BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26/02/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(NPD)No.422 of 2004
C.R.P.(NPD)No.423 of 2004
and
CRP(PD)(MD)No.1925 of 2009
and
M.P.(MD)No.1 of 2004
In CRP(NPD)No.422 of 2004
1.Sornalatha
2.Velmurugan
3.Uma
4.Easwara Pillai ... Petitioners/LRs of the
3rd Defendant
vs
1.Ramadhas ... 1st Respondent/Plaintiff
2.Arumugam Pillai (died) ... 2nd Respondent/1st Defendant
3.Sree Easwaradhas ... 3rd Respondent/2nd Defendant
4.Lakshmi: ... 4th Respondent/LR of R2
[R4 brought on record as
LR of the deceased R2,
vide order of the court
dated 06.01.2010
made in M.P.No.1 of 2009]
Prayer in CRP No.422 of 2004: Civil Revision Petition filed under section
115 of C.P.C, against the order and decretal order of the learned Subordinate
Judge, Padmanabhapuram in I.A.No.1429 of 2002 in O.S.No.21 of 1996, dated
14.10.2003.
CRP(NPD)No.423 of 2004
1.Sornalatha
2.Velmurugan
3.Uma
4.Easwara Pillai ... Petitioners/LRs of the
3rd Defendant
vs
1.Ramadhas ... 1st Respondent/Plaintiff
2.Arumugam Pillai (died) ... 2nd Respondent/1st Defendant
3.Sree Easwaradhas ... 3rd Respondent/2nd Defendant
4.Lakshmi ... 4th Respondent/LR of R2
(R4 brought on record as
LR of the deceased R2
vide order made in
M.P.(MD)No.1 of 2009
dated 06.01.2010)
Prayer in CRP No.423 of 2004: Civil Revision Petition filed under section
115 of C.P.C, against the order and decretal order of the learned Subordinate
Judge, Padmanabhapuram in I.A.No.417 of 2003 in O.S.No.21 of 1996, dated
14.10.2003.
CRP(PD)(MD)No.1925 of 2009
1.Swarnalatha
2.Velmurugan
3.Easwara Pillai ... Petitioners/D1 to 3
vs
1.A.Sree Eawaradhas ... 1st Respondent/Plaintiff
2.Ramadhas ... 2nd respondent/4th Defendant
Prayer in CRP(PD)(MD)No.1925 of 2009: Civil Revision Petition filed under
Article 227 of the Constitution of India,to set aside the order decreetal order
passed in I.A.No.231 of 2009 in O.S.No.33 of 2009, dated 26.10.2009, on the file
of the Subordinate Judge, Padmanabhapuram.
!For Petitioners ... Mr.K.Sreekumaran Nair
^For Respondents ... Mr.M.P.Senthil
:ORDER
Heard both sides.
2.O.S.No.21 of 1996, on the file of the Subordinate Judge,
Padmanabhapuram, was filed by the first respondent herein against his father and
two brothers and his father Arumugam Pillai was the first defendant and his
brother, Sree Easwaradhas was the 2nd defendant and Raghavadhas was the 3rd
defendant in the suit. That suit was filed for partition of the first
respondent’s 1/4th share in the suit property and in that suit, a compromise was
arrived at among the parties and as per the memo of compromise, the suit
schedule item No.19 in Survey No.390/2, of an extent of 19.250 cents, with
building thereon was allotted to the share of the 2nd defendant in the suit,
namely Easwaradhas and the remaining extent of 65.750 cents in Survey No.390/2
was allotted to the share of Raghavadhas, the 3rd defendant in that suit. A plan
was also attached to the memorandum of compromise and in that plan, 19.250 cents
in Survey No.390/2 was marked as ‘A plot and an extent of 65.750 cents in Survey
No.390/2 was marked as ‘B C D E’ Plots. But due to inadvertence, while writing
the memo of compromise, it was stated that the property that was allowed to the
share of A.Sree Easwara Dhas, the 2nd defendant, having 19.250 cents in Survey
No.390/2 was mentioned as ‘B’ Plot and an extent of 65.750 cents in Survey
No.390/2 was mentioned as ‘A’ plot. As stated supra in the plan, 19.250 cents
was shown as ‘A’ part and 65.750 cents was shown as ‘B C D E’ and the total
extent in survey No.390/2, after adding ‘A B C D E’ is equivalent to 84 cents.
