Civil Revision Application No.271 of 1995

5th March, 2003

Petitioner Counsel: Mr. K.K. TATED
Respondent Counsel: Mr. S.M. KAMBLE

Cases Cited:
Firozshaw Vs. State, AIR 1957 Madhya Bharat 50 [Para 4]
Vallabhaneni Vimalamba Vs. Ghanta Ratnamma, AIR 1966 Andra Pradesh 26 [Para 4]
Jayalakshmi Coelho Vs. Oswald Joseph Coelho, AIR 2001 S.C. 1084 [Para 6]
K. Rajamouli Vs. A.V.K. N. Swamy, AIR 2001 S.C. 2316 [Para 7]
M/s. Plasto Pack, Mumbai Vs. Ratnakar Bank Ltd., AIR 2001 S.C. 3651 [Para 7]

JUDGMENT

JUDGMENT :- Heard learned Advocates for the parties. The petitioner challenges the order dated 31-8-1994 by which the District Judge, Raigad has dismissed the applications filed by the petitioner under Section 152 of the Code of Civil Procedure.

2. By application under Section 152 of Code of Civil Procedure, it was sought to be contended by the petitioner that after passing of the award by the Land Acquisition Officer under section 11 of the Land Acquisition Act, 1894 (hereinafter called as "the said Act"), the Government had granted ex-gratia payment of Rs.14,353=75 paise to the respondents. However, while enhancing the compensation in the reference case under section 18 of the said Act and while calculating the final figure of the amount of compensation payable to the respondent on account of such enhancement being granted, the Reference Court did not give credit to the said ex-gratia amount already paid to the respondent, and that, therefore, the award passed by the Reference Court needs to be amended giving credit to the said amount of ex-gratia payment.

3. Section 152 of the Civil Procedure Code envisages correction of clerical or arithmetical mistakes or errors arising from the accidental slip or omission. This Section clearly reveals the settled principles of law that the act of Court should prejudice none and that the Courts are duty bound to see to it that their records are true and represent correct state of affairs. Order XX Rule 4 of C.P.C. requires judgment to contain a concise statement of case, point for determination, the decision thereon and reasons for such decision. Further, Rule 5 thereof warrants the Court to give finding for decision on each issue with reasons. Rule 6(1) thereof specifically provides that the decree shall agree with the judgment and shall specify the relief granted or other determination of the suit. Being so, if the decree is not found to be in conformity with the judgment, certainly it would be the duty of the Court to correct and/or amend such decree to bring it in conformity with the judgment.

4. As far as the judgment is concerned, it can be corrected under the different eventualities specified in Section 152 of C.P.C. As far as mistakes are concerned, they should be either clerical or arithmetical and as regards the errors, they can be on account of accidental slip or omission. To decide as to what mistakes or errors can be corrected under Section 152 of C.P.C., the test is to examine whether the judgment as it stands represents the intention of the Judge at the time it was delivered and if it does, the alleged mistake or error cannot be said to be one which can be corrected in exercise of powers under Section 152 of C.P.C. For example, in a suit for specific performance, though it is decreed in favour of the plaintiff, but the Court omits to fix the period within which the plaintiff is required to pay the balance of consideration price and get the conveyance executed by the defendant, then in such a case certainly the Court having been moved for an appropriate order in that regard can certainly in exercise of powers under Section 152 of C.P.C. amend the judgment and decree by fixing the period or date for the same (vide Firozshaw Vs. State reported in AIR 1957 MADHYA BHARAT 50). Likewise, if a Court awards interest as claimed by the plaintiff; however, while calculating the amount in that regard refers to a wrong figure as the principal amount and in fact on which the interest is not claimed by the plaintiff, certainly such an error can be considered as being arithmetical mistake (vide Vallabhaneni Vimalamba Vs. Ghanta Ratnamma and another reported in AIR ANDHRA PRADESH 26)

5. The powers bestowed upon the Civil Courts under Section 152 of C.P.C. cannot be exercised to correct omissions, however erroneous which are intentional either in the sense that the Court meant to omit which was omitted or because they did not arise for consideration or were not to be required to be considered in the matter, and therefore, omitted. An error of the Court which is not an accidental slip or omission can not be remedied by taking recourse to the provisions of law under Section 152 of C.P.C.

6. The Apex Court in Jayalakshmi Coelho Vs. Oswald Joseph Coelho reported in AIR 2001 S.C. 1084 has held that the power to rectify under Section 152 of C.P.C. is not a power to give second thought over the matter and is confined to something initially intended by the Court but left out or added against such intention. It was ruled that:

" 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 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 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, CPC. It is to be confined to something initially intended but left out or added against such intention."

7. In K. Rajamouli Vs. A.V.K. N. Swamy reported in AIR 2001 S.C. 2316 it was held that the omission to grant pendente lite interest to the decree holder by the arbitrators and trial Court cannot be held to be accidental omission or mistake and therefore, cannot be corrected under Section 152 of Code of Civil Procedure. Similarly in M/s. Plasto Pack, Mumbai and another Vs. Ratnakar Bank Ltd. (AIR 2001 S.C. 3651) in a suit field by Bank for recovery of its dues, the Court had granted some of the reliefs as prayed in the plaint without specifying the exact decretal amount and the rate of interest allowed by the Court. Such of the prayers as were not granted by the decree being deemed to have been refused and to that extent the suit being deemed to have been dismissed, it was held that the Court below after a period of two years and eight months from the passing of such decree could not have substituted the same by almost new decree by granting such reliefs as were not granted earlier, by exercising the powers under Section 152 of the Code of Civil Procedure.

8. Undisputedly, in the case in hand the fact about the payment of ex-gratia amount of Rs.14,353=75 ps. in addition to the amount awarded as compensation under the said Act was not brought to the notice of the Reference Court by the Petitioner while defending the proceedings under Section 18 of the said Act. Being so, neither the fact that certain amount was paid as ex-gratia payment after the declaration of the award by the Land Acquisition Officer nor the question as to whether such payment could be treated as the part of the compensation payable for acquisition of land, were made subject matter of the adjudication before the Reference Court. Being so, the said ex-gratia amount could not have been formed part of the award passed by the Reference Court under Section 18 of the said Act. Hence, the question of giving credit to the said ex-gratia amount by amending the award of the Reference Court does not arise at all.

9. Considering the well settled law on the point in issue and the facts and circumstances of the case in hand, the failure on the part of the petitioner to bring to the notice of the Reference Court the fact of ex-gratia payment subsequent to the award by the Land Acquisition Officer as well as that the said payment had been in addition to the amount awarded as compensation under the said Act and that, therefore, it was required to be considered as part of the compensation awarded to the respondent in relation to the acquired land cannot be said to be a mistake or omission on the part of the Reference Court either in the award passed by it or decree drawn on the basis of its award and the same cannot be a ground for amendment of the award under Section 152 of C.P.C.

10. For the reasons stated above, the Court cannot be said to have acted illegally or in improper exercise of jurisdiction while rejecting the application under section 152 of C.P.C. filed by the petitioner and, therefore, there being no jurisdictional error committed by the Court below, no interference is called for in the impugned order in the revisional jurisdiction and, therefore, the revision application fails and is hereby dismissed. Rule is discharged with no order as to costs.

Application dismissed.