This Revision petition has been filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') against the order dated 21.12.2004 made in I.A.No.492 of 2004 in O.S.No.932 of 1995 on the file of the Additional Sub Court, Salem.
2. The third defendant in the suit is the petitioner herein and the first respondent is the plaintiff. The plaintiff filed the suit for specific performance of the agreement for sale, dated 12.12.1991, as Exhibit-A1. The third defendant was a subsequent purchaser of the suit property. The defendants 1 & 2 were the persons, who executed the agreement in favour of the plaintiff. Though the defendants 1 & 2 contested the suit claim by filing a written statement, they have not participated in the trail, the petitioner/third defendant alone contested the suit. The Trail Court framed nine issues for consideration of which issue No.3 would be relevant for the purpose of this case. Issue No.3 is whether the purchase of the suit property made by the third defendant by sale deed dated 11.02.1992 is a bonafide transaction. Before the Trail Court, the plaintiff examined himself as PW-1 and two other witnesses were examined as PW2 & PW3 and nine documents were marked as Exhibits A1 to A9. The third defendant examined himself as DW-1 and one Mr.Magalingham was examined as DW-2 and 17 documents were marked on the defendants as Exhibits B1 to B17. The suit was decreed by the Trail Court by Judgment and decree dated 10.02.2004.
3. Thereafter, the plaintiff/first respondent herein filed I.A.No.492 of 2004 under Section 152 CPC, and prayed for correction of the Judgment and decree made in the suit. It was contended by the first respondent that the prayer in the suit for specific performance was decreed against the defendants 1 to 3 and paragraph 24 of the Judgment, the Court below gave a finding that the plaintiff is entitled to relief as prayed for, but in the Judgment and decree, it has been passed only against the defendants 1 & 2 not against the defendants 1 to 3. According to the first respondent, it was an accidental slip and error and it is a clerical mistake. Further, it was contended that the Trail Court gave a categorical finding that the purchase of the third defendant was not bonafide. Another rectification which was sought for is with regard to name of the Hon'ble Presiding officer in the Judgment. This application in I.A.No.492 of 2004 was opposed by the petitioner herein stating that the petitioner is a bonafide purchaser for value without notice of the alleged agreement for sale Exhibit A1, and in the body of the Judgment, it has been stated that the property purchased by the third defendant is different from the property agreed to be sold by the defendants 1 & 2 under the suit agreement and this is a finding by the Court and it is not an accidental slip or error and the first respondent cannot take recourse to Section 152 CPC and his remedy is only to file an appeal against the said Judgment and decree. The Trail Court by its order dated 21.12.2004 allowed the application as prayed for. Aggrieved by the same, the petitioner is before this Court by way of this revision.
4. The learned counsel appearing for the petitioner would contend that a clear finding has been recorded by the Court below that the property purchased by the petitioner/third defendant is different from the property agreed to be sold to the plaintiff under the suit agreement and in view of such finding, Judgment and decree cannot be amended by filing an application under Section 152 CPC. Further, it is contended by the learned counsel that the Court below consciously granted the decree only against the defendants 1 & 2 and not against the third defendant and the Court has no power to correct the decree. In support of his contention, the learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in Nainsingh vs. Koonwarjee and others, AIR 1970 SCC 997, Jayalakshmi Coelho vs. Oswald Joseph Coelho, AIR 2001 SC 1084 and the decision of the Andhra Pradesh High Court in Merangani Rama Swamy & Co. and another vs. Srinivasa Gunny Trading Company, Bhimavaram, AIR 1992 AP 303. It is further contended that even assuming without admitting that the plaintiff is aggrieved his remedy is only by way of review or to file a regular appeal and a petition under Section 152 CPC is not maintainable.
5. Per contra, the learned counsel appearing for the respondents would contend that there is no such finding rendered by the Court below as stated by the learned counsel for the petitioner, but the identity of the property is only the argument put forth by the learned counsel for the petitioner before the Trial Court and that such a stand was not taken by the third defendant in the written statement and there was no evidence to that effect. Further, the learned counsel would submit that a careful reading of the entire Judgment would clear by show that it is only a inadvertent error or a clerical mistake and the power under Section 152 CPC was rightly invoked by the Trail court.