Based on the memo of compromise with plan, a final decree was also passed on
15.04.1999. The parties were enjoying their respective extents as per the decree
and later the legal-heirs of Raghavadhas, the 3rd defendant, found that in the
plan annexed to the compromise memo, an area of 65.750 cents in Survey No.390/2
was marked as ‘B C D E’, but in the memo of compromise, it was descried as ‘A’
Plot and similarly, while describing the property allotted to Sree Easwara Dhas,
the 2nd defendant, an extent of 19.250 cents in Survey No.390/2 was mentioned as
‘A’ plot in the plan, but in the compromise memo it was mentioned as ‘B’ plot
and therefore, the decree has to be amended by substituting ‘B’ for ‘A’ and
substitute ‘A’ as ‘B C D E’ for the same relief. The two IAs viz., I.A.1429 of
2002 and 417 of 2003 were filed and these applications were dismissed by the
lower court and hence, the two revisions viz. CRP.Nos.422 and 423 of 2004 were
filed by the revision petitioners.
3.Mr.K.Sreekumaran Nair, the learned counsel appearing for the revision
petitioners submitted that a mistake has crept in the decree and also in the
memorandum of compromise and while effecting partition and allotting the
properties, the plaintiffs and the defendants in that suit, instead of
mentioning ‘A’ plot, having an extent of 19.250 cents, in Survey No.390/2
allotted to Sree Easwaradhas, the 2nd defendant, it was mistakenly stated in the
memo of compromise that an extent of 19.250 cents in Survey No.390/2 is situate
in ‘B’ plot as per the plan annexed to the memorandum of compromise and
similarly, the remaining extent in Survey No.390/2, of an extent of 65.750 cents
has been mentioned in the compromise memo as ‘A’ Plot whereas the entire extent
of 65.750 cents is situate in the portion ‘B C D E’ in the plan attached to the
compromise memo and therefore, as a result of that on the basis of the
compromise decree, final decree was also passed incorporating the same terms and
instead of mentioning ‘A’ plot, it was mentioned as ‘B’ plot in the property
allowed to Sree Easwaradhas and instead of mentioning ‘B C D E’ plots, it was
mentioned as ‘A’ plot, in respect of the properties allotted to Raghavadhas, the
first defendant and that mistake has to be rectified.
4.He further submitted that the parties are enjoying the respective
extents, after the compromise and in the plan also, it has been stated that ‘A’
Plot is having an extent of 19.250 cents allotted to Sree Easwaradhas and ‘B C D
E’ Plots, of a total extent of 65.750 cents, were allotted to Raghavadhas, but
in the memorandum of compromise, it was wrongly mentioned as ‘B’ Plot for Sree
Easwaradhas and ‘A’ Plot for Ragavadhas.
5.He further submitted that Survey No.390/2 is having a total extent of 84
cents and the entire extent in survey No.390/2 was allotted only to Sree
Easwaradhas and Raghavadhas and therefore, there is no dispute regarding the
total extent in Survey No.390/2 and there is no dispute regarding the extent of
property allotted to Sree Easwaradhas and Raghavadhas as per the compromise and
hence, as per the plan, the property allotted to Sree Easwaradhas is in the
portion shown as ‘A’ and the property allotted to Raghavadhass is in the portion
shown as ‘B C D E’ and hence, as per the plan, a compromise decree has to be
corrected and it is a clear case of clerical error and no prejudice would be
caused by correcting the mistaking that has crept in, in the compromise decree.
