Gangadharan v. Kalyanikutty Amma & Others

# **FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940** **OP(C).No. 1806 of 2012** ## **PETITIONER** **GANGADHARAN, S/O.KITTU, AGED 65 YEARS, PARAYANKODU KALAM, CHITTUR VILLAGE, CHITTUR TALUK, PALAKKAD.** **BY ADV.SRI.JACOB SEBASTIAN** ## **RESPONDENTS:** **1. KALYANIKUTTY AMMA, W/O.LATE VENUGOPALAN, POONA, MAHARASHTRA. PIN 442402.** **2. RAJAGOPALA MENON, S/O.LATE VENUGOPALAN, POONA, MAHARASHTRA PIN 442402.** **3. V.K.BALAGOPALAN, S/O.LATE VENUGOPALAN, POONA, MAHARASHTRA PIN 442402.** - **BY MUKTHYAR AGENT A.RAJAGOPALAN, S/O.AMBATTU SARADA AMMA, 15/82 COURT ROAD, KOPPAM AMSOM, PALAKKAD TALUK PIN - 678001.** **4. A.CHANDRAKUMAR, S/O.LATE KOCHUKUTTY AMMA, JAYALAKSHMY VILASAM, KOPPAM AMSOM, COURT ROAD, SULTANPET, PALAKKAD TALUK, PIN - 678001.** **5. VIKRAM KUMAR** **S/O.GEETHA PREMKUMAR, 8/105, SPARTIN ENCLAIV ERVAD SAKKAN, COLLEGE ROAD, POONA, MAHARASHTRA, PIN 442402.** **-2-** **-2-** ## **OP(C).No. 1806 of 2012** **6. VIVEK KUMAR S/O.GEETHA PREMAKUMAR, JEMINI GAS APPLIANCE BLESS BUILDING, NAGARAPURAM, THALASSERY, PIN 670102.** **R1 TO R3 BY ADVS. SRI.D.KRISHNA PRASAD SMT.S.SANTHY SMT.MINI V.MENON SRI.P.VISHNU PRASAD R4 BY ADVS. SRI.P.GOPAL SRI.B.MURALEEDHARAN R5 & R6 BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 1806 of 2012** ## **APPENDIX ---------** ## **PETITIONERS EXHIBITS** ## **--------------------** - **EXT.P1 TRUE COPY OF THE PRELIMINARY DECREE IN OS. NO. 265/1997 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 22.7.04** - **EXT.P2 TRUE COPY OF THE FINAL REPORT BY THE ADVOCATE COMMISSIONER SUBMITTED ON 30.01.2009** - **EXT.P3 TRUE COPY OF THE FINAL DECREE DATED 18.06.2009 PASSED IN IA. NO. 58 OF 2005 IN OS. 265 OF 97 OF THE COURT OF SUBORDINATE JUDGE OF PALAKKAD** - **EXT.P4 TRUE COPY OF I.A. NO. 4174/2009 OF 2010 IN OS. NO. 265/1997 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKD DATED 30.11.09** - **EXT.P5 TRUE COPY OF THE JUDGMENT DATED 7.10.2010 IN WPC NO. 5285 OF 2010 OF THIS HONORABLE COURT** - **EXT.P6 TRUE COPY OF I.A.NO. 4207 OF 2010 IN O.S. NO. 265/1997 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 2.8.2010** - **EXT.P7 TRUE COPY OF THE OBJECTIONS FILED BY THE PLAINTIFFS/PETITIONERS IN THE FINAL DECREE APPLICATION** - **TO I.A. NO. 4207/2010 DATED 10.1.2011 EXT.P8 TRUE COPY OF THE ORDER DATED 04.04.2012 IN IA NO. 4207/2010 IN I.A.NO. 58/2005 IN OS. NO. 265/97 OF THE COURT OF SUBORDINATE JUDGE OF PALAKKAD** **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/ PA TO JUDGE** **sdr/8.8.18** ## **A.M. SHAFFIQUE, J.** ------------------------------------------- ## O.P.(C)No.1806 of 2012 ---------------------------------------------Dated this the 3[rd] day of August, 2018 ## **JUDGMENT** The petitioner challenges Ext.P8 order passed in a petition filed under Section 152 of the Code of Civil Procedure. The petitioner is the first defendant in O.S.No.265/1997 of Sub Court, Palakkad, in which a preliminary decree was passed. Final decree application was filed as I.A.No.58/2005. Advocate Commissioner was deputed for dividing the properties in metes and bounds, taking note of the respective contentions of the parties. Advocate Commissioner has filed Ext.P2 report. After hearing the respective parties, final decree has been passed. 2. As far as the petitioner/1[st] defendant is concerned, he is allotted the extent of property described in B schedule of Ext.C1, the lie, extent and measurement of which are shown in Plan No.2 attached to Ext.C1 as his share. As far as the 4[th] respondent/2[nd] defendant is concerned, he is allotted the extent of property described in C schedule of Ext.C1, the lie, extent and measurement of which are shown in Plan No.3 attached to Ext.C1 as his share. It is pointed 2 O.P.(C)No.1806/2012 that B schedule of Ext.C1 does not match with the Plan No.2 of Ext.C1 and similarly, C schedule of Ext.C1 does not match with the Plan No.3 attached to Ext.C1. 3. In fact, the petitioner had approached this Court in an earlier proceeding to set aside the Advocate Commissioner's report. Ext.P5 is the order in the said proceedings. In Ext.P5, it is stated that the petitioner does not have any dispute regarding the allotment of shares made by the Advocate Commissioner and the challenge was only in respect of mesne profits and owelty. In the meantime, respondents 1 to 3/plaintiffs noticed that there are some discrepancies in the Advocate Commissioner's report with reference to the shares allotted to defendants 1 and 2. Though they filed a petition for correction as Ext.P4, later it was withdrawn. 4. After Ext.P5 order came to be passed, the petitioner/1[st] defendant filed an application as I.A.No.4207/2010 to correct an error in the final decree order with reference to the discrepancies pointed out earlier. While considering the aforesaid application, the court below found in paragraph 8 of Ext.P8 order as under: O.P.