Padinharemannil Thodiyil Hymavathi Amma v. Subhadra Amma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 CRP.No. 3442 of 2001(E) ----------------------AGAINST THE ORDER DATED 06/10/2001 IN IA. 241 /1996 IN I.A.No.665 of 1990 IN OS.147/1988 of SUB COURT, MANJERI .................... PETITIONER(S): - --------------------- PADINHAREMANNIL THODIYIL HYMAVATHI AMMA, 'NAVANEETHI, KEEZHUMURI, MALAPPURAM BY ADV. SRI.ANIL XAVIER - SRI.ZAKEER HUSSAIN SRI.N.MANOJ KUMAR SMT.MANJU CHACKO RESPONDENT(S): - --------------- 1. PADINHAREMANNIL THODIYIL SUBHADRA AMMA, PUTHENPURA HOUSE, THAMARAKUZHI, MALAPPURAM. - 2.K.M.KARUNAKARAN NAIR, RETD.SUBEDAR MAJOR, CHERUKKAD HOUSE, NEAR RAILWAY STATION, FEROKE. 3. KARUMATHIL MANNILTHODIYIL MOHANDAS, PUTHENPURA HOUSE, THAMARAKUZHI, MALAPPURAM 4. K.M.SOORYA NARAYANAN, RETD.WARRANT OFFICER, VIJAYA MANDIR, VEEDIKUTH, NILAMBUR 5. KARUMATHIL MANNILTHODIYIL INDIRA, PUTHENPURA HOUSE, THAMARAKUZHI, MALAPPURAM. 6. KARUMATHIL MANNILTHODIYIL RETNAKUMARI, PUTHENPURA HOUSE, THAMARAKUZHI, MALAPPURAM. 7. KARUMATHIL MANNILTHODIYIL KRISHNANUNNI, PUTHENPURA HOUSE, THAMARAKUZHI, MALAPPURAM. 8. KARUMATHIL MANNILTHODIYIL BHAGEERATHI, PUTHENPURA HOUSE, THAMARAKUZHI, MALAPPURAM. 9. KARUMATHIL MANNILTHODIYIL SOBHANA, PUTHENPURA HOUSE, THAMARAKUZHI, MALAPPURAM. ADV. SRI.K.M.SATHYANATHA MENON FOR R1,3,4 & 6 TO 9 SRI.JACOB ABRAHAM FOR R5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** ## **-------------------------------------------C.R.P. NO. 3442 OF 2001 E -------------------------------------------Dated this the 12[th] December, 2008** ## **O R D E R** The petitioner is the plaintiff in O.S.No.147 of 1988, on the file of the Court of the Subordinate Judge, Manjeri. The suit was for partition. The partible items are shown in two schedules, namely, schedule IIB and schedule IIC. The preliminary decree provides that the plaint IIB schedule property shall be divided into 22 shares and three shares out of the same shall be allotted to the plaintiff. The properties in plaint IIC schedule were directed to be divided into 20 shares and the plaintiff was allotted one share out of the 20 shares. It was also held that the plaintiff is entitled to get mesne profits. There was no appeal from the preliminary decree. 2. The plaintiff filed I.A.No.665 of 1990 to pass a final decree. A Commissioner was appointed, who submitted a report dated 13.7.1992. It would appear that another report dated 30.1.1995 (stated as report dated 1.2.1995 in the proceedings) was also submitted by the Commissioner. On the basis of the reports submitted by the Commissioner, the trial court passed the judgment and final decree. 3. The plaintiff filed I.A.No.241 of 1996 under Section 152 of the C.R.P. NO.3442 OF 2001 :: 2 :: Code of Civil Procedure to correct the mistakes in the final decree. According to the plaintiff, three errors occurred in the final decree: (a) The plaintiff was not allotted 2.5 cents in plaint II B schedule property as shown by the Commissioner in his report; (b) There is a mistake in respect of the item number allotted to the plaintiff in plaint II C schedule property; (c) The date from which the plaintiff is entitled to get mesne profits is not mentioned in the final decree. The trial court allowed the application in respect of mistakes (b) and (c) mentioned above, but dismissed the application in respect of mistake (a) referred to above. The court below took the view that the Commissioner has not filed any plan locating 2.5 cents as now claimed by the plaintiff. In the absence of a plan identifying the extent, the plaintiff is not entitled to claim that an error was committed in the final decree. The court below also held that it was not an omission in the judgment which could be corrected by exercising power under Section 152 of the Code of Civil Procedure. 4. The extent in plaint IIB schedule is 17 cents. It is not disputed that the plaintiff is entitled to 3 out of 22 shares in plaint II B schedule. The Commissioner in his report stated that at the time of inspection, there was no dispute among the parties with regard to the identity of plaint schedule items. The Commissioner also stated in the report that he had measured the property. Only the Village plans were produced by the C.R.P. NO.3442 OF 2001 :: 3 :: Commissioner. The account of equalisation of shares submitted by the Commissioner would show that plaint IIB schedule property has got a total value of Rs.21,340/-. The share value of the plaintiff was estimated at Rs.2,910/-. The Commissioner stated that he was allotting to the plaintiff 2 ½ cents on the eastern part of plaint IIB schedule property. That plot was bounded by road on the east and north. The survey numbers were shown in the report. The Commissioner has also