6.He further relied upon the judgment of the Honourable Supreme Court
reported in 2001(6) SCC 688, in the case of Salkia Businessmen’s Association and
others vs. Howrah Municipal Corporation and others, 2001(4) SCC 181, in the case
of Jayalakshmi Coelho vs Oswald Joseph Coelho and 2004(1) MLJ 61(SC) in the case
of State of Punjab vs. Darshan Singh.
7.On the other hand, the learned counsel appearing for the respondents,
Mr.M.P.Senthil, submitted that as per the memorandum of compromise, Plot ‘A’ was
allotted to Raghavadhas and ‘B’ plot was allotted to Sree Easwaradhas and as per
the compromise, a decree was drafted and hence, there is no error or mistake in
the decree and the decree cannot be amended by resorting to Section 152 CPC.
8.He further submitted that without amending the compromise memo, the
decree cannot be amended as the decree was passed only on the basis of memo of
compromise and as per Order 23 Rule 3, the Court shall pass a decree in
accordance with the compromise and in this case, the decree was passed in
accordance with compromise and there is no error in the decree, it cannot be
rectified.
9.The point for consideration, in both the civil revision petitions, is:
“Whether the compromise decree passed in O.S.No.21 of 1996 is to be
amended, as there is a clerical mistake, while drafting the decree as alleged by
the petitioners?
10.In this case, it is not in dispute that there was a compromise entered
into between the parties and as per the compromise, the properties were divided
and as per the terms of compromise and plan attached to that, a compromise
decree was passed. I.A.No.417 of 2003 was filed by the revision petitioners
against the plaintiff and the defendants in O.S.No.21 of 1996 and for the same
relief, I.A.No.1429 of 2002 was also filed by the petitioners, which gave raise
to these revision petitions.
11.It is contended by the 3rd respondent, Sree Easwaradhas that as per the
compromise, Item No.19 comprised in Survey No.390/2 was divided into five plots
and numbered as ‘A’ to ‘E’ plots and ‘C D E’ were left un-allotted and as per
the compromise, Plot ‘A’ was allotted to the 3rd defendant viz., Raghavadhas and
no building was allotted to him and the family building is situate in Plot ‘B’
and the same was allotted to him and he was given 19.250 cents in Plot ‘B’. The
father Arumugam Pillai, the 2nd respondent herein, contended that Item No.19
viz., in Survey No.390/2 was divided into five plots ‘A’ to ‘E’ and Sree
Easwaradhas, the 3rd respondent in these revision petitions, was allotted ‘A’
plot in the plan having 19.250 cents and the building situate therein and plots
‘B C D E’ having an extent of 64.750 cents including the building No.11-38/24
was allotted to Raghava Dhas, who is predecessor in title of the petitioners and
building No.11-38/24 and in the compromise memo as well as in the decree, it was
mistakenly stated that ‘A’ Plot is having an extent of 64.750 cents and it was a
mistake and 64.750 cents is situate in Plot ‘B C D E’ and those extent of 64.750
along with the main building was allotted to Raghava Dhas and Plot ‘A’, having
an extent of 19.250 cents was allotted to Sree Easwara Dhas and after the
allotment of properties, Sree Easwara Dhas, the 3rd respondent herein, shifted
his residence to the portion marked as ‘A’ in the plan, of an extent of 19.250
cents and Raghava Dhas was also put up a compound wall on the western side of
the Plot ‘B’ and he took possession and therefore, he supported the case of the
petitioners. Therefore, from the counter filed by the parties, it is seen that
the father, Arumugam Pillai, supported the case of the petitioners and he has
accepted that by mistake, in the memorandum of compromise, instead of stating
‘A’ plot allotted to Sree Easwara Dhas, it was wrongly mentioned as ‘B’ plot and
instead of stating ‘B C D E’ plots to Raghava Dhas, it was wrongly mentioned as
‘A’ Plot. The 2nd respondent herein is the father of the revision petitioners
and the 1st and 3rd respondents are his sons and the predecessor in-title of
the petitioners viz., Raghava Dhas, was also one of his son. The father,
Arumugam Pillai, further stated in the counter that after the allotment of
properties Sree Easwara Dhas shifted his residence to Plot ‘A’ mentioned, as per
the plan and is in enjoyment of 19.250 cents and Raghava Dhas was in enjoyment
of 64.750 cents along with the building therein and he has also put up a
compound wall. As stated supra, the total extent in Survey No.390/2 is only 84
cents and 19.250 cents was allotted to Sree Easwara Dhas, the 3rd respondent
herein.
