perfectly correct. This contention has been negatived by the High Court, and in our opinion rightly. It appears that in

the earlier portion of his judgment, Krishnaswamy Naidu, J., summarised in one paragraph the effect of the decree passed by the trial Court; and in

giving this summary he observed that under the decree defendants 12, 13, 14 and 16 were held entitled to be paid the respective considerations of

the sales and mortgages together with interest they being liable to account for mesne profits as per the terms of the decree. Two things are clear.

This part of the judgment does not contain the decision of the High Court at all. It is really concerned with the narration of the relevant facts and it

purports to summarise the effect of the decree and nothing more. Besides, the use of the words ''mesne profits'' in the context is obviously the

result of inadvertence because the decree of the trial Court had in the relevant clause used the words ''net profits'' and not mesne profits. Thus,

there can be no doubt that the decretal order drawn in the High Court through error introduced the words ''mesne profits'' and such error could be

corrected by the High Court under Ss. 151 and 152 of the Code even though the appeals may have been admitted in this Court before the date of

correction.

It should be noted that the amendment sought had a bearing on the operative portion of the decree inasmuch as the expression ''mesne profits''

was to be replaced by the expression ''net profits''. As pointed out by the Supreme Court, the expression ''mesne profits'' would have brought in a

question of limitation as regards the period of accountability. Yet, the Supreme Court held that it was only an error which could be corrected under

Ss. 151 and 152 of the Code of Civil Procedure, and consequently the High Court had jurisdiction to do so in spite of the pendency of the appeals

in the Supreme Court. Learned counsel for the tenant submits that the ruling will not apply to the present case as in the case before the Supreme

Court, appeals were pending and there was no question of merger of the decree of the High Court with appellate Decree. The said contention

cannot be rejected as untenable.

However, in a later case, the Supreme Court upheld the maintainability of an application for correction of errors arising from accidental slip

before the trial Court. That was in Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, . In that case, in a suit for foreclosure of a

mortgage, a preliminary decree for sale was passed inadvertently. That decree was also confirmed on appeal. Thereafter, an application was filed

to amend the decree and make it one for foreclosure. As that was granted, an objection was raised before the Supreme Court that the trial Court

had no jurisdiction to amend the decree. Overruling the said objection, the Supreme Court said (at page 1443),

Now, it is well settled 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.

Every Court"" said Bowcn, L. J. in Mellor v. Swire, (1885) 30 Ch D 239, has inherent power over its own record 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 Ss. 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 151. The rule

does not also affect the Court''s inherent power under S. 151. Under 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.

As already pointed out, the mortgage in question was one by conditional sale empowering the mortgagee to take possession of the mortgage

security if the monies due thereunder were not paid by the due date. The suit filed by the mortgagee was also for a foreclosure decree. The tenor

of the judgment of the trial Court shows that the Court meant to pass such a foreclosure decree especially as the plaint contained no prayer for a

decree for sale or for a personal decree against the mortgagors or the said Hazra if the sale proceeds were found insufficient. The written

statements of the defendants did not raise any contention against the mortgagees'' right for a foreclosure decree, their defence being only that they

were entitled to pay the mortgage amount by instalments. There can therefore be tittle doubt that the Court had no occasion to pass a preliminary

decree for sale and that it was through an accidental slip or inadvertence that in the penultimate part of its judgment, the Court used the

phraseology proper in a mortgage decree for sale. Once this error had crept in the judgment it was repeated in the preliminary decree and this

error was not even noticed by the High Court when it desmissed Hazra''s appeal and confirmed that decree. The error was later on noticed by the

appellants as is seen from the order passed by the trial Court dismissing the respondent''s application under S. 151 for setting aside the final

decree. That order states that the Subordinate Judge who tried the suit through oversight passed a preliminary decree for sale overlooking the fact

that it was a suit for foreclosure and possession, that it was also apparent that this mistake of the trial Court went unnoticed in the High Court

which confirmed the decree of the trial Court and;

therefore, this Court, when it passed the final decree being apprised of the apparent mistake in the form of the preliminary decree, corrected the

initial mistake and did justice by passing a final decree for foreclosure and for possession which was the only scope of this suit."" This being the

position the trial Court had the power under S. 151 and S. 152 to correct its own error which had crept in the judgment and the preliminary

decree and pass a proper final decree for foreclosure as intended by it.

