Melchizedec vs Johnson and Others

K.K. Sasidharan, J.—This Interlocutory Application filed at the instance of the Fifth Appellant in A.S. No. 1118 of 2001 seeks amendment

of the judgment and decree dated 25 June 2004 as the ultimate indication regarding the nature of disposal of the Appeal was not in accordance

with the finding.

Overview of Proceedings:

The property, which was the subject matter of the Suits in O.S. Nos. 50 of 1982 and 93 of 1984 on the file of the learned Subordinate Judge,

Tuticorin originally belonged to one Andrews, who died leaving behind him, his wife Aniranjitham, daughter Suganthi, and son George as legal

heirs. He was an Indian Christian. Subsequently, Mr. George died leaving Glori Ammal, Julia Chandravathi and Prabavathy Rebakkal as his legal

heirs. The legal heirs of Mr. George filed a Suit in O.S. No. 50 of 1982 before the Subordinate Court, Tuticorin praying for a decree of partition

and separate possession of their half share. The property which was the subject matter of A.S. No. 1118 of 2001 was shown as item No. 4 in the

said Suit.

Item No. 4 in O.S. No. 50 of 1982 was purchased by the First Respondent as per registered Sale Deed dated 24 November, 1980. The

document was executed by Mrs. Aniranjitham. The First Respondent filed a Suit in O.S. No. 93 of 1984 before the Subordinate Court, Tuticorin

against the Petitioner and others claiming that he is entitled to the property on the strength of the Sale Deed. The Suits in O.S. No. 50 of 1982 and

93 of 1984 were tried jointly and a common judgment was pronounced by dismissing the Suit in O.S. No. 50 of 1982. The Suit filed by the First

Respondent in O.S. No. 93 of 1984 for declaration and recovery of possession was decreed. The Plaintiffs in O.S. No. 50 of 1982 filed A.S. No.

954 of 1988 before this Court. Similarly, the Defendant in O.S. No. 93 of 1984 filed an Appeal in A.S. No. 1118 of 2001.

The Appeals were taken up together. The Division Bench found that there was no family arrangement as claimed by the Defendants 1 to 4 in

O.S. No. 50 of 1982 and therefore, the learned Trial Judge was not justified in dismissing the Suit. Accordingly, A.S. No. 954 of 1988 was

allowed whereby and where under, decree for partition was granted in favour of the Plaintiffs in O.S. No. 50 of 1982.

The Division Bench also found that Mrs. Aniranjitham has no right to execute the document in favour of the Plaintiff in O.S. No. 93 of 1984.

Therefore a factual finding was given to the effect that the First Respondent has no right to get a decree of declaration. However, while concluding

the judgment instead of indicating that the Appeal in A.S. No. 1118 of 2001 is ""allowed"", it was indicated as ""dismissed"". It is only for the purpose

of correcting the said mistake, the Petitioner has filed this Interlocutory Application in C.M.P. No. 809 of 2009.

The First Respondent has filed a Counter Affidavit wherein it was indicated that the word ""dismissal"" cannot be characterised as a mistake,

which could be corrected by filing an Application for amendment. The First Respondent further contended that the Application itself was filed after

a period of five years and as such it is liable to be dismissed on the ground of delay.

We have heard the learned Counsel for the parties.

The issues and their resolution:

The grievance of the Petitioner is only on account of the error crept in the judgment and decree with respect to the nature of disposal of the

Appeal in A.S. No. 1118 of 2001. The judgment passed by the Division Bench clearly gives an indication that the Plaintiffs in O.S. No. 50 of

1982 (Appellants in A.S. No. 954 of 1988) got half share in the property. Accordingly, the judgment and decree of the Trial Court dismissing the

Suit was set aside. After setting aside the said decree, the Division Bench considered the decree granted by the Trial Court in favour of the

Plaintiffs in O.S. No. 93 of 1984. The Division Bench in paragraph 34 of the judgment concluded that a factual finding has already been given in

A.S. No. 954 of 1988 that no family arrangement was effected among Aniranjitham, her son and daughter soon after the demise of Dr. Andrews

and thereby no property was allotted to Aniranjitham as her share. Therefore, the alleged execution of the Power of Attorney in favour of the

Second Defendant by Aniranjitham and the consequent sale of item No. 4 of the property, namely, the house in favour of the First Respondent

cannot be accepted. The Division Bench categorically held that the First Respondent herein has no title to the property and as such the Trial Court

was not justified in granting a decree of declaration. However, after saying so, the Division Bench was pleased to record that the Appeal in A.S.

