State of Kerala represented by the Secretary to Government, Water Resources Department, Thiruvananthapuram & Others v Aleyamma Baby and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933** **CRP.NO. 159 OF 2010()** **--------------------------------OS.170/1991 OF I ADDL.SUB COURT,ERNAKULAM** ## **REVN. PETITIONER(S): RESPONDENTS IN I.A** **----------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, THIRUVANANTHAPURAM** ## **2. THE CHIEF ENGINEER,** **PROEJCT -II, THIRUVANANTHAPURAM.** ## **3. THE SUPERINTENDING ENGINEER,** **PVIP PROJECT, CIRCLE, PIRAVOM, ERNAKULAM.** **4. THE EXECUTIVE ENGINEER, PERIYAR VALLEY IRRIGATION PROJECT DIVISION NO.II, ALUVA, ERNAKULAM.** **BY GOVERNMENT PLEADER SHRI T.K. SAJEEV** ## **RESPONDENT(S): PETITIONERS** **----------------------------------------------** **1. ALEYAMMA BABY, W/O. C.J. BABY, CHAKALAKKAL HOUSE, THIRUVANIYOOR POST, ERNAKULAM.** **2. NISHA BABY, D/O.C.J. BABY, CHAKALAKKAL HOUSE, THIRUVANIYOOR POST, ERNAKULAM.** **3. NITHYA BABY, D/O.C.J. BABY, CHAKALAKKAL HOUSE, THIRUVANIYOOR POST, ERNAKULAM.** **ADV. SRI.K.BABU THOMAS FOR R2 SRI.K.BABU THOMAS FOR R3 SMT.MARYKUTTY BABU FOR R3** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== C.R.P. No.159 of 2010 ==================================== Dated this the 28[th] day of September, 2011** ## **O R D E R** The predecessor-in-interest of respondents, a contractor by profession undertook certain works under the Government and on various grounds sued the Government for recovery of money in O.S. No.170 of 1991 of the court of learned First Additional Sub Judge, Ernakulam. He made various claims as referred to in the plaint and prayed for recovery of Rs.11,51,439. The suit was resisted by the petitioner and other defendants on various grounds. Evidence was recorded in the suit and Exts.A1 to A38 were marked on the side of predecessor-in-interest of respondents while petitioner and other defendants proved Exts.B1 to B13. Learned Sub Judge also recorded the oral evidence of parties concerned and came out with judgment dated October 20, 1994 as per which certain findings were made in favour and against predecessor-in-interest of the respondents. The operative portion of the judgment stated, “The suit is decreed and a decree is passed **C.R.P. No.159 of 2010** ## -: 2 :- in the following lines. The defendants 1 to 4 are directed to take final measurement of the work done by the plaintiff in his presence and prepare the final bill adjusting the value of departmental materials supplied to him, pay the balance along with security deposit and retention amount together with interest at the rate of 6% per annum from the date of suit till realization without costs, failing which the plaintiff is allowed to realize the same from the defendants 1 to 4 and their assets. It is hereby declared that order No.D2 1060/81 dt. 8.11.1990 is void-ab-inito. Declaration prayed for against the supplemental agreement is allowed”. Certain claims made by the predecessor-in-interest were disallowed. Against disallowing of those claims he filed A.S. No.554 of 1997 in this Court. During the pendency of the appeal the original plaintiff died. Respondents 1 to 3 were impleaded as his legal heirs. That appeal was disposed of by this Court as per judgment dated March 09, 2004. The operative portion of the ## **C.R.P. No.159 of 2010** -: 3 :- judgment reads, “After hearing both sides, we modify the judgment and decree of the court below. Respondent No.3 should consider the claims of the appellants with regard to the following matters: (1) Prevented gains at 15% of Rs.10,35922/- (2) Providing caution boards. (3) Establishment costs incurred beyond 29.3.1985. (4) Additional bailing out of water beyond 29.3.1985. (5) Interest at 12.5% declined on the withheld amounts till 8.3.1991 and (6) interest at 12.5% declined on Rs.5,96,337/from 8.3.1991 to 26.5.1995”. Thereafter respondents filed I.A. No.1003 of 2007 in the suit labeling it as one under Section 152 of the Code of Civil Procedure (for short, “the Code”) to amend the judgment and decree quantifying the amount awarded as per the findings in the judgments. To that application petitioner and other defendants did not prefer any objection. But an argument note was filed (as submitted by learned Government Pleader). Learned Sub Judge ## **C.R.P. No.159 of 2010** ## -: 4 :- passed the impugned order on September 17, 2008 as per which the application was allowed, judgment and decree were amended quantifying the amount payable to the respondents as legal heirs of the original plaintiff (learned counsel for respondents submitted that amendment prayed for vide I.A. No.1003 of 2007 and allowed by the learned Sub Judge does not take in any claim allowed by this Court in the judgment in A.S. No.554 of 1997 and which were directed to be considered by the third respondent in that appeal). 2. Learned Government Pleader appearing for petitioner contended that in the nature of the reliefs prayed for in I.A. No.1003 of 2007 no question of amendment of judgment and decree arose. There is no clerical or arithmetical mistake in the judgment or decree or error arising therein from any accidental slip or omission to be corrected by the Court as prayed for in I.A. No.1003 of 2007. It is also contended by the learned Government Pleader that I.A. No.1003 of 2007 was not maintainable in the trial court since the judgment and decree of the trial court were modified by the appellate court as per the judgment in A.S. No.554 of 1997. Reliance is placed on the decision in **Thomas v. Kunjumon** (2005 [4] KLT 286 (F.B.). **C.R.P. No.159 of 2010** ## -: 5 :- Further contention that learned Government Pleader advanced is that at any rate, it is without any material on record that amount was quantified by the learned Sub Judge. 