Saheeda
v.
Hamelatha
(High Court Of Kerala)
Civil Miscellaneous Petition No. 1182 Of 2002 | 29-08-2002
1. This is a petition seeking amendment of the decree.
2. The suit is filed by the plaintiff for specific performance of an agreement for sale dated 21.9.1977 and also for damages. The plaint schedule consists of two items of properties. Item No.1 is a theatre by name Sangam Theatre with land, building, furniture and equipments etc. and item No. 2 is Pushpa Theatre with land, building, furniture and equipments etc. When there was an agreement for sale and there was a failure to perform the terms thereon. The plaintiff instituted the suit for specific performance. The suit was decreed in part directing the plaintiff to hand over possession of the properties on receiving an amount of Rs. 2,07,434.67. But in the judgment it is specifically stated in Para.41 as follows:
"On paying this amount of Rs. 2,07,434.67 the plaintiff shall vacate and hand over possession. The accounts are settled accordingly".
It was also observed at page 42 of the trial court judgment as follows:
"In view of the finding on issue No. 2 to 4, the plaintiff is not entitled for any specific performance. On paying Rs. 2,07,434.67 the plaintiff shall vacate and hand over possession".
3. But when the decree was drawn up, the decree reads as follows:
"That the defendant No. 3 do pay a sum of Rs. 2,07,434.67 to the plaintiff and vacate and hand over possession of the properties".
4. Thus, the amount has to be paid by the defendant whereupon the plaintiff has to vacate and hand over possession of the properties to the defendant which is clear from the judgment as is referred to above. Therefore, there is an omission of the word who shall vacate after the word plaintiff in the decree to indicate that, the plaintiff is to vacate the premises on receipt of the amount. Hence praying that the decree be amended, the above petition is filed.
5. Against the judgment and decree of the court below an appeal was preferred before this Court as A.S. 167 of 1990 and thereafter a further appeal as A.F.A. 99 of 1994 before a Division Bench of this Court against the judgment of the learned Single Judge. A.F.A. 99/1994 along with A.F.A. 100/1994 and 101 of 1994 and A.S. 422 of 1996 was disposed of by a common judgment. The opinion among the two judges who heard the matter was divided, one of whom dismissing the appeal A.S. 422 of 1996 and partly allowing A.F.A. Nos. 99,100 and 101 of 1994 and the other allowing A.S. 422 of 1996 and dismissing A.F.A. Nos. 99,100 and 101 of 1994. However, since there was no divergence on point of law but the difference was only on question of fact, applying the principles contained in S.98 of the Code of Civil Procedure the decree appealed against stood confirmed as per the order of the court dated 19th January, 2001. According to the petitioner, the judgment and decree of the Sub Court, Kozhikode having merged with the judgment and decree of this Court, he filed this petition for necessary relief to amend the decree supplying the omission as follows:
"1. In the prayer portion of the Decree the word plaintiff shall may be inserted after and before vacate in between line No. 3 and 4.
2. After the sentence that "the parties do bear their respective cost" and before Item No.1 at Page No. 3 the following may be included:
Schedule
Item No.1
All that piece or parcel of land or ground situate lying and being in Nagaram Amsom, Kozhikode Taluk, Calicut City bearing Ward No. 16, Block No. 14, T. Survey No. 191/2, Puthukudi paramba, at Railway Station Road, Calicut with the super structure of cinema house built, constructed or standing thereon known as "Sangam Theatre" fully equipped with 70 MM Screen, two R.C. Gevestor double Projectors, 70/35 MM slide projector, two Blue Star Air conditioners, Generators, Motors Fans and Auditorium with 1200 seats fully furnished with furnitures, fixtures, fittings and other paraphernalia and appurtenances of the cinema house with outside compound wall and gates".