(C)No.1806/2012 3 “8. If we rely on the description as specifically mentioned as allotment of property as shown in the commission report, we have to accept the contention of the petitioner herein. On the other hand, if we follows the description as shown in the plan, we have to accept the contentions of the respondent, as acted upon by the court for passing final decree. On that aspect, even after remand, no argument is advanced from either side.” 5. However, the court below observed that the value of the 'B' schedule property is Rs.1,48,000/- and 'C' schedule property is Rs.1,95,000/- and therefore, the necessary adjustments could be made while sharing the owelty, but no changes seem to have been made in the order. 6. The learned counsel for the petitioner/1[st] defendant submits that there is an apparent mistake, which requires correction by invoking Section 152 of C.P.C. On the other hand, the learned counsel appearing for the 2[nd] defendant argued that the petitioner is not entitled to challenge the allotment at this stage of proceedings, and if at all he has a remedy, he has to prefer an appeal against the final decree. The learned counsel also contended that a petition under Section 152 is not maintainable. If at all there is any mistake, the petitioner/1[st] defendant ought to have preferred an appeal. That apart, having challenged the final O.P.(C)No.1806/2012 4 decree on other grounds, it is not open for the petitioner/1[st] defendant to re-agitate the issue again. The learned counsel also relied upon the judgment of the Apex Court in _**Dwaraka Das**_ v. _**State of M.P. And another**_ [(1999) 3 SCC 500] with a specific reference to paragraph 6 thereof, which reads as under: “Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of 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, the court of the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes 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, however 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 of the CPC even after passing of effective orders in the lis pending before them. No court 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 respondent-State liable to pay future O.P.(C)No.1806/2012 5 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. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30-11-1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State.” ## 7. Section 152 of C.P.C. reads as under: “ **152. Amendment of judgment, 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.” 8. There is no dispute about the fact that when there is any clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission, it can at any time be corrected by the Court either _suo motu_ or on the application of any of the parties. The operative portion of the final decree order reads as under: “That: 1[st] defendant is allotted the extent of property described in B schedule of Ext.C1, the lie, extent and measurement of which are shown in Plan No.1 attached to Ext.C1 as his share. That 2[nd] defendant is allotted the extent of property described in C schedule of Ext.C1, the lie, extent and measurement of which are shown in Plan No.3 attached to Ext.C1 on his share.” O.P.(C)No.1806/2012 6 This is with reference to the allotment of shares to defendants 1 and 2 (petitioner and 4[th] respondent respectively). The perusal of Ext.P2 Commission Report and the plan would show that Plan No.2 is described as 'B' schedule and Plan No.3 is described as 'C' schedule whereas in the Advocate Commissioner's report, 'B' schedule is treated to be allotted to the 4[th] respondent/2[nd] defendant and 'C' schedule to the petitioner/1[st] defendant. It is therefore apparent that in the Commissioner's report, an error had crept in. Instead of noting 'B' schedule as that of petitioner/1[st] defendant, he had noted 'B' schedule as that of the 4[th] respondent/2[nd] defendant and similarly, instead of noting 'C' schedule as that of 4[th] respondent/2[nd] defendant, he had noted the same as that of the petitioner/1[st] defendant. This is an apparent mistake, which requires to be corrected. Even in the impugned order, having found that there is a mistake, the Court did not venture to correct it. 9. Despite the argument of the learned counsel for the 4[th] respondent/2[nd] defendant that the petitioner/1[st] defendant ought to have approached the appellate court based on the judgment in _**Dwaraka Das's case (supra)**_ , I O.P.(C)No.1806/2012 7 cannot agree with the said submission. When it is brought to the notice of the court that there is a mistake or error, which could be simply corrected by a simple method, there is no reason why the parties should be directed to approach the appellate court. If such methods are adopted, it will only increase the litigation process and will not give any finality to the issue involved in the case. Under such circumstances, I am of the view that the mistake that has crept in as extracted above requires to be corrected. Accordingly, Ext.P8 impugned order is set aside. The court below is directed to consider the matter afresh and pass appropriate order taking into account the aforesaid error/mistake in the Commissioner's Report. The Original Petition (Civil) is disposed of. Sd/- **A.M. SHAFFIQUE, JUDGE.** acd