Damodar v. Mukhtiyar Ahmed — 1978 DIGILAW 258 (RAJ)

S.K. MAL LODHA, J. — This is an application under sec. 152 C.P.C. moved by the plaintiff petitioners (tenant) dated October 27, 1977 which was submitted on Match 27, 1978. It has been prayed that the mistake in the penultimate paragraph of the judgment of this court dated January 13, 1977 passed in S.B. Civil Revision Petition No. 331 of 1976 be corrected by substituting Rs. 3/- and Rs. 7.50/- in place of Rs. 7/- and Rs. 18/- respectively. 2. The facts giving rise to this application may briefly be stated as follows:— 3. The non-petitioner Mukhtiyar Ahmed is the landlord and the petitioner and one Sanwalram took a house and a shop situate at Makarana on rent. The rent-note was executed wherein tenants agreed to pay rent of the house @ Rs. 7/-per mensem and of the shop @ Rs. 18/- per mensem. The suit was filed by the petitioner and Sanwalram on November 8, 1966 for fixation of standard rent u/s. 6 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. After contest, the learned Munsiff fixed the standard rent of the house at Rs. 3/- per mensem and that of the shop at Rs. 7,50/- per mensem vide his judgment dated May 29, 1973. The standard rent fixed was to be effective from the date of the suit, namely, November 8, 1966. Feeling aggrieved by the said judgment and decree, the defendant non-petitioner (landlord) Mukhtiyar Ahmed filed an appeal which was decided by the learned Additional District Judge, Merta on April 13, 1976. He accepted the appeal and the standard rent fixed by the learned Munsiff was modified and in its place the standard rent of the house in suit was determined at Rs. 10.50/- per month and of the shop in suit at Rs. 45/-per month. The standard rent fixed by the learned Additional District Judge was made effective from the date of the decision of the appeal i.e. April 13, 1976 Being dissatisfied with the judgment of the learned Additional District Judge, the plaintiff-petitioners filed a revision petition in this Court. This revision petition was registered as S. B. Civil Revision No. 331 of 1976. The two points which were argued before the learned Judge are as follows:— (1) That the lower appellate court had committed gross error in fixing the standard rent of the house at Rs. This revision petition was registered as S. B. Civil Revision No. 331 of 1976. The two points which were argued before the learned Judge are as follows:— (1) That the lower appellate court had committed gross error in fixing the standard rent of the house at Rs. 10.50/- per mensem and that of the shop at Rs. 45/- per mensem with effect from April 13, 1976. (2) That from the judgment of the learned Additional District Judge, it was not clear, at what rate the tenants are liable to pay rent of the house and the shop during the period from November 8, 1966 to April 13, 1976. 4. With respect to the first point, the learned Judge held that the court below was fully justified in fixing the standard rent at Rs 10.50/- per mensem of the house and Rs. 45/- per mensem of the shop. The second point has been dealt by the learned Judge in the penultimate paragraph of the judgment which runs as under:— "Coming to the second point, suffice it to say that the operative portion of the judgment of the first appellate court clearly reveals that the appellate court accepted the appeal by modifying the decree of the lower court and fixed the standard rent of the house at the rate of Rs. 10 50/- per mensem and that of the shop at the rate of Rs. 45/- per mensem from the date of the appellate judgment. It follows, therefore, that prior to the date of the judgment the standard rent fixed by the Munsiff was maintained. The tenants will be liable to pay rent of the house and of the shop during the period from Nov. 8, 1966 to April 12, 1976 @ Rs 7/- and Rs. 18/- per mensem respectively as determined by the learned Munsiff." 5. Having dealt with the second point in the manner stated above, the learned Judge dismissed the revision petition. 6. The last para of the judgment may also be quoted:— "With these observation petition is dismissed. In the circumstances of the case, there will be no order as to costs." 7. Thereafter, this application u/s. 152 C.P.C. moved. Having dealt with the second point in the manner stated above, the learned Judge dismissed the revision petition. 6. The last para of the judgment may also be quoted:— "With these observation petition is dismissed. In the circumstances of the case, there will be no order as to costs." 7. Thereafter, this application u/s. 152 C.P.C. moved. It has been mentioned in the application that this court vide judgment dated January 13, 1977 maintained the standard rent fixed by the Munsiff prior to the date of the judgment of the learned Additional District Judge dated April 13, 1976. The learned Munsiff in his judgment dated May 29, 1973 fixed the standard rent of the house at Rs. 3/- per mensem and that of the shop at Rs. 7-50/- from the dated of the suit, i.e., November 8, 1966. In the judgment while maintaining the standard rent fixed by the Munsiff prior to the date of the judgment of the lower appellate court, the learned Judge made an order that the tenants are liable to pay rent of the house and of the shop for the period November 8, 1966 to April 12, 1976 @ Rs. 7/- and Rs. 18/- per mensem respectively. But this is agreed by rate of rent and not standard rent determined the learned Munsiff. According to the petitioners, there is clerical error in respect of figures 7 and 18, on account of the accidental slip and, therefore, they have prayed that a correction be made by this court by substituting the figures 3 and 7.50 in place of the figures 7 and 18 respectively. 8. This application has been contested by the plaintiffs-non-petitioner Mukhtiyar Ahmed (landlord) on various grounds by filing a reply on August 28, 1978. 9. I have heard Mr. P. G. Mathur, learned counsel for the petitioners and Mr. H.M. Parakh, learned counsel for the non-petitioner (land-lord). 