12.It is evident from the plan attached in the compromise memo, the
portion shown as ‘A’ Plot is having an extent of 19.250 cents and that is also
the western portion. Therefore, as per the plan and as per the enjoyment of the
property by Sree Easwara Dhas, the property was shown as ‘A’ Plot in the plan
and was allotted to Sree Easwara Dhas, the 3rd respondent herein. Therefore, in
the compromise memo, instead of mentioning ‘A’ plot in Survey No.390/2, of an
extent of 19.250 cents, it was mentioned as ‘B’ Plot. Hence, according to me, it
is a mistake.
13.Further, the contention of the 3rd respondent that Raghava Dhas was
allotted ‘B’ Plot of the suit property, that is having an extent of 47.250 cents
and Plot ‘C D E’ were not allotted to anybody. The 3rd respondent and Raghava
Dhas are the parties concerned in this dispute. The 3rd respondent accepts that
he was allotted 19.250 cents. According to him, as per compromise, Plot ‘A’ was
allotted to Raghava Dhas. If Plot ‘A’ was allotted to Raghava Dhas, then Raghava
Dhas would have been given only 19.250 cents. But admittedly, Raghava Dhas was
given 64.750 cents. Further, if ‘B’ Plot was allotted to Sree Easwaradhas, as
now contended by him, he would have been allotted 47.250 cents. According to
him, he was allotted only 19.250 cents. Therefore, the contention of the 3rd
respondent cannot be accepted and in my opinion, an extent of 19.250 falls
within ‘A’ marked portion and an extent of 64.750 falls within ‘B C D E’ marked
portion.
14.It is also admitted that the parties are enjoying their respective
portions. Hence, taking into consideration of all these aspects, it is clear
that plot ‘A’ was allotted to Sree Easwaradhas, the 3rd respondent herein and
Plot ‘B C D E’ were allotted to Raghava Dhas, whose legal-heirs are the
petitioners.
15.Mr.M.K.Senthil, the learned counsel appearing for the 3rd respondent
submitted that in this case, there is no mistake or clerical error in the decree
and even in the compromise memo, it has been stated that Plot ‘B’ was allotted
to Easwara Dhas, of an extent of 19.250 cents and Plot ‘A’ of extent of 65.750
cents was allotted to Raghava Dhas. The compromise decree was drafted in
consonance with compromise memo filed by the parties and as per Order 23 Rule 1
CPC, compromise decree has to follow the compromise memo and hence, the same
cannot be amended.
16.The learned counsel appearing for the revision petitioners relied upon
the judgments reported in 1999(3)SCC 500, in the case of Dwaraka Das vs. State
of M.P. and another, 2001(4) SCC 181, in the case of Jayalakshmi Coelho vs.
Oswald Joseph Coelho, 2001(6) SCC 683 in the case of Plasto Pack, Mumbai and
another vs. Ratnakar Bank Ltd., 2001(6) SCC 688, in the case of Salkia
Businessmen’s Association and other vs. Howrah Municipal Corporation & others
and 2004(1) MLJ 61(SC), in the case of State of Punjab vs. Darshan Singh.
Relying upon those judgments, he submitted that it has been made clear by the
Honourable Supreme Court, mistakes resulting from arithmetical or clinical
errors or accidental slip in judgment or decree, which may prejudice the cause
of any party, held, must be rectified, but rectification must be limited to
something originally intended to be included and which is erroneously left out
or something which has been included contrary to the original intention and
power under Section 152 C.P.C cannot be used to improve upon a case.
