Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 909 (MAD)

T. Viswanathan v. Sellammal

2013-02-13

M.VENUGOPAL

body2013
Judgment 1. The Petitioner/Respondent/Plaintiff has filed the present Civil Revision Petition as against the order dated 22.01.2011 in I.A.No.22 of 2011 in O.S.No.279 of 2008 passed by the Learned II Additional District Munsif, Erode. The Learned II Additional District Munsif, Erode, while passing the impugned order in I.A.No.22 of 2011 in O.S.No.279 of 2008 on 22.01.2011, has interalia observed as follows: "On perusing the petition, the court has closed I.A.No.498/2008 which was filed for temporary injunction and I.A.No.347/09 filed for appointment of commissioner on the same date ie.19.11.2010. Therefore by mistake the petitioner would have mentioned the I.A.No.498/08 instead of I.A.No.347/09. But, on reading the entire averment in petition, his prayer is to reopen the petition filed for appointment of commissioner." and resultantly, allowed the petition without costs. 2. The pivotal argument projected by the Petitioner/Plaintiff is that the Respondents/Defendants filed I.A.No.22 of 2011 praying for issuance of an order by the trial Court to reopen I.A.No.498 of 2008 and also to accept the Commissioner's report. But, the trial Court, while allowing I.A.No.22 of 2011, has categorically observed "therefore by mistake the petitioner would have mentioned the I.A.No.498/08 instead of I.A.No.347/09". 3. It comes to be known that I.A.No.347 of 2009 has been filed by the Respondents/ Defendants praying for the appointment of an Advocate Commissioner and the same has been allowed on 16.04.2010. Pursuant to the order being passed in I.A.No.347 of 2009 on 16.04.2010, the trial Court has appointed Mr. K. Kangaraj, Advocate as Commissioner to inspect the suit property and to measure the same with the assistance of Taluk Surveyor. The Learned Advocate Commissioner has been directed to file his report by 30.04.2010, however, the Learned Advocate Commissioner, for the reasons best known to him, has not filed his report. Therefore, the trial Court has been perforce to close I.A.No.347 of 2009 on 19.11.2010. 4. It appears that the Petitioner/Plaintiff has filed the present Civil Revision Petition assailing the exercise of judicial discretion by the trial Court in respect of the correct I.A.No.347 of 2009 (mentioned wrongly as I.A.No.498/08 by the Respondents/Defendants). The said incidental or accidental or ancillary typographical error that has crept in the affidavit and petition in I.A.No.22 of 2011 as I.A.No.498 of 2008 instead of I.A.No.347 of 2009, cannot be blown out proportion or need not be seriously objected to, in the considered opinion of this Court. 5. The said incidental or accidental or ancillary typographical error that has crept in the affidavit and petition in I.A.No.22 of 2011 as I.A.No.498 of 2008 instead of I.A.No.347 of 2009, cannot be blown out proportion or need not be seriously objected to, in the considered opinion of this Court. 5. A scrutiny of the ingredients of Section 151 of the Civil Procedure, exhibit that a Court of Law has every power to pass an order that may be necessary for securing the ends of justice and also to prevent an abuse of process of Court as per decision Md. Maqsud V. Hoshiar Singh ((1945) ILR All 394) this Court at this stage deems it appropriate to recall the decision of the Hon'ble Supreme Court in Raj Bahadur Ras Raja V. Seth Hiralal ( AIR 1962 SC 527 ) wherein it is observed and held that "the inherent power has not been conferred on the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Also this Court aptly points out the decision in Roger V. Comptoir D' Escompts De Paris ((1871) LR 3 PC 465) wherein it is stated hereunder: "One of the first and highest duties of all, Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'Act of the Court' is used it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matters up to the highest Court which finally disposes of the case." 6. A Court of Law has an uphill task to see that the truth is arrived at by removing the chaff from and out of the grain. For doing real and substantial justice between the parties, the inherent powers of Court can be pressed into service. 7. It is to be borne in mind that every Court has its own inherent power under Section 152 of the Civil Procedure Code to correct the incidental, accidental or ancillary or even typographical error or mathematical error that has crept in the Order/Judgment delivered by it. 7. It is to be borne in mind that every Court has its own inherent power under Section 152 of the Civil Procedure Code to correct the incidental, accidental or ancillary or even typographical error or mathematical error that has crept in the Order/Judgment delivered by it. That apart, the inherent power can be exercised by a Court of Law even in respect of a litigant mentioning a wrong Interlocutory Application Number in the affidavit of the Interlocutory Application. Suffice it for the Court to point out that in the instant case even though the Respondents/Defendants as Petitioners in I.A.No.22 of 2011 have wrongly mentioned the I.A.No.498 of 2008 in the affidavit and petition instead of the correct I.A.No.347 of 2009, the Court has come to the aid of the Respondents/Defendants and has mentioned the correct number as I.A.No.347 of 2009 and allowed the said I.A.No.22 of 2011 to advance the cause of justice. The said judicial discretion exercised by the trial Court in a sound manner does not suffer any vice or arbitrariness or even the same does not suffer from any material irregularity or patent illegality in the eye of law. Viewed in that perspective, the Civil Revision Petition is devoid of merits. 8. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed. 9. It is made clear that the dismissal of the Civil Revision Petition will not preclude or fetter the parties to the disputes/controversies in the main Suit to question the Commissioner's report during the conduct of the main trial of the case in the manner known to law and in accordance with law.