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2008 DIGILAW 913 (PAT)

Abhay Kumar Jain v. Gudar Mal Jain

2008-07-10

MIHIR KUMAR JHA

body2008
Judgment 1. Heard Counsel for the petitioner. 2. In the opinion of this Court, the impugned order passed by the court below refusing to make correction in a decree dated 27.11.1998 in Title Suit No. 144/1987 (Eviction) as sought for by the petitioner after almost six years by filing an application dated 14.9.2004 purportedly in exercise of the power under Sections 152 & 153 of the Code of Civil Procedure (C.P.C.) does not suffer from any jurisdictional error. 3. The plea of the petitioner-decree holder that in a suit for eviction, the Court below in its judgment in paragraph no. 32 had committed a clerical error and the same was fit to be deleted, is wholly misconceived. It has to be noted that the petitioner-landlord had filed a suit for eviction being Title Suit No. 144 of 1987 (Eviction) which was allowed by the judgment dated 27th November, 1998 by passing the final order, which reads as follows: "that the suit be and same is decreed on contest with partial eviction, the defendant is directed to vacate the northern one door space out of his three door space and make its possession over to the plaintiff within two months from the date of this judgment/order. Otherwise he will be evicted from said one door space of northern side of suit shop by process of law." 4. It has to be noted here that the petitioner being the decree holder did not choose to file any appeal or revision or even a review of the said judgment and after a period of almost six years had filed the application for amendment of the judgment in paragraph no. 32 by suggesting that the last sentence of paragraph no. 32 to the effect that "Since defendant is io vacate one door space out of 3 door space so plaintiff should reduce the rent to proportionately" was a clear clerical error inasmuch as the Civil Court had no power to give any finding with regard to the enhancement or reduction of a rent of the premises in question. It was in this regard that the Counsel for the petitioner had also relied on the provision of Section 5 of the B.B.C. Act to show that enhancement or reduction of rent was exclusively within the domain and powers of the house controller and not the Civil Court. 5. It was in this regard that the Counsel for the petitioner had also relied on the provision of Section 5 of the B.B.C. Act to show that enhancement or reduction of rent was exclusively within the domain and powers of the house controller and not the Civil Court. 5. A question thus would arise as to whether the relief sought for by the petitioner for deletion of the last sentence of paragraph no. 32 of the judgment as quoted above was a clerical or arithmetic error, capable of being amended in exercise of power under Section 152 of the C.P.C. Section 152 of the C.P.C. reads as follows: "Section 152. Amendment of judgments, decrees or orders.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." 6. Counsel for the petitioner had fairly submitted that there was no question of any arithmetical mistake in the judgment and in fact, the case of the petitioner was only confined to clerical mistake. It is difficult for this Court to accept such submission of the Counsel for the petitioner because if the petitioner was really aggrieved by the aforementioned last sentence of paragraph no. 32 of the judgment, he had a remedy by filing a revision or review on the ground that such findings recorded on merit of the case was beyond the powers of the Civil Court. That having been not done by the petitioner, he after execution of the decree by getting the premises vacated could not have invoked the power under Section 152 or 153 of the C.P.C. which really amounted to an amendment in the decree on merits of the case. 7. The scope of clerical error is well defined and in this context even if the C.P.C. does not define clerical error, the scope of such clerical error is spelt out in Blacks Law Dictionary which reads as follows: "Clerical Error.An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination. Among the boundless examples of clerical errors are omitting an appendix from a document; typing an incorrect number; mistranscribing a word; and failing to log a call. in writing or copying something on the record, and not from judicial reasoning or determination. Among the boundless examples of clerical errors are omitting an appendix from a document; typing an incorrect number; mistranscribing a word; and failing to log a call. A court can correct a clerical error at any time, even after judgment has been entered." 8. A bare reading of the aforementioned explanation of clerical error would make it clear that such error has to be a minor mistake or inadvertent error in writing or copying some fact on the record which is distinguishable from judicial reasoning or determination. As a matter of fact, when the Court of Munsif while adjudicating the eviction suit filed by the petitioner had held that the petitioner was entitled only for partial eviction, it had also made an observation as with regard to the proportionate reduction of rent for the truncated premises from which the tenant, the judgment debtor, was not to be evicted. Such findings therefore, on merits by way of a judicial reasoning and/ or determination, could not have been corrected by way of lack of jurisdiction of the Civil Court as with regard to the enhancement/reduction of rent of premises. When the petitioner wanted deleting of the said observation or findings in paragraph no. 32 of the judgment, he was definitely aiming to get certain findings/observations made against him reviewed on merit. That is not however, the scope of removal of clerical error in terms of Section 152 of the C.P.C. The reliance placed by the petitioner on the judgment of the Apex Court in the