6. The first respondent in the above petition filed a counter affidavit. He has contended that after the disposal of the matter by the Division Bench of this Court, he has preferred S.L.P. (Civil) No. 5843-5846 of 2001 before the Supreme Court and notice was directed to be issued to the respondent therein namely, the petitioner in the above CMP. Accordingly, she also entered appearance through her lawyer before the Supreme Court. The Supreme Court was pleased to grant an interim order to maintain status quo until further orders, but subsequently, the SLP itself was dismissed. In the above circumstances, it is contended that the present application is not maintainable before this Court and if at all any application for amendment is to be filed the same could only be filed before the Sub Court, Kozhikode. It is further stated that the reasons stated in the application for filing the petition before this Court is not proper or correct. It is contended that if at all the petitioner is aggrieved, he could have raised such contention in the appeal before this Court and this Court having considered the entire matter and disposed of the appeal as indicated above, this petition is not maintainable in law or on facts. The matters sought to be amended are not clerical or arithmetical mistake or errors arising from any accidental slip or omission.
7. We find from the judgment and decree that there was a direction to the defendant to pay an amount of Rs. 2,07,434.67/- to the plaintiff who shall thereupon deliver the properties mentioned in the plaint schedule. Admittedly, the plaintiff was in possession and the suit was instituted by the plaintiff for specific performance. But the suit was partly allowed directing the defendant to pay the amount as aforesaid and the plaintiff has to put the defendant back in possession of the property. So much so, in the decree also, the direction to pay the amount by the defendant is mentioned. But we find that there is an omission to say specifically that it is the plaintiff who shall vacate and hand over possession. Thus the word plaintiff is omitted after and before the word vacate. But in the judgment, in answer to Issue No. 5 and 6 it is clearly mentioned that the plaintiff is not entitled for specific performance and that on payment of Rs. 2,07,434.67/- the plaintiff shall vacate and hand over possession. Hence there is an omission in the decree which is purely clerical is clear from the operative portion of the judgment itself. Therefore the contention that there is no clerical mistake or error and the remedy of the petitioner, if at all, is to file an appeal against the judgment and decree of the court below has no merit. We find that mistake of this nature is one which can be corrected by the court which passed the decree.
8. The only other question that arises for consideration is as to whether the petition is maintainable before this Court or as is contended by the respondent it should have been filed before the court below
9. Even though there is no specific contention raised in the counter that the petition should have been filed before the Supreme Court, such a contention was also raised during the course of argument. Hence we proceed to consider these contentions as follows:
10. The judgment and decree of the court below was appealed to this Court. The matter was ultimately disposed of by the Division Bench. After hearing both sides the matter was disposed of by a common judgment rendered in the matter along with other connected appeals. Thus, the judgment dated 19th January, 2001 was rendered after final hearing by which the decree challenged in the appeal was confirmed. Subsequently, a decree was also drafted on 19th January, 2001 by this Court as follows:
... "this Court doth order and decree that the decree of the lower court be and is hereby confirmed and the appeal is dismissed.
This Court doth further order and decree that the parties do bear their respective costs."
11. Thus this Court has passed a decree in terms of its judgment. Thus, the decree of the Court below merged with that of the decree passed by this Court. In the decision reported in Kannan v. Narayani,1980 KLT 9 (FB), rendered by a Full Bench of this Court it was held thus:
"Except in cases to which S.153-A of the Code of Civil Procedure applies, where there has been an appeal, the decree under appeal merges in the decree in appeal and it is only the appellate court that could correct or amend the decree under S.152 of the Code".
12. The Court after considering the specific provision under O. XLI R.11 observed that when the Statute makes specific provision that when the dismissal of an appeal is in limine under O. XLI R.11 the Court of first instance will have the power to correct the decree or order, it logically follows that this would not be the case where the appeal has been dismissed not in limine but on the merits. Therefore even when an appeal is dismissed at the admission stage after hearing both sides, it will be a case of dismissal not under 0. XLI R.11, but it will be a dismissal on merits, where the principle of merger applies. Thus except in cases covered by O. XLI R.11 in all other cases, the principle of merger applies and the court competent to correct or amend the decree is the appellate court in which the decree of the trial court has merged. This is the effect of S.153A of the Code of Civil Procedure. Therefore, S.153A eloquently implies that in cases of disposal of appeals otherwise than under O. XLI R.11 the Court of first instance would not have the power to amend its decree or order. But in the case on hand, the matter was disposed of by this Court after final hearing, by a common judgment rendered in the case and hence not a case of summary dismissal as contemplated under O. XLI R.11 of the CPC. Thus, the judgment and decree of the court below has merged with that of the decree and judgment passed by this Court and so it cannot be said that this Court has no jurisdiction to amend the decree as applied for.