stated the number of arecanut trees and jack trees standing in the property allotted to the plaintiff. The land value of 2 ½ cents was taken as Rs.2,000/-. The value of improvements was taken as Rs.1,600/-. Thus the total value of 3/22 shares allotted to the plaintiff in plaint IIB schedule property was assessed at Rs.3,600/-. The Commissioner also stated that for equalisation of shares, the plaintiff has to pay a sum of Rs.690/- to the defendants jointly. The Commissioner assessed the value of the items allotted to the plaintiff in plaint IIC schedule at Rs.17,118.50. The mesne profits was also assessed by the Commissioner. Going by the Commissioner's report, the owelty amount payable by the plaintiff to the other defendants would be Rs.690 + 17,118.50, the total being Rs.17,808.50. 5. The final decree does not show that any plot was allotted to the plaintiff in plaint IIB schedule property. At the same time, the final decree shows that the plaintiff has to pay a sum of Rs.17,808.50 to the C.R.P. NO.3442 OF 2001 :: 4 :: defendants as owelty amount. The final decree also provides that the plaintiff is entitled to get share of mesne profits from plaint IIB schedule at the rate of Rs.327.25 per year, which is the amount assessed by the Commissioner in his report. The final decree also provides for mesne profits to the plaintiff at the rate of Rs.1,230.50 from plaint IIC schedule property. The report and plan submitted by the Commissioner was treated as part of the decree. Now the question is whether the court below has accepted the Commissioner's report, plan and account or whether any deviation was made by the court in allotting the share due to the plaintiff. On a reading of the final judgment and decree, it is clear that the court did not make any deviation from the report and plan submitted by the Commissioner and the allotment made by him. The plaintiff is entitled to get her due share. She has to get 2.5 cents from plaint IIB schedule property. The final decree did not make any change in respect of the allotment of 2.5 cents as made by the Commissioner. However, it is omitted to be included in the final decree. If the error was occasioned due to an accidental slip or omission, then evidently it is a mistake to be corrected by the Court exercising its jurisdiction under Section 152 of the Code of Civil Procedure. On the other hand, if the Court did not accept the Commissioner's report and made an alteration in the allotment made by the Commissioner, then it is a matter where power under Section 152 could not be exercised by the Court and the final decree could not be C.R.P. NO.3442 OF 2001 :: 5 :: corrected except by way of appeal or review. Here, the owelty amount is calculated taking into account that 2.5 cents was allotted to the plaintiff at the valuation suggested by the Commissioner. The owelty amount is also the same as fixed by the Commissioner. The direction to pay owelty amount of Rs.17,808.50 is a sure indication that the Court wanted 2.5 cents of land in plaint IIB schedule to be allotted to the plaintiff. Otherwise, there would not have been any direction to the plaintiff to pay the owelty amount in respect of plaint IIB schedule also. The plaintiff is also granted mesne profits from plaint IIB schedule as well as from plaint IIC schedule. Though this may not be a decisive factor, I am of the view that the direction to pay owelty amount by the plaintiff in respect of plaint IIB schedule is a sure indication that the Court wanted to pass a final decree allotting 2.5 cents in plaint IIB schedule to the plaintiff. The Court below stated that the Commissioner's report and plan shall be appended to the final decree. That is also a sure indication that the court did not make any deviation from the allotment made by the Commissioner. No alteration was made to the report, equalisation account or share list submitted by the Commissioner. On the other hand, the court below accepted the allotment and the value as suggested by the Commissioner and the parties were directed to equalise their shares in the manner indicated in the Commissioner's report. All these would lead to the only conclusion that there was an error arising out of an accidental slip or ## C.R.P. NO.3442 OF 2001 :: 6 :: omission on the part of the Court while passing the final judgment and decree and in not allotting 2.5 cents in plaint IIB schedule property to the plaintiff. This is evidently a mistake. That mistake is liable to be corrected. The court below dismissed the application in respect of that prayer on a technical ground. ## 6. In **Niyamat Ali Molla** v. **Sonargon Housing Co-operative** **Society Ltd. and others** (AIR 2008 SC 225), the Supreme Court, while dealing with the scope and ambit