6. I have carefully considered the submissions made on either side and perused the materials available on record.
7. The sheet anchor of the argument of the learned counsel for the petitioner is that the Trail Court in paragraph 16 of the Judgment has rendered a finding by stating that there is a difference in the identity of the property namely, the property which was purchased by the third defendant and the property in the suit agreement, I have carefully perused the entire Judgment and the observation in paragraph 16 and the same cannot be construed to be a finding rendered by the Court. As pointed out by the learned counsel appearing for the respondent, it is one of the contention raised by the learned counsel for the third defendant/petitioner in the course of argument before the Trail court. This is fortified from perusal of paragraph 7 of the Judgment in which the defence raised by the third defendant in his written statement has been elaborately and explicitly set out. Admittedly, no such defence has been raised in the written statement as regards the identity of the property. In such factual situation, this Court has no hesitation to hold that the observations in paragraph 16 cannot be taken to be a finding rendered by the Court below.
9. Having held that the observation in paragraph 16 of Judgment of the Trail Court is not a finding given by the Court, the next question which has to be examined is as to whether the first respondent was entitled to invoke Section 152 CPC. Under Section 152 CPC, the Court has powers not only to correct clerical or arithmetical mistake in Judgments or orders, but also errors arising therein from any accidental slip or omission and such correction can be carried out by the Court at any time without even a formal application. In Jayalakshmi Coelho, referred supra, the Hon'ble Supreme Court while examining the scope of Section 152 CPC observed held as follows:-
15.... 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 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 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 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 courts 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.
10. In terms of the law laid down by the Hon'ble Supreme Court referred supra, before the Court exercises its power under Section 152 CPC, it must be satisfied that the decree ought to have been passed in a particular manner, but that intention is not translated into the decree or order due to clerical, arithmetic error or accidental slip and the facts and circumstances of the case may provide a clue as to what was intended by the Court. The Hon'ble Supreme Court has further held that the power of rectification does not empower the Court to have a second thought over the matter.
11. Bearing the legal principle in mind if the case on hand is examined, it is seen that the plaintiff filed a suit for specific performance against all the three defendants. A specific plea was raised that the third defendant was supplying silver jewellery to the defendants 1 and 2 and the sale deed executed in his favour on 11.12.1992 is not a bonafide transaction. On the pleadings made by the parties, the Trail Court framed a specific issue (Issue No.3) as regards the bonafide of the sale transaction dated 11.02.1992. It is not in dispute that the issue No.3 was decided in favour of the plaintiff while doing so, the Court gave cogent reasons, took note of the conduct of the defendants 1 & 2 in abandoning the proceedings midway and held that the sale deed dated 11.02.1992 said to have executed in favour of the petitioner/third defendant is not a bonafide transaction. Further, while answering issue No.8, the Trail Court also took note of the fact that no documentary evidence has been produced by the third defendant and such a stand has been taken by the third defendant because, he was the employee of the defendants 1 & 2 in the silver business. Therefore by taking note of the decision rendered in favour of the plaintiff on issue Nos.1,3,4 and 7, issue No.8 was decided in favour of the plaintiff and the suit was decreed as prayed for.
12. Thus as per the law laid down by the Hon'ble Supreme Court in the decision referred supra, we are in a position to have a clue as to what was intended by the Court while granting the relief. Therefore, it is not a case, where the Court on a second thought came to a different conclusion, but the entire Judgment dated 10.02.2004 clearly proceeds in favour of the plaintiff and the suit has been decreed as prayed for. In such view of the matter, the Trail Court correctly exercised its jurisdiction under Section 152 CPC and granted the relief.
13. For all the above reasons, there is no merit in this revision petition and the same is dismissed. No costs.
22.12.2010 Index :Yes/No Internet:Yes/No pbn To Additional Sub Court, Salem.
T.S.SIVAGNANAM J.
pbn Pre-Delivery Order in CRP (NPD) No.469 of 2005 22.12.2010