13. Even though the learned counsel for the respondent, relying on the decision reported in Malayalam Plantations Ltd. v. Varkey Chacko (1969 KLT 710) contended that the Court below can amend a decree exercising the power under S.151 of the Code of Civil Procedure, it is not necessary to consider this contention since if the principle of merger applies and the judgment and decree of the court below has merged with that of the decree passed by this Court and this Court having full jurisdiction to amend its decree when applied for it is not necessary to consider whether the petitioner can also get the decree amended by the court below. Only in the absence of jurisdiction by this Court that question arises for consideration.
14. It was alternatively contended that since there was a Special Leave Petition before the Honourable Supreme Court, which was ultimately dismissed, the decree passed by this Court has merged with that of the Supreme Court and therefore, the appropriate court for amending the decree is the apex court. Though no such contention is raised in the written statement but advanced at the time of argument, we proceed to consider this contention being a legal question. This aspect is squarely covered by the decision of the Supreme Court reported in Kunhayammad v. State of Kerala ((2000) 6 SCC 359 [LQ/SC/2000/1013] ). The dismissal of the Special Leave Petition by a speaking order may be a law declared by the Supreme Court under Art.141 of the Constitution of India and binding on all other courts but not on the basis of principle of merger. When the special leave is dismissed whether by a speaking or non speaking order, it cannot be equated with the dismissal of an appeal. Only when the special leave is allowed and converted into an appeal and thereafter disposed of the same that the decision is rendered in the appeal. When the special leave itself is dismissed and thus leave is refused to file the appeal, the judgment and decree of the High Court remains in tact and it cannot be said that the judgment and decree of this Court has merged with that of the Supreme Court merely because one of the parties have preferred a Special Leave Petition which was dismissed by the Apex Court without granting leave. In the aforesaid decision, the Supreme Court, after surveying the entire case law on the subject formulated the principles of which what is relevant is given as hereunder:
"(v) If the order refusing leave to appeal is a speaking order, ie., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Art.141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the Special Leave Petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties."
15. Therefore it is no more open to contend that the dismissal of the Special leave by the Supreme Court has the effect of dismissing the appeal or that the decree of this Court has merged with that of the Supreme Court. This being the position, there is no merit in this contention either.
As we have already found that there is a clerical omission in the decree passed by the court below which has merged with that of the decree passed by this Court, we allow this petition as prayed for.
2. The suit is filed by the plaintiff for specific performance of an agreement for sale dated 21.9.1977 and also for damages. The plaint schedule consists of two items of properties. Item No.1 is a theatre by name Sangam Theatre with land, building, furniture and equipments etc. and item No. 2 is Pushpa Theatre with land, building, furniture and equipments etc. When there was an agreement for sale and there was a failure to perform the terms thereon. The plaintiff instituted the suit for specific performance. The suit was decreed in part directing the plaintiff to hand over possession of the properties on receiving an amount of Rs. 2,07,434.67. But in the judgment it is specifically stated in Para.41 as follows:
"On paying this amount of Rs. 2,07,434.67 the plaintiff shall vacate and hand over possession. The accounts are settled accordingly".
It was also observed at page 42 of the trial court judgment as follows:
"In view of the finding on issue No. 2 to 4, the plaintiff is not entitled for any specific performance. On paying Rs. 2,07,434.67 the plaintiff shall vacate and hand over possession".
3. But when the decree was drawn up, the decree reads as follows:
"That the defendant No. 3 do pay a sum of Rs. 2,07,434.67 to the plaintiff and vacate and hand over possession of the properties".