3. Learned counsel for respondents contended that there is no infirmity or defect in the order under challenge so that this Court is required to interfere in Revision. It is pointed out by the learned counsel that all the amounts now quantified as per the impugned order had been found in favour of the original plaintiff as per judgment dated October 20, 1994 of the trial court and so far as those findings are concerned there was no appeal preferred by petitioner or other defendants and hence the judgment and decree of the trial court have become final. It is contended that so far as judgment of the appellate court is concerned that was only concerning claims made by the original plaintiff and disallowed by judgment dated October 20, 1994. The appellate court did not grant any decree in favour of the respondents but only directed the third respondent in that appeal to consider those claims as well. As aforesaid learned counsel has asserted that claims which the appellate court directed the third respondent in the appeal to consider are not part of the claim made in I.A. No.1003 of 2007. ## **C.R.P. No.159 of 2010** -: 6 :- 4. No doubt, when the judgment and decree of the trial court gets merged in the judgment and decree of the appellate court, application for amendment of the judgment and decree can be entertained only by the appellate court as held in **Kannan v. Narayani** (1980 KLT 9 (F.B.) and affirmed in **Thomas v. Kunjumon** (supra). But those decisions are rendered on the principle of merger. Here, as the learned counsel for respondents submitted before me, the appeal was only with respect to the disallowed claims in the judgment and decree passed by the trial court and this Court while disposing of the appeal did not allow those claims but only directed the third respondent in that appeal to consider those claims. Therefore the question of merger of the trial court judgment and decree in the judgment and decree in A.S. No.554 of 1997 does not arise. If that be so, application for amendment of the judgment and decree of the trial court could not have been presented in the appellate court. I therefore do not find any jurisdictional error committed by the learned Sub Judge in entertaining I.A. No.1003 of 2007. 5. Next question is whether it was within the power of learned Sub Judge to allow the application be it under Sec.152 of the Code or any other provision of law. I referred to the operative **C.R.P. No.159 of 2010** -: 7 :- portion of the judgment in O.S. No.170 of 1991. True, the operative portion of the judgment does not quantify the amount payable to the original plaintiff. Instead it says that defendants 1 to 4 are directed to take final measurement of the work done by the plaintiff and certain other directions are also issued in the matter of quantification of amount. But it is relevant to note that the trial court judgment and decree also enable the original plaintiff in case defendants 1 to 4 did not comply with the directions to realize the amount from the petitioner, other defendants and their assets. It is also pertinent to note from the operative portion of the trial court judgment and decree that Order NO.D2 1060/81 dated 08.11.1990 is declared as void ab initio and the declaration prayed for against the supplemental agreement is also allowed in favour of the original plaintiff. 6. True, that under Sec.152 of the code what is permissible is only correction or amendment of clerical error or arithmetical mistake in the judgments, decrees or orders or errors arising therein from any accidental slip or omission. In other words if there is any error arising in the judgment or decree on account of any accidental slip or omission it can be corrected under Sec.152 of the Code. I must also bear in mind that the ## **C.R.P. No.159 of 2010** ## -: 8 :- general power under Sec.153 of the Code empowers the court to amend any defect or error in any proceeding in a suit. 7. In the judgment of the trial court as the learned counsel for respondents pointed out, in paragraph 15 there is a finding that there was an additional cost of Rs.27,350/- incurred by the plaintiff for carrying out works in accordance with the revised design and structural particulars of the deep fill culvert. Further, in the same page there is a further observation that the estimation (according to the learned counsel for respondents, of the petitioner and other defendants) is unrealistic and even though petitioner and other defendants did not make any payment in lieu of the same, the original plaintiff has claimed an amount of Rs.37,584/- for the two 5 HP engine and pump sets which is not at all allowable (I am told that this claim was disallowed and was also subject matter of A.S. No.554 of 1997). Further down in the same page learned Judge has found that petitioner and other defendants admitted that Rs.28,727/- was due and payable to the original plaintiff. Then coming to paragraph 17 of the trial court judgment it is found that plaintiff is entitled to get extra rate of extra item and has made reference to ## **C.R.P. No.159 of 2010** ## -: 9 :- the Ext.29, letter dated 01.10.1989 whereby the original plaintiff was directed to attend the site for taking measurement. Further down in the same paragraph it is stated that petitioner and other defendants have computed the amount due and payable to the original plaintiff at Rs.1,28,396/- in Ext.B10 and Exts.B5 to B8 and that to that effect Rs.64,000/- was recovered by the petitioner and other defendants unauthorizedly under the alleged process of sale of rubble at Rs.9.27 for 6904 M3t is also to be added to the sum of Rs.1,28,396/- found due and payable to the original plaintiff. 