Learned counsel for the tenant contends that the principle of merger was not considered by the Supreme Court in that case. Even if it is so, the

ruling of the Supreme Court that clerical errors in the decree could be amended even after the same was confirmed by the appellate Court, which

in that case, was the High Court is binding on me. I cannot distinguish the ruling and refuse to apply the same to the present case on the footing that

a particular argument which was available to the appellant therein was not raised or considered by the Supreme Court. The fact remains that the

power under Ss. 151 and 152, C.P.C. of a Court to rectify errors arising from accidental slip was considered and it was held that it could be

exercised at any stage, even after the decree had been confirmed by the higher Court. In spite of the trial Court decree having merged with the

decree of the High Court, the Supreme Court held that the trial Court had jurisdiction under Ss. 151 and 152 of the CPC to rectify the errors and

amend the same. That ruling of the Supreme Court will apply on all fours to , the present case.

Even if this Court had taken a different view in earlier cases decided by Division Bench and Full Bench, the ruling of the Supreme Court will

govern the issue and I am found to follow the same.

Learned counsel for the landlord contends that the appeal filed by the tenant before the Subordinate Judge against the order of the Rent

Controller amending the decree was not maintainable. According to him, the order is not one affecting the merits of the case, and it could not be

considered to be an order within the meaning of S. 23 of the Act. He placed reliance on the judgment of Ratna-vel Pandian, J. (as he then was) in

Chinnaraju Naidu v. Bavani Bai, (1981) II MLJ 354. That was a case in which the door number given in the petition for eviction was amended in

an Interlocutory Application when the main case was pending. It was held by the learned Judge that all interlocutory orders passed during the

proceedings under the Act cannot be said to be orders coming within the meaning of Section 23(1)(b) of the Act and only the orders that affect the

rights and liabilities of the parties in the sense that they become final orders though passed on interlocutory application, such as refusing to set aside

ex parte order etc., are appealable. Learned counsel also invites my attention to a judgment in Ponnammal v. The Deputy Superintendent of Police

(98 Law Weekly 47 Summary of cases). It was observed in that case that the principle is, if the decision or order in the interlocutory application is

likely to affect the decision of the case on merits and thereby affect the rights and liabilities of the parties, then such a decision or order can be

canvassed in appeal under the Act. It was also observed that an order allowing or refusing substantive amendment of the pleadings already

projected in the case is certainly an order affecting the decision of the case on merits, and hence appealable.

In the view I have taken on merits of the appeal and the revision, I am not inclined to decide the question as to whether the appeal before the

subordinate Judge against the order of amendment was maintainable. However, I should point out that the contention urged by learned counsel for

the tenant that the order of amendment having been passed after the proceedings had concluded, would affect the rights of parties and therefore,

appealable, is not without force.

Consequently I hold that the Rent Controller had jurisdiction to pass the order of amendment and on the facts of the case, I am of the view that

the amendment was rightly granted. As already stated, the full description of the property as given in the petition for eviction ought to have been set

out in the decretal order for eviction. The mistake was committed by the court of the Rent Controller in drafting the decree without including the full

description of the property and confining it to the door numbers, name of the street besides the names of the village and taluk. It was an error

committed by the court for which the party shall not suffer. The principle of ""Actus curiae non-neminium gravabit"" will apply to the present case. I

am convinced that justice has been rendered by the grant of amendment and it should not be defeated on hypertechnical objections raised by the

tenant as to the forum in which the application should have been filed.

The judgment of the learned Judge in the appeal arising out of the suit filed by the tenant was only consequential as he had held that the

amendment was not sustain able and the decretal order was not executable as it stood, he granted the relief of injunction only. The appellate judge

did not grant any other relief as prayed for by the plaintiff.

The plaintiff has filed a memorandum of cross-objections raising the same grounds as put forward in the trial court. Learned counsel

vehemently contends that the appellate court ought to have granted the relief of declaration as prayed for by the plaintiff. There is no substance in

the contention. The suit will be undoubtedly barred by limitation in asmuch as the relief prayed for is with reference to a document of 1967. Even

assuming that the document was true but brought about by fraud and misrepresentation on the part of the landlord, that cannot be set aside in a suit

instituted in 1978. The plaintiff ought to have come to court within a period of three years from the date of the document. I have gone through the

judgment of the trial court and find that the reasons given by the trial court for negativing the claim of the plaintiff on merits are unassailable. There is

no case for the plaintiff on merits too.

In the result, the Civil Revision Petition as well as the Second Appeal have to be allowed and are hereby allowed. The order of the

Subordinate Judge, Thiruvellore in R.C.A. No. 1 of 1984 and the judgment and decree in A. S. No. 63 of 1983 are set aside. The judgment and

decree of the District Munsif, Ponneri in O. S. No. 68 of 1981 and the order of the Rent Controller (District Munsif) Ponneri in E. A. No. 20 of

1980 in E. P. No. 43 of 1979 in R. C. O. P. No. 83 of 1968 are restored. The memorandum of cross-objection filed in the Second Appeal is

dismissed.

Appeal allowed.