17.As stated supra, as per the plan annexed to the Commissioner’s report,
Plot ‘A’ is having an extent of 19.250 cents and Plots ‘B,C,D,E’ are having a
total extent of 64.750 cents and Easwara Dhas was allotted 19.250 cents and
Raghava Dhas was allotted 64.750 cents. Therefore, if we go by extent, Plot ‘A’
was allowed to Easwara Dhas and Plots ‘B,C,D,E’ were allotted to Ragava Dhas.
The problem arises that in the compromise memo, it has been stated that Easwara
Dhas was allotted Plot ‘B’ having an extent of 19.250 cents and Ragava Dhas was
allotted 64.750 cents in Plot ‘A’. Admittedly, Plot ‘A’ as per plan does not
have more than 19.250 cents. Of Course, from Plot ‘B’, 19.250 cents can be
culled out, having regard to the larger extent and the intention of the parties
was spoken to by the Arumugam Pillai, the father and having regard to the
extent, Plot ‘A’ must have been allowed to Eawara Dhas and ‘B,C,D,E’ must have
been allowed to Ragava Dhas. Therefore, a mistake has crept in, while drafting
compromise memo, which was also followed in the compromise decree. Hence, the
question now arise is whether that mistake can be rectified under section 151
and 152 of C.P.C. Even though, Section, 151 & 152 CPC deals with mistake
committed in Court, in this case, a mistake has been committed by the party in
drafting the compromise memo and that has been also carried out in the
compromise decree. Therefore, in my opinion, Section 151 and 152 of C.P.C can be
invoked in this case, as it is only a mistake committed by the parties in
drafting the compromise memo.
18.It has been held in 1999(3) SC 500, at page 504, in the case of Dwaraka
Das vs. State of M.P and another, the inherent power under Section 152,
contemplates the correction of mistakes by the court of its ministerial actions
and does not contemplate of passing effective judicial orders. The corrections
contemplated are of correcting only accidental omissions or mistakes and not all
omissions and mistake which might have been committed by the court while passing
the judgement, decree or order.
19.It has been held in 2004(1) MLJ 61 (S.C), in the case of State of
Punjab vs. Darshan Singh, that an arithmetical mistake is a mistake of
calculation a clerical mistake is a mistake in writing or typing whereas an
error arising out of or occurring from accidental slip or omission is an error
due careless mistake on the put of the court liable to be corrected.
20.In the judgment reported in 2001(4) SCC 181 in the case of Jayalakshmi
Coelho vs. Oswald Joseph Coelho, it has been held that “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 fact and circumstances may provide
clue to the fact as to what was intended by the court but unintentionally the
same does not find 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 accidents 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 the 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 the 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.”
Therefore, the above judgments of the Honourable Supreme Court makes it clear
that what the parties have intended to be drawn up in the decree, which was
accepted by the court can be rectified if the decree is otherwise.
21.As matter of fact, the judgment reported in AIR 1959 Madras 194, in the
case of Ramaya Pillai vs. Ratnaswami Pillai and others, it has been held that
Section 152 Civil Procedure Code is wide enough to include a compromise decree.
It does not restrict itself to decrees passed other than compromise decrees.
Even in compromise decrees, if there are clerical or arithmetical mistakes,
certainly they can be rectified.
22.Further, it is contented by Eawara Dhas that Plots C,D,E’ were not
divided so far and ‘A’ Plot was allotted to Ragava Dhas and ‘B’ Plot was
allotted to him. If the contention of Eawara Dhas is accepted, then ‘C,D,E’ are
to be partitioned. Admittedly, till date the parties have not applied for
partition of Plots ‘C,D,E’. Therefore, it is accepted by the parties by their
conduct that ‘A’ Plot was allotted to Easwara Dhas and Plots ‘B,C,D,E’ were
allotted to Ragava Dhas and that was the reason for not filing any partition
suit by the parties for dividing ‘B,C,D,E’ Plots.