8. Thus going by the judgment of the learned Sub Judge findings are entered in favour of the original plaintiff though in the operative portion there is a direction that final bill is to be prepared by petitioner and other defendants. Admittedly, no such final bill was prepared by the petitioner and other defendants. If that be so, as stated in the operative portion of the judgment it was within the right of the original plaintiff to realize amount from the petitioner, defendants 2 to 4 and their assets. 9. Now coming back to I.A. No.1003 of 2007 it is seen that learned Sub Judge has referred to the findings made in the judgment of the trial court and in paragraph 11 of the impugned ## **C.R.P. No.159 of 2010** ## -: 10 :- order referred to the statement filed by the respondents regarding quantification of the amount as per the findings in the judgments (learned counsel for respondents states that the decree as amended by the trial court is only based on the findings contained in the trial court judgment). Further details of the finding in the trail court judgment is also contained in paragraph 11 of the impugned order. Based on those findings appellate court found that total amount payable to the original plaintiff as per the judgment of the trial court dated October 20, 1994 is Rs.6,38,308/-. 10. I must bear in mind that judgment and decree of the trial court were passed on October 20, 1994 and so many years have now passed by. As aforesaid petitioner and other defendants did not challenge the said judgment and decree and hence that judgment and decree have become final (except to the extent the appellate court has directed the third respondent in the appeal to consider certain disallowed claims). 11. I must also bear in mind the events that took place subsequent to the judgment and decree of the trial court. Even before filing I.A. No.1003 of 2007 respondents had filed E.P. No.1097 of 1995 in the executing court. There, a vehicle ## **C.R.P. No.159 of 2010** ## -: 11 :- belonging to the Government was attached against which petitioner and other defendants came in Civil Revision No.2615 of 2001 and that Revision was disposed of by this Court on January 23, 2003. In paragraph 3 of the order it is stated that, “The impugned order (attaching vehicle) will stand suspended for three months on condition that within one month from the date of the order Government will file an application before the court below for return of the documents mentioned in the order in C.M.P. No.5533/2001 in which event the court below will allow that application and return the documents to the revision petitioner. The revision petitioner shall prepare the final bill and shall facilitate payment of all the amounts due to the respondent under the decree within another two months”. Concededly that direction was also not complied by petitioner and other defendant whatever be the reason thereof and in the meantime respondents filed I.A. No.1003 of 2007 for amendment **C.R.P. No.159 of 2010** ## -: 12 :- of the judgment and decree. 12. Having heard learned Government Pleader and counsel for respondents and gone through the judgment of the trial court I am inclined to think that it was necessary for the trial court while deciding the suit to mention what exactly are the amounts due to the original plaintiff on various counts. That was not done. May be it was possible for the trial court to pass a preliminary decree followed by a final decree and viewed in that sense the impugned order can be treated as an order on an application to pass a final decree. It is also possible to say that there was an accidental slip or omission. Viewed in that line and considering the fact that trial court judgment and decree were passed as early as on October 20, 1994 and either the original plaintiff or his legal representatives were not so far awarded the amount due to them and petitioner and other defendants did not take steps to do their part as directed in the operative portion of the judgment of the trial court, I am inclined to think that it was within the power of the learned Sub Judge to make necessary amendment to the judgment and decree to quantify the amount and make the decree executable. Equity and justice favour the respondents. That should not be defeated by ## **C.R.P. No.159 of 2010** ## -: 13 :- technicalities of procedure so far as the order does not suffer from any jurisdictional defect or illegality. I do not find justification to interfere with the impugned order. Civil Revision Petition is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv