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2001 DIGILAW 1351 (AP)

P. Andallu v. Muralidhar

2001-10-29

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THE CRP is directed as against an order made in IA No. 302/2001 in os No. 530/97 on the file of the X Jr. Civil judge, City Civil Court at Hyderabad. ( 2 ) THE respondent herein filed IA no. 302/2001 on the file of the X Junior civil Judge, City Civil Court at Hyderabad under Section 152 read with Section 151 of the Code of Civil Procedure seeking a relief to correct the judgment and decree dated 19-1-2001 by passing an eviction order against the revision petitioner herein and pass such other orders as the Court may deem fit and proper in the circumstances of the case. The respondent in the CRP, the plaintiff in OS No. 530/97, had filed IA no. 302/2001 for the relief specified supra. The respondent-plaintiff had instituted the aforesaid suit for the relief of perpetual injunction initially. But, in view of the changed circumstances, the respondent- plaintiff had filed an application in IA No. 763 of 1998 for declaration of title and also ejectment of one room admeasuring 0. 07 square yards, but the said application was allowed and the amendment was duly carried out. On contest, on 19-1-2001 the suit was decreed restraining the revision petitioner from interfering with the peaceful possession and enjoyment of the plaint schedule properly, but due to oversight, the relief of eviction was omitted and it is only an accidental slip and hence, the same is liable to be corrected by exercising powers under section 152 read with Section 151 CPC. The revision petitioner, the defendant in the suit, had filed a counter opposing the application as not maintainable on the ground that these all are matters touching the merits of the case as such and hence such corrections arc beyond the scope of sections 151 and 152 of the Code of Civil procedure. The Court below after hearing both the sides, had allowed the application by an order dated 4-6-2001. It is also brought to my notice that as against the main judgment made in OS No. 530/97 a regular appeal was preferred in AS No. 178/ 2001 on the file of III-Additional Chief judge, City Civil Court at Hyderabad and the same is pending for disposal. ( 3 ) MR. It is also brought to my notice that as against the main judgment made in OS No. 530/97 a regular appeal was preferred in AS No. 178/ 2001 on the file of III-Additional Chief judge, City Civil Court at Hyderabad and the same is pending for disposal. ( 3 ) MR. Radhakrishna, the learned counsel representing the revision petitioner had vehemently contended that the order of the Court below is totally unsustainable in law. The learned Counsel also had taken me through the contents of the judgment, which is now the subject-matter of appeal in AS No. 178/2001 and had contended that no specific issue has been framed on the aspect of eviction and when no specific findings had been recorded in the course of judgment, it cannot be said to be an accidental slip or an error within the ambit of Section 152 of CPC. The learned counsel had further contended that the court when it pronounced the judgment once, became functus officio and hence at the most the remedy will be either by way of appeal or by way of applying for review of the judgment and the course adopted by the respondent is peculiar and unknown to law and hence, the impugned order suffered from material irregularity and is not sustainable. The learned Counsel also had placed reliance on Dwaraka Das v. Stale of Madhya Pradesh and another, air 1999 SC 1031 and Samarendra Nath sinha and another v. Krishna Kumar Nag, air 1967 SC 1440 . ( 4 ) MRS. Vani, the learned Counsel representing the respondent-plaintiff had vehemently contended that an overall reading of the judgment will clearly disclose that the intention of the Court was to grant relief of eviction also and hence, it is only an accidental slip or omission. The learned counsel also had contended that power exercised by the Court below in correcting such an error or omission cannot be said to be without jurisdiction and since no jurisdictional error was committed by the court below, the revisional Court need not interfere with an order of this nature doing substantial justice between the parties on the ground of niceties of law or the legal technicalities. The learned Counsel also had drawn my attention to the portions of the judgment where there is some discussion about the subsequent events including dispossession. The learned Counsel also had drawn my attention to the portions of the judgment where there is some discussion about the subsequent events including dispossession. The learned Counsel would further maintain that inasmuch as already as No. 173/2001 is pending as against the main judgment and decree, even as against the amended decree in pursuance of this order, the remedy of regular appeal is available to a revision petitioner and in this view of the matter also, the impugned order, if allowed to stand, will not occasion any failure or justice and hence, it warrants no interference under Section 115 CPC. The learned Counsel also had contended that a party should not suffer by a mistake or omission committed by the Court. ( 5 ) HEARD both the parties and perused the material available on record. ( 6 ) IT is no doubt true that on the facts available on record, the question appears to be one of conflict between the substantial rights of the parties and the niceties of law in the normal course of legal technicalities. However, the law courts are expected to enforce law and when the provision of law operate as a clear bar, the equity jurisdiction cannot be exercised so as to override the specific provisions. Here is a case where the Court while deciding the suit had framed the following issues:1. Whether there is a cause of action for filing the suit? 2. Whether the Court has jurisdiction to try the suit? 3. Whether the plaintiff is absolute owner of the suit schedule property? 4. Whether the plaintiff is entitled for perpetual injunction as prayed for? 5. To what relief? ( 7 ) EVEN a careful perusal of the judgment shows that except a passing reference about dispossession and the allowing amendment application, neither a specific issue was framed nor specific findings had been recorded relating to the relief of eviction. It is needless to mention that the decree will be drafted in accordance with the judgment only and hence, as there are no findings at all relating to this aspect, I do not think that the Court below is well within its limits in incorporating the relief of eviction by ordering an interlocutory application filed under Section 152 read with Section 151 CPC. Section 152 CPC reads as follows:"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 of its own motion or on the application of any of the parties". In Samarendra Nath Sinha and another v. Krishna Kumar Nag, AIR 1967 SC 1440 , the Apex Court held that errors arise from accidental slip can be corrected subsequently not only in decree drawn up by the ministerial officer but even in judgment pronounced and signed by Court. In dwaraka Das v. State of Madhya Pradesh and another, AIR 1999 SC 1031 , the Apex court at page No. 1032 was pleased to observe:"section 152, CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, Court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistake which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the province of Sections 151 and 152 CPC can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. It has been noticed that the Courts below have been liberally construing and applying the province of Sections 151 and 152 CPC can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial Court had specifically held the respondents-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendente lite interest was concerned". ( 8 ) AT any stretch of imagination, the introduction of the reliefs by way of an order of this nature cannot be said to be falling within the limits of exercise of powers either under Section 152 or under section 151 of CPC and hence, I am satisfied that the Court below had definitely overstepped in exercising the jurisdiction in allowing an application of this nature and thus, the impugned order suffers from jurisdictional error and is liable to be set aside. However, it is needless to mention that the parties are at liberty to pursue their other remedies available to them in law. With these observations, the impugned order made in IA No. 302/2001 in OS No. 530/97 on the file of the X Junior Civil Judge, City- civil Court, Hyderabad, is hereby set aside and the CRP is allowed. But, however, in the facts and circumstances of the case, no order as to costs.