10. The test to be determined whether the slip or omission is accidental or not, is to see whether the order as it stands, represents intention of the judge at the time when he made it and if it does, then a mistake in it cannot be treated as an accidental slip or omission but, however, and apparent mistake in the judgment can be corrected so as to manifest the intention of the judge, such mistake can always be corrected u/s. 152 CPC. Mr. Mr. Mathur laid consi-derable emphasis that intention of the learned Judge when he passed the order in revision was that the standard rent fixed by the Munsiff is to be maintained for the period from November 8, 1966 to April 12, 1976 and so also the rate of standard rent as determined by the learned Munsiff As stated above by me, Rs. 7/- and Rs. 18/- were the agreed rent of the house and of the shop. These figures do not pertain to the standard rent at all. Besides this, the revision petition was dismissed with the observations made in the judgment. As such, there is no doubt in my mind that the mistake of figures 7 and 18 in the penultimate para of the judgment has arisen from an accidental slip. I am unable to agree with the argument of the learned counsel for the non-petitioner (land lord) that the aforesaid error cannot be corrected under section 152 G. P. C. The decision in Gulab Bai vs. Rampratap (1) on which reliance has been placed by the learned counsel for the non-petitioner (land lord) is not applicable to the facts and circumstances of the case in hand. In that case a preliminary decree under O. XXXIV, r. 4, CPC for a sum of Rs. 3600/- was passed and it was further ordered that the defendant shall pay into the court the said amount by April 30, 1971 and in default of payment as aforesaid, the plaintiff may apply to the court for a final decree for the sale of mortgaged property. Ultimately the final decree was passed on January 12, 1972 directing that the mortgaged property be sold and out of the sale proceeds the mortgaged money be first paid to the plaintiff and if there remains any balance thereafter the same may be paid to the defendant. An application u/s. 152 C.P.C. was moved after three months of the passing of the final decree, stating therein that the court while passing the preliminary decree had inadvertently omitted to award interest pendente lite and future on the suit amount as provided under O. XXXIV, rr. 4 and 11 C.P.C. and consequently the preliminary decree may be corrected by introducing therein a direction for payment of interest pendente lite and future. The trial court ordered the decree to be corrected as prayed. 4 and 11 C.P.C. and consequently the preliminary decree may be corrected by introducing therein a direction for payment of interest pendente lite and future. The trial court ordered the decree to be corrected as prayed. Against that order a revision was filed in this Court. The learned Judge considered the provisions of section 34(2) and O. XXXIV, R. 11 C.P.C. and observed:— "...It is in the discretion of the court to allow further interest from the date of the decree, so also the court has discretion in awarding interest for the period after the institution of the suit and at any rate it is not bound to award interest for such period at the contractual rate......" 11. In view of the aforesaid provisions, the learned Judge found that it cannot be said that the omission on the part of the court to award interest was accidental. He was further of the opinion that the omission may be erroneous but the proper remedy for the aggrieved parties lies either in filing an appeal or applying for review in case the application for review is competent. In these circumstances, it was held that section 152 G. P. C. is not attracted. The scope of section 152 C. P. C. came up for consideration before their Lordships of the Supreme Court in Master Construction Co. (P) Ltd. vs. State of Orissa (2). It was observed in that case: — "...a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made," It was further observed:— "...Such an error shall be apparent on the face of the record that is to say it is not an error which depends for its discovery, an elaborate arguments on question of fact or law. The accidental slip or omission is an accidental slip or omission made by the court......" The following portion from the report may also be extracted:— "...The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done......" 12. In this case the intention of the learned Judge is clear when he directed that standard rent so fixed by the Munsiff will be payable by the tenants from November 8, 1966 to April 12, 1976. 13. In this case the intention of the learned Judge is clear when he directed that standard rent so fixed by the Munsiff will be payable by the tenants from November 8, 1966 to April 12, 1976. 13. It was next argued by Mr. H. M. Parakh that two standard rents of the same premises could not be fixed u/s. 6 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. He supported his argument by referring to the findings of the learned Judge in respect of the first point that was before him. The finding as stated above was that the lower Appellate Court was justified in fixing the standard rent @ Rs. 10 50/- per mensem of the house and Rs. 45/-per mensem of the shop. The standard rent fixed by the learned Munsiff was modified by the learned Additional District Judge because of the change of law. It may be stated that section 6 of the original Act No. XVII of 1950 was modified when the appeal was pending before the learned Additional District Judge. The learned Judge, therefore, upheld the standard rent fixed by the learned Additional District Judge w.e.f. date of the decision of the appeal, i.e. April 13, 1976, but so far as the standard rent prior to the date of judgment of the learned Additional District Judge was concerned, he maintained the stand-ard rent fixed by the Munsiff. In these circumstances, no question of two rates of standard rent being fixed in the suit arises. Apart from this, in these proceed-ings, I am not concerned whether the finding of the learned Judge on the second point that was canvassed before him was correct or not. One thing is clear to my mind that when the learned Judge ordered that the standard rent as fixed by the Munsiff will be payable by the petitioner (tenants) in respect of the period from November 8, 1966 to April 12, 1976, he never intended that they should pay rent at the agreed rate. The words standard rent fixed by the Munsiff was maintained or as determined by the learned Munsiff cannot be lost sight of. 14. The words standard rent fixed by the Munsiff was maintained or as determined by the learned Munsiff cannot be lost sight of. 14. For the reasons mentioned above, I allow this application and order that in the penultimate paragraph of the judgment of this court dated January 13, 1977 figures 3 and 7 50 shall be substituted in place of figures 7 and 18 and to this extent the judgment of the court referred to above shall stand corrected. In the circumstances of the case, there shall be no order as to costs of this application.