of Sections 151 and 152 of the Code of Civil Procedure, held as follows: “19. Code of Civil Procedure recognises the inherent power of the court. It is not only confined to the amendment of the judgment or decree as envisaged under Section 152 of the Code but also inherent power in general. The Courts also have duty to see that the records are true and present the correct state of affair. There cannot, however, be any doubt whatsoever that the Court cannot exercise the said jurisdiction so as to review its judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the decree or order. This provision, in our opinion, should, however, not be construed in a pedantic manner. A decree may, therefore, be corrected by the Court both in exercise of its power under Section 152 as also under Section 151 of the Code of Civil Procedure. Such a power of the Court is well recognized.” (emphasis supplied) ## 7. In **Dwarka Das** v. **State of Madhya Pradesh and another** (AIR 1999 SC 1031), the omission which was sought to be corrected was an omission in not granting pendente lite interest. It was held that it was not C.R.P. NO.3442 OF 2001 :: 7 :: an accidental omission or mistake. In that decision the Supreme Court held as follows: “... 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....” ## 8. In **Jayalakshmi Coelho** v. **Oswald Joseph Coelho** (AIR 2001 SC 1084), the Supreme Court held as follows: “15. 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, CPC 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 something 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 in 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 mention in the order or the judgment or something which was intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip C.R.P. NO.3442 OF 2001 :: 8 :: 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 re-consideration or 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, CPC. It is to be confined to something initially intended but left out or added against such intention.” ## 9. In **Master Construction Co. (P) Ltd** . v. **State of Orissa and** **another** (AIR 1966 SC 1047), the Supreme Court considered, with reference to Rule 83 of the Orissa Sales Tax Rules, 1947, as to what is an arithmetical mistake or accidental slip or omission. It was held as follows: “An arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification, namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on questions of fact or law. the accidental slip or omission is an accidental slip or omission made by the court. The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done....” ## 10. In **State of Punjab** v. **Darshan Singh** (AIR 2003 SC 4179), the Supreme Court relied on the decisions in _**Dwaraka Das's case**_ and _**Jayalakshmi Coelho's case**_ and held as follows: C.R.P. NO.3442 OF 2001 :: 9 :: “The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. 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 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. 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 provisions of Sections 151 and 152 of Code 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. Similar view was expressed by this Court in Dwaraka Das v. State of Madhya Pradesh and another (1999 (3) SCC 500) and Jayalakshmi Coelho v. Oswald Joseph Coelho (2001 (4) SCC 181).” ## 11. In **Kuruvilla Thomas** v. **State Bank of Travancore** (1988 (1) KLT 563), adopting a test to be applied to determine whether an error arose out of accidental slip or omission, held as follows: “I feel that a convenient and general test that can be applied to determine whether the correction sought for is in the field of slip or omission is accidental or not, is to examine whether the judgment as it stands represents the intention of the Judge at the time he made it, and if it does, then, a mistake in it cannot be treated as an accidental slip or omission.” ## C.R.P. NO.3442 OF 2001 :: 10 :: In the light of the principles laid down in the decisions referred to above, I am of the view that the order passed by the court below is liable to be set aside. The Civil Revision Petition is accordingly allowed. The order impugned is set aside. I.A.No.241 of 1996 will stand allowed. The plaintiff shall be allotted 2.5 cents in plaint IIB schedule property. If the court finds that it is necessary to appoint the same Commissioner or any other Commissioner to file a supplementary report, appropriate orders can be passed. **(K.T.SANKARAN) Judge** ahz/ ## **K.T.SANKARAN, J.** **-------------------------------------------** **-------------------------------------------** **C.R.P. NO. 3442 OF 2001 E** **JUDGMENT** **12[th] December, 2008 -------------------------------------------**