23.In this case, as stated supra admittedly, Easwara Dhas is enjoying Plot
‘A’, having an extent of 19.250 cents as shown in the plan and the legal-heirs
of the Ragava Dhas are enjoying Plot ‘B,C,D,E’ of an extent of 65.750 cents as
shown in the plan and therefore, it is only a mistake that has been crept in, in
the compromise decree and hence, the court can use its inherent power under
Section 151 and 155 CPC, to rectify the mistake. The lower court has not
properly appreciated the aforesaid provisions and therefore, the order of the
lower court is set aside and accordingly, C.R.P.(NPD)Nos.422 & 423 of 2004 are
allowed. Consequently, connected Miscellaneous Petition is closed. No costs.
24.CRP(PD)(MD)NO.1925 of 2009: This civil revision petition is filed by
the legal-heirs of Ragava Dhas. Easwara Dhas, the first respondent, in this
civil revision, filed O.S.33 of 2009, on the file of the Sub Court,
Padmanabhapuram, for injunction restraining the defendants therein from putting
up any new boundaries, buildings or cutting or removing trees or from
interfering with his joint possession of the properties mentioned therein. The
schedule of properties mentioned in the suit are the properties covered under
schedule ‘C,D,E’ in O.S.No.21 of 1996 and in the plaint, he has submitted that
in the suit O.S.No.21 of 1996, he was allotted Plot ‘B’ and the Plot ‘A’ was
allotted to Ragava Dhas and ‘C,D,E’ were not allotted to anybody. Plot
‘B,C,D,E’ mentioned in the plan annexed to the compromise memo in O.S.No.21 of
1996 are the subject matter of the suit O.S.No.33 of 2009 and it is alleged that
they are enjoyed in common by him and his brother and the coconut trees were
grown and the legal-heirs of Raghava Dhas are attempting to put up boundaries
and constructions in those properties and for the purpose, he filed the suit. In
that suit, the revision petitioners herein filed a written statement stating
that there was a mistake in the compromise memo filed therein and the same was
carried out in the compromise decree and it has been wrongly stated that Plot
‘B’ consisting of 19.250 cents was allotted to Easwara Dhas and it is only Plot
‘A’ of an extent of 19.250 cents allotted to Easwara Das and instead of stating
‘B’ of an extent of 65.750 cents, it has been wrongly stated as ‘A’ Plot
consisting of 65.750 cents and it was only a mistake and the mistake has been
rectified by filing application before this court and therefore, the first
respondent has no right or title to the schedule property and he is not entitled
to decree as prayed for. Along with the suit, the first respondent filed E.A.231
of 2009 in O.S.No.33 of 2009 for the appointment of a Advocate Commissioner to
pluck the coconuts from the trees and that was also ordered by the lower court
and against the same, this civil revision is filed by the revision petitioners.
25.I have already held in CRP(NPD)(MD)Nos.422 & 423 of 2004 that 19.250
cents in Plot ‘A’ was allotted to Easwara Dhas and 65.750 cents in Plots
‘B,C,D,E’ were allotted to Ragava Dhas and in the compromise memo and in the
decree instead of stating ‘A’ plot, it was stated as ‘B’ plot and instead of
stating ‘B,C,D,E’ Plots, it has been stated as Plot ‘A’ and therefore, the
decree has to be amended and the decree was also amended as per the order in
CRP.No.422 and 423 of 2004 and hence, as per the amended decree, the first
respondent herein, who is the plaintiff in O.S.No.33 of 2009 has no right or
title over the Plots ‘B,C,D,E’ and the revision petitioners, who are the legal-
heirs of the Ragava Dhas, are entitled to pluck coconuts.
26.Hence, the order of the lower court cannot be sustained, as there is no
need to appoint a commissioner in the said suit. Accordingly, CRP(PD)(MD)No.1925
of 2009 is allowed. Consequently, connected Miscellaneous Petition is closed. No
costs.
er
To,
The Subordinate Judge,
Padmanabhapuram.