case of Samarendra Nath Sinha & Anr. vs. Krishna Kumar Nag reported in AIR 1967 SC 1440 is also wholly misconceived. The Supreme Court in that case was dealing with the question arising out of mortgage and in that context, it was recorded that from the tenor of the judgment of the Trial Court, it was clear that the Court meant to pass a foreclosure decree in the light of the prayer made in the plaint and therefore, when there was no prayer for decree for sale, there was little doubt that the Court had no occasion to pass a preliminary decree for sale and it was through an accidental slip or inadvertence that in the penultimate part of its judgment, the Court used the phraseology "in mortgage decree for sale". This Court would fail to understand as to how the ratio of Samarendra Nath Sinha case (supra) would be applicable to the facts of the present case inasmuch as here in the suit in hand, the petitioner had prayed for a decree of eviction of the entire premises and the Court had allowed only a partial eviction by holding that the requirement of the petitioner, plaintiff landlord, could be fulfilled by allowing partial eviction. In that view of the matter, it would be difficult to hold that when the Court in paragraph no. 32 of the judgment had made certain findings or observations with regard to the reduction of rent flowing from the findings of partial eviction, the same was a clerical error. 9. As a matter of fact, an error arising from an accidental slip or omission which alone is the scope of clerical error in terms of Section 152 of the C.P.C. stands well explained by the Apex Court itself in the case of Janakirama Iyer vs. Nilakanta Iyer reported in AIR 1962 SC 633 wherein it was held that when the decree has drawn up by the High Court had used the word "mesne profit" instead of "net profit". In fact the use of words "mesne profit" came to be made probably because narrating the facts these words were inadvertently used in the judgment. The Apex Court had accordingly clarified that the use of the words "mesne profit" 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 word "net profit" which could be definitely corrected in terms of Section 152 of the C.P.C. Such is not the case in hand and as has been discussed above, the findings with regard to the reduction of rent proportionate to the area of premises remaining under occupation of the tenant- judgment debtor was passed on the findings of the partial eviction as being allowed by the Court. In that view of the matter, it cannot be said that there was any clerical error which was capable of being removed by deleting the last sentence of paragraph no. 32 of the judgment. 10. In that view of the matter, it cannot be said that there was any clerical error which was capable of being removed by deleting the last sentence of paragraph no. 32 of the judgment. 10. A matter, requiring elaborate arguments or evidence on question of facts or law, for its discovery, cannot be categorized as an error arising out of accidental slip or omission in order to bring it within the scope of Section 152. If the Court considered a legal provision and came to a wrong conclusion, consciously thinking that conclusion to be correct and passed a wrong decree, it is evidently not an error arising from any accidental slip or omission, but a mistake consciously committed, cannot be corrected under Section 152 of the C.P.C. and the only remedy upon to the party aggrieved, in such a case would be to file an appeal. The power of rectification of clerical, arithmetical errors, or accidental slips, does not empower the Court to have a second thought over the matter, and to find that a better order or decree court, or should, be passed. There should not be a reconsideration of the merits of the matter to come to a conclusion that it would have been better, and in the fitness of things, to have passed an order, is as sought to be passed on rectification. On a second thought, the Court may find that it may have committed a mistake in passing an order in certain terms, but every such mistake is neither a clerical error nor does the same permit its rectification in the exercise of the Courts inherent powers, as contained under Section 152 of the C.P.C. The exercise of power under Section 152 C.P.C. is to be confined to something that was initially intended, but was left out or added, against such intention. This aspect of the matter in fact was also gone into by the Apex Court in the case of Dwarka Das vs. State of Madhya Pradesh reported in (1999)3 SCC 500 wherein it was held that no Court can, under the cover of Section 152 of the C.P.C. modify, alter or add to the terms of its original judgment, decree or order. 11. 11. This being the settled position in law, it must be held that the Court below while rejecting the prayer of the plaintiff- landlord for seeking correction in the judgment, did not commit any jurisdictional error by holding that the last sentence of paragraph no. 32 of the judgment was not a clerical error and thus, incapable of being amended in terms of Section 152 of the Code of Civil Procedure. 12. The remaining portion of the impugned order holding that the tenant-judgment debtors application for proportionate reduction of rent in terms of the findings in paragraph no. 32 of the judgment was maintainable before the Civil Court can have also no exception in law especially when the plaintiff-landlord, the petitioner of this case, did not choose to file any appeal or revision against the aforementioned findings of the Civil Court. The view thus taken by the Court below that tenants application for reduction of rent in terms of the judgment and decree dated 27.11.1998 was maintainable also does not suffer from any jurisdictional error. 13. That being so, this Court would not find any merit in this civil revision application and accordingly, the same is hereby dismissed.