Syndicate Bank vs Salem Slate Forms and Others

K. Govindarajan, J.—The petitioner filed O.S. No. 52 of 1982 on the file of the Sub-Court, Salem. The suit was decreed as prayed for on

13.6.1984, as the defendants remained ex parte. At the time of filing the petition for final decree, it was found out that by mistake it was prayed in

the plaint that preliminary and final decree should be passed, though the suit is only for recovery of money. So, the petitioner filed I.A. No. 115 of

1988 u/s 152 of the CPC to rectify the mistake by amending the decree, as the suit is only for recovery of money. The said petition was dismissed

by the court below in its order dated 13.10.1990. Aggrieved against the same, the petitioner has filed the above revision.

In the plaint filed in the above suit, the plaintiff has prayed as follows:-

Therefore, the plaintiff humbly prays that the Hon''ble Court be pleased to pass a decree and judgment against the defendant for the suit claim with

subsequent interest at contract rate and costs and make suitable provisions for the passing of a final decree if need be, directing the defendants to

pay the amount within a stipulated time, and in case if they fail to make payment to make provision for the sale of the hypothecated property, in

case the sale proceeds are not sufficient to meet the decree amount, to pass a personal decree against the defendants 2 to 6 for the balance of

amount realisable, grant costs of suit and grant such other relief or reliefs as the Hon''ble court may deem fit in the circumstances of the case and

thus render justice"". The prayer proceeds on the basis that as if the suit is on a mortgage. Order 34, of the Code deals with mortgage suits.

Admittedly, in the present case, no immovable property is involved. The hypothecation deed filed along with the plaint is only with respect to

movable properties. Even the court-fee is paid only u/s 22 of the Tamil Nadu Court-Fee and Suits Valuation Act and not u/s 33 of the Act, which

relates to mortgage suits. A reading of the plaint would show that the claim of the plaintiff is only on the loan amount and not to exercise any right

on the alleged mortgaged properties. Unfortunately, in the prayer, it is prayed to pass a preliminary and final decree as if the plaintiff wants to sell

the hypothecated properties. Even assuming that the plaintiff wants to exercise rights in the hypothecation deed, admittedly, such properties are

movable an it cannot be construed that the suit filed is under Order 34 of the Code. Moreover, even in the plaint itself it is specifically stated that

the first defendant is not carrying on any activity and trade and the plaintiff''s officials did not find the stock-in-trade to cover the security offered for

the loan. So, it is very clear that the suit is not on the basis of hypothecation and it is only on the basis that the defendants failed to repay the money

due to the plaintiff. That is why the court-fee was also paid u/s 22 of the said Act. On the basis of the above, now we have to decide whether the

petitioner is entitled to have the mistake corrected so as to enable the plaintiff to recover the money from the defendant.

It is not in dispute that the court below has found that the amount claimed by the plaintiff is due from the defendants and that finding has become

final. In the present case, there being no ambiguity as to the subject matter of the suit, the court should have exercised its jurisdiction by allowing

necessary amendments. By doing so, the defendants would not in any way be prejudiced or would not suffer any injury. But, on the other hand, the

plaintiff will have to suffer great prejudice and injury. It is also settled where justa falsa-demonstratio in regard to the subject matter of the litigation

and it has not lead to any confusion or mistake in the minds of the other party and has not affected the merits of the decision, Section 152 of the

Code can certainly be invoked.

If any authority is required, the same is found in number of decision which are set out hereunder.

In Katamraju v. Paripurnandam AIR 1949 Mad. 289 Rajamannar, Officiating Chief Justice, as he then was, has held as follows:-

What is now sought in this application is not an amendment of the pleadings as such; it is really an application to correct an error which has crept

also into the decrees. The wide language of Sections 152 and 153, Civil P.C., would, in my opinion, cover a case like the present. The correction

of an error need not always amount to an amendment of a pleading. I do not think it correct to treat this application as an application under Order

6, Rule 17. The passage cited by the learned advocate for the respondent from Halsbury''s Laws of England, Vol.26, at p.56 namely, ''An

amendment may be allowed at any stage of the proceedings even after trial but not after judgment, except on appeal'' evidently refers to a material

and substantial amendment of the pleading. At p. 57 occurs the following statement of the law which is in terms identical with Sections 152 and

153, Civil P.C. ''The Court or a Judge may at any time, and on such terms as to costs or otherwise as may be thought just, amend any defect or

error in any proceedings''. The Court or a Judge may also at any time correct clerical mistakes in judgments or orders or errors arising therein from

accidental omissions"".

In Appat Krishna Poduval Vs. Lakshmi Nathiar and Others, Krishnaswamy Nayudu, J., as he then was, while considering the possibility of

amending the plaint and the decree passed exercising power u/s 152, has held as follows:-

Insofar as amendment is concerned it is only a correction of the survey numbers. There is no dispute as regards the identity of the property nor as

regards the boundaries to it and there was no controversy at all at the time of the suit as to the identity of the property which has been the subject

of the kanom deed. It is only the errors as regards the survey numbers that have crept into the decree and the plaint that are sought to be amended

and even before the Commissioner who was appointed to report as to the correct survey numbers as to the several properties which were the

subject matter of the decree the parties were not at issue as regards item No. 4 in respect of which amendment is sough for. I do not think

therefore that the amendment asked for goes to the root of the claim or an amendment is sought for in respect of any matter which has been a

subject of controversy between the parties to the suit. It is only an amendment for correction of certain errors that have crept into the decree and in

the plaint schedules which errors happen to be also in Ex.B. l. The fact that Ex. B.1 also has the same errors as in the plaint schedule and in the

schedule to the decree cannot disentitle the plaintiffs to have the errors set right if they are entitled to it under the provisions of the Code.

The Apex Court has also had an occasion to consider the scope of Sections 151 and 152, in Samarendra Nath Sinha and Another Vs. Krishna

Kumar Nag, wherein it has been held as follows:-

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 Bowen L., J., in Mellor

v. Swire 1885 (3)0 C.D.289, ''has inherent power over its own records 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 Janakirama Iyer v. Nilakanta Iyer AIR 1962 SC 688 the decree as drawn up in the High Court had used

the words ''means profits'' instead of ''net profits''. In fact the use of the words ''means 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 ''means 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 Sections 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

The Rule does not also affect the court''s inherent power u/s 151. u/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

In the abovesaid Apex Court decision, the suit filed by the mortgage was also for a foreclosure decree. The plaint did not contain a prayer for

decree for sale or for a personal decree against the mortgagor. Since the sale proceeds were found insufficient the trial court by oversight passed

the preliminary decree for sale overlooking the fact that it was a suit for foreclosure and possession. The trial court also confirmed the same. That

was sought to be corrected by filing a petition under Sections 151 and 152 of the Code. The Apex Court held that the trial court has power to

correct its own error which had crept in the judgment and preliminary decree and passed final decree for foreclosure as intended by it.

The abovesaid decision of the Apex Court has been followed by AR. Lakshmanan, J., in Chinna Marudachalam and Another Vs. Chinnaiya

Gounder @ Renganna Gounder, , wherein the learned Judge has held as follows:-

I am therefore of the opinion that the petition filed by the respondents herein/defendants u/s 152, C.P.C. after the decree to correct the error is

perfectly in order and the Courts are empowered to correct the mistake under Sections 151 and 152 of the Code of Civil Procedure. An argument

was advanced by Mr. Rajendran that under Order 20, Rule 3 of the Code, once a judgment is signed by the Judge, it cannot be altered or added.

In my opinion the above Rule expressly provides that a correction can be made u/s 152, C.P.C. and the Rule does not also affect the Court''s

inherent power u/s 151, C.P.C. Therefore, it is thus manifestly clear that the 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. It is well settled

that the act of the Court should not prejudice any party and Courts have the duty to see that their records are true and represent the correct state

of affairs. In orders to prevent the prejudice, Court can always exercise inherent powers. This Court (Sathiadev, J.) also held that there is no time

limit for correcting clerical or arithmetical mistake under Sections 151 and 152, C.P.C. The said opinion was expressed by the learned Judge in the

judgment reported in V.R. Srinivasa Raghavan and Ors. v. Kannammal/Alias by power agent N.C. Raja Gopal and Ors. 1980 T.L.N.J. 50

The Apex Court went further and held in Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, , that a party cannot be

refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Apex Court has

further held as follows:

The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his

blunder, he had caused injury to his opponents which may not be compensed for by an order of costs. However, negligent or careless may have

been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the

other side.

The Apex Court in the said decision has further held that in the application for amendment of the plaint unless it is expressly averred that such error,

omission or misdiscription is due to bona fide mistake, the Court has no power to grant or to amend the plaint, and such a power to grant

amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.

To promote justice and to maintain serenity in the court records, the court, exercising powers u/s 152 of the Code has to vary its judgment so

as to give effect to its meaning and intention. To support the abovesaid view, I seek aid of the decision in Bishnu Charan Das Vs. Dhani Biswal and

Another, wherein it has been held as follows:

Section 152 Civil P.C. is based on two important principles. The first of them is the maxim that an act of the Court shall prejudice no party and

the other that the Courts have a duty to see that their records are true and that they represent the correct state of affairs. In proceedings for

amendment of a decree, the inquiry is continued only to seeing whether the decree correctly expresses what was really decided and intended by

the Court. Order 20, Rule 6 clearly provides that the decree shall agree with the judgment. If the decree is not in harmony with the judgment the

Court has no alternative but to rectify the mistake which has been committed. As the power to amend is exercised for the promotion of justice, it

should be exercised liberally so as to make the decree conform to the judgment on which it is founded. I am fortified in this view by an earlier

decision of this Court reported in Sagua Barik Vs. Bichinta Barik and Another, wherein it was held on a review of the authorities that if the decree

is not in conformity with the judgment Sections 152 and 151 to bring it in line with the judgment and that in exercising the power under Sections

151 and 152 the Court merely corrects the mistake of its ministerial officer by whom the decree was drawn up

The only limitation to exercise such power is that it should not prejudice the other side and the third parties who have acquired right under the

erroneous decree for valuable consideration and ignorance of the error of the decree. In the present case, there is no such hurdle to the Court to

exercise the power u/s 152 of the Code.

The learned counsel appearing for the respondents has submitted that the plaintiff has filed the hypothecation deed as document No. 3 and the

plaintiff has not given any details of the movables as contemplated under Order 1, Rule 31 of the Code, and in view of the deliberate mistake

committed by the plaintiff, the plaintiff cannot be allowed to rectify its own mistake. I am not able to agree with the submission of the learned

counsel. The plaint proceeds only on the basis of loan amount. Merely because hypothecation deed has been produced, it cannot be said that it is

a suit on mortgage. Only in the suit on mortgage, there would be preliminary and final decree. While reading the plaint cumulatively, it cannot be

said that it is a suit on mortgage. Because of the bona fide mistake committed by a counsel while drafting the prayer, the plaintiff cannot be sent

back without any relief, especially when the court below has found that the defendants are liable to pay the said amount, and decree having been

granted on that basis. Even if the objection raised by the learned counsel appearing for the respondents that Sections 151, 152, 153 of the Code

cannot be made applicable to the facts of the present case, this Court can exercise the power under Article 227 of the Constitution of India, in the

interest of justice, to amend the decree. Though the same has to be invoked sparingly, in the present case, that power has to be exercised. Similar

view has been taken by Srinivasan, J., as he then was, in Annapoorni v. Janaki 1995 (1) L.W. 141 and by S.S. Subramani, J., in the Varada

Reddiar and Another Vs. Jayachandran and Others, .

In view of the above discussion and the decisions, I find that the request of the petitioner/ plaintiff is justified. Hence, the order of the court

below is set aside and the court below is directed to permit the plaintiff to amend the plaint as if it is a suit for money and make consequential

amendments in the judgment and decree. With the above observation, this revision is allowed. No costs.