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2023 DIGILAW 1106 (RAJ)

Rajasthan State Road Transport Corporation v. Mahaveer Prasad

2023-05-15

MAHENDAR KUMAR GOYAL

body2023
ORDER : Mahendar Kumar Goyal, J. - This revision petition is directed against the order dated 19.01.2023 passed by the learned Upper Civil Judge No.2, Jaipur Metropolitan-I, Jaipur (for brevity "the learned executing Court") in Case No.41/2022 whereby, an application filed by the applicants/judgment debtors/defendants (for short "the defendants") under Section 152 read with section 151 CPC, has been dismissed. 2. The relevant facts in brief are that in the execution petition filed by the respondent/decree-holder/plaintiff (for brevity "the plaintiff") for execution of the decree dated 21.01.2013 passed by the learned Upper Civil Judge (Junior Division) No.2, Jaipur Metropolitan-I, Jaipur (hereinafter referred to as "the learned trial Court") in Civil Suit No.182/2011 whereby, the decree-holder was held entitled for the second selection scale of 5500-150-8000, i.e., the pay scale of the next promotional post of Traffic Inspector, claiming that the plaintiff was not entitled for the aforesaid selection scale, an application under Section 152 read with section 151 CPC was filed by the defendants praying therein that the decree be modified/corrected accordingly. The application has been dismissed by the learned executing Court vide order dated 19.01.2023. 3. Assailing the order dated 19.01.2023, learned counsel for the defendants submits that since, no pay scale of 5500-150-8000 exists in the defendant-Corporation, the decree directing its payment deserved to be rectified. He, therefore, prays that the revision petition be allowed, the order dated 19.01.2023 be quashed and set aside and the application filed by them under Section 152 read with section 151 CPC be allowed. 4. Per contra, learned counsel for the decree-holder opposed the prayer. 5. Heard. Considered. 6. In the present case, correction/modification in the decree dated 21.01.2013 is sought on the ground that the selection scale awarded to the plaintiff therein is not available under the Rules. 4. Per contra, learned counsel for the decree-holder opposed the prayer. 5. Heard. Considered. 6. In the present case, correction/modification in the decree dated 21.01.2013 is sought on the ground that the selection scale awarded to the plaintiff therein is not available under the Rules. A perusal of the judgment dated 21.01.2013 passed in Civil Suit No.182/2011 reflects that the issue No.1 was framed specifically to the effect as to whether the plaintiff is entitled for the pay scale of 5500-150-9000, i.e., the pay scale of next promotional post, the Traffic Inspector as second selection scale on completion of 18 years of service and after appreciating the evidence on record especially the admission by Shri. Babu Lal Gupta (DW-1), finding on this issue was returned in favour of the plaintiff and it was held that he is entitled for the pay scale of next promotional post, i.e., the Traffic Inspector in the pay scale of 5500-150-9000. The civil first appeal preferred thereagainst by the defendants with the specific plea that the plaintiff was not entitled for the benefit of the pay scale of the Traffic Inspector on completion of 18 years of service, came to be dismissed by the learned Additional District Judge No.14, Jaipur Metropolitan vide judgment and decree dated 29.09.2016. The Civil Second Appeal No.40/2017 preferred thereagainst by the defendants too came to be dismissed by this Court vide its judgment dated 02.04.2018. The Special Leave Petition (Civil) Diary No(s). 36490/2018 filed by the defendants was also dismissed by the Hon'ble Supreme Court of India vide its order dated 02.11.2018. 7. In view of the aforesaid factual backdrop, it is apparent that under the decree dated 21.01.2013, the plaintiff has been held entitled for the selection scale of 5500-150-8000 on the basis of findings recorded by the learned trial Court vide issue No.1 upheld and confirmed by the Hon'ble Apex Court of India. 8. Now this Court proposes to examine as to whether such decree can be modified/corrected under section 152 CPC on the premise that no such pay scale exists under the Rules. section 152 CPC provides as under:- "152. 8. Now this Court proposes to examine as to whether such decree can be modified/corrected under section 152 CPC on the premise that no such pay scale exists under the Rules. section 152 CPC provides as under:- "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." 9. Thus, from the provisions of section 152 CPC, it is apparent that it is only arithmetical or clerical error in the judgment, decree or order or any error arising therein for any accidental slip or omission which could be corrected by the Court. 10. Their Lordships have, in case of Jayalakshmi Coelho v. Oswald Joseph Coelho: (2001) 4 SCC 181 , succinctly laid down the scope of section 152 CPC as under:- "14. As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 C.P.C. may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits some thing which was intended to be otherwise that is to say, while passing the decree the court must have in its mind that the order or the decree should be passed on a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not mention in the order or the judgment or something which was not intended to be there stands added to it. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be reconsideration of 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 as sought to be passed on rectification. On a second thought court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Court's inherent powers as contained under Section 152 C.P.C. It is to be confined to something initially intended but left out or added against such intention." 11. A Coordinate Bench of this Court has, in case of Gulab Bai v. Ram Pratap: AIR 1973 Rajasthan 307, held as under:- "4. It may be pointed out that the learned Munsiff has not at all addressed himself to the question whether the type of prayer made by the plaintiff for amending the decree fell within the scope of Section 152, Civil Procedure Code. Under Section 152, Civil Procedure Code a clerical or arithmetical mistake or an error arising from an accidental slip or omission may be corrected by the court. The present is not a case where the decree originally passed was at variance with the judgment in which case the court would have inherent power to bring the decree in conformity with the judgment so as to express its true intention, but where as here, the decree had been drawn up so as to completely agree with the judgment as required by Order XX, Rule 6, Civil Procedure Code, it could not be changed without altering the judgment. It is specifically provided in Order XX, Rule 3, Civil Procedure Code, that "when once signed, the judgment shall not afterwards be altered or added except as provided by Section 152 or on review. It is specifically provided in Order XX, Rule 3, Civil Procedure Code, that "when once signed, the judgment shall not afterwards be altered or added except as provided by Section 152 or on review. Section 152, Civil Procedure Code reads as under:-- "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." No clerical or arithmetical mistake was suggested in the present case. The only question therefore is whether there was any accidental slip or omission, giving rise to an error in the judgment and decree of the trial Court. It may be pointed out that the key word in the relevant phrase is "accidental" and it qualifies an "omission" also. Thus the procedure provided in the rule cannot be used to correct omissions, however erroneous, unless they are accidental. Now the judgment and decree in question make it abundantly clear that the learned Munsiff who passed the decree did not award any interest Section 34(2), Civil Procedure Code provides that "where such a decree is silent with respect to the payment of further interest on such principal sum as aforesaid, from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie." 12. Therefore, under the scheme of section 152 CPC and in the backdrop of aforesaid precedential law, the legal principle which emerges is that under it, the Court is not empowered to correct/amend the decree which is in accordance with the findings recorded in the judgment even if it is erroneous not falling within in its ambit. In these circumstances, it is beyond comprehension of this Court as to how does it lie in the mouth of the defendants to claim that the decree for grant of pay scale of 5500-150-8000 is liable to be corrected/modified on account that no such pay scale exists under the Rules which apparently does not suffer from any arithmetical or clerical error. Even learned counsel for the defendants could not satisfy this Court as to how the decree directing them to pay the plaintiff the pay scale of 5500-150-8000 based on the findings recorded by the learned trial Court on the issue No.1 appreciating the evidence on record which was upheld and affirmed till Supreme Court of India, can be held to be suffering from clerical or arithmetical error. Rather, as a matter of fact, the defendants are seeking to get the decree reviewed in the garb of an application under section 152 CPC which is impermissible. 13. There is another important aspect of the matter. A perusal of the order dated 23.03.2022 passed by the learned executing Court reveals that similar objection raised by the defendants by way of an application filed under Sections 47 & 151 CPC dated 16.02.2022 came to be rejected on merit. Thus, after rejection of their application filed under Section 47 read with section 151 CPC raising same objection, the instant application was not maintainable at all. Learned counsel for the defendants could not satisfy this Court as to maintainability of the instant application filed under Section 152 read with section 151 CPC which is also hit by the principle of res-judicata. 14. In the aforesaid circumstances, it is apparent that the defendant-Corporation is unnecessarily protracting the execution proceeding by filing successive frivolous and misconceived applications at the public expenses. In these circumstances, this revision petition, which is wholly frivolous and misconceived and amounts to abuse of process of law, is dismissed with exemplary cost of Rs. 1,00,000/-. A sum of Rs. 25,000/- out of the aforesaid cost shall be paid to the plaintiff and rest cost of Rs. 75,000/- shall be deposited by the defendants with the Litigants Welfare Fund within a period of four weeks from today. The Managing Director of the defendant-Corporation is also directed to look into the matter and fix responsibility of the erring official(s) who have advised for raising such misconceived plea and filing of the revision petition without examining the factual and legal aspects involved therein. He is directed to submit the enquiry report in this regard in this Court within a period of ten weeks from today.