No. 1118 of 2001 has to be dismissed. The said error was an error apparent on the face of the record.

The next question is whether this Court should correct the said mistake without filing an Application for review by the Petitioner.

The First Respondent has no case that the indication regarding the dismissal of the Appeal was correct. He was more on procedure.

According to the First Respondent, the remedy available to the Petitioner is only to file a review. Therefore, the core issue is whether the Petitioner

should be directed to file a Review Petition even to correct the mistake committed by the Court.

The correction of mistakes committed by the Court cannot be equated to review of the order as provided under Order 47, Rule 1 of the Code

of Civil Procedure. The review jurisdiction should be conferred expressly. It is true that under the guise of review, re-hearing of the matter is not

permitted. The Court while correcting mistakes exercises its plenary jurisdiction. The procedure Codes are intended only to facilitate justice and

not to defeat it. Procedural provisions are designed to regulate the proceedings. Technicalities should not come in the way of correcting bona fide

mistakes committed by the Courts. The Courts must correct all kinds of errors so as to prevent the miscarriage of justice. The Court is not

concerned about the nature of proceedings initiated by the party to correct the errors in case the mistake was on the part of the Court. The Court

is expected to correct the mistake, in case it is brought to its notice. Therefore, the Court is not concerned about the correctness of the procedure

adopted by a party to correct the mistake committed by the Court.

The earlier authorities:

The Supreme Court in Jang Singh Vs. Brijlal and Others, , considered the maxim ""Actus curiae neminem gravabit"" and observed that the

mistake committed by the Court should be rectified by the Court. The relevant paragraph reads thus:

6... It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so

that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices,

to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though

it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him

responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should

harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position

he would have occupied but for that mistake. This is aptly summed up in the maxim: ""Actus curiae neminem gravabit.

While considering the scope and ambit of the review jurisdiction in Lily Thomas, Vs. Union of India and Others, , the Supreme Court observed

that the Law has to bend before justice and technicalities of Law cannot stand in the way of administration of justice. The Supreme Court said:

52... It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, held

that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also

not an Appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of

law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review

Petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its

perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.

The Supreme Court in R.N. Jadi and Brothers and Others Vs. Subhashchandra, , considered the procedural law vis-a-vis substantive law and

held thus:

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent,

but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily

be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute,

the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet

extraordinary situations in the ends of justice.

The mortality of justice at the hands of law troubles a judge''s conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure

should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae

where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. See Sushil

Kumar Sen v. State of Bihar.

No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or

for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed

according to the altered mode. See Blyth v. Blyth, A procedural law should not ordinarily be construed as mandatory, the procedural law is always

subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. See Shreenath v.

Rajesh.

Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not

the mistress, a lubricant, not a resistant in the administration of justice.

The Supreme Court in S. Nagaraj and Others Vs. State of Karnataka and Another, , held that rectification of an order stems from the

fundamental principle that justice is above all and it is exercised to remove the error and not for disturbing finality.

There is nothing to review in the subject case inasmuch as the Division Bench has clearly accepted the case of the Petitioner. The error crept in

the judgment cannot be attributed to the Petitioner. The mistake of the Court should not cause prejudice to the Petitioner. Therefore, we are of the

considered view that the Petitioner was fully justified in his contention that the final indication in the Appeal was a mistake which is liable to be

corrected.

Accordingly, the operative portion of the judgment in A.S. No. 1118 dated 25.6.2004 is corrected as ""allowed"" instead of ""dismissed"".

In short, para 36 of the judgment would now read thus:

Accordingly, the Appeals in A.S. No. 954 of 1988 and A.S. No. 1118 of 2001 are allowed setting aside the common judgment and decree of the

Court below. However, there will be no order as to costs. Consequently, the C.M.P. No. 13244 of 1988 is closed.

The Registry is directed to correct the decree in the light of the substituted paragraph No. 36 of the Judgment.

In the upshot, C.M.P. No. 809 of 2009 is allowed. In view of the disposal of the said Application, no further orders are necessary in C.M.P.

No. 810 of 2009. Accordingly, the said Application is closed.