4. Thus, the amount has to be paid by the defendant whereupon the plaintiff has to vacate and hand over possession of the properties to the defendant which is clear from the judgment as is referred to above. Therefore, there is an omission of the word who shall vacate after the word plaintiff in the decree to indicate that, the plaintiff is to vacate the premises on receipt of the amount. Hence praying that the decree be amended, the above petition is filed.
5. Against the judgment and decree of the court below an appeal was preferred before this Court as A.S. 167 of 1990 and thereafter a further appeal as A.F.A. 99 of 1994 before a Division Bench of this Court against the judgment of the learned Single Judge. A.F.A. 99/1994 along with A.F.A. 100/1994 and 101 of 1994 and A.S. 422 of 1996 was disposed of by a common judgment. The opinion among the two judges who heard the matter was divided, one of whom dismissing the appeal A.S. 422 of 1996 and partly allowing A.F.A. Nos. 99,100 and 101 of 1994 and the other allowing A.S. 422 of 1996 and dismissing A.F.A. Nos. 99,100 and 101 of 1994. However, since there was no divergence on point of law but the difference was only on question of fact, applying the principles contained in S.98 of the Code of Civil Procedure the decree appealed against stood confirmed as per the order of the court dated 19th January, 2001. According to the petitioner, the judgment and decree of the Sub Court, Kozhikode having merged with the judgment and decree of this Court, he filed this petition for necessary relief to amend the decree supplying the omission as follows:
"1. In the prayer portion of the Decree the word plaintiff shall may be inserted after and before vacate in between line No. 3 and 4.
2. After the sentence that "the parties do bear their respective cost" and before Item No.1 at Page No. 3 the following may be included:
Schedule
Item No.1
All that piece or parcel of land or ground situate lying and being in Nagaram Amsom, Kozhikode Taluk, Calicut City bearing Ward No. 16, Block No. 14, T. Survey No. 191/2, Puthukudi paramba, at Railway Station Road, Calicut with the super structure of cinema house built, constructed or standing thereon known as "Sangam Theatre" fully equipped with 70 MM Screen, two R.C. Gevestor double Projectors, 70/35 MM slide projector, two Blue Star Air conditioners, Generators, Motors Fans and Auditorium with 1200 seats fully furnished with furnitures, fixtures, fittings and other paraphernalia and appurtenances of the cinema house with outside compound wall and gates".
6. The first respondent in the above petition filed a counter affidavit. He has contended that after the disposal of the matter by the Division Bench of this Court, he has preferred S.L.P. (Civil) No. 5843-5846 of 2001 before the Supreme Court and notice was directed to be issued to the respondent therein namely, the petitioner in the above CMP. Accordingly, she also entered appearance through her lawyer before the Supreme Court. The Supreme Court was pleased to grant an interim order to maintain status quo until further orders, but subsequently, the SLP itself was dismissed. In the above circumstances, it is contended that the present application is not maintainable before this Court and if at all any application for amendment is to be filed the same could only be filed before the Sub Court, Kozhikode. It is further stated that the reasons stated in the application for filing the petition before this Court is not proper or correct. It is contended that if at all the petitioner is aggrieved, he could have raised such contention in the appeal before this Court and this Court having considered the entire matter and disposed of the appeal as indicated above, this petition is not maintainable in law or on facts. The matters sought to be amended are not clerical or arithmetical mistake or errors arising from any accidental slip or omission.
7. We find from the judgment and decree that there was a direction to the defendant to pay an amount of Rs. 2,07,434.67/- to the plaintiff who shall thereupon deliver the properties mentioned in the plaint schedule. Admittedly, the plaintiff was in possession and the suit was instituted by the plaintiff for specific performance. But the suit was partly allowed directing the defendant to pay the amount as aforesaid and the plaintiff has to put the defendant back in possession of the property. So much so, in the decree also, the direction to pay the amount by the defendant is mentioned. But we find that there is an omission to say specifically that it is the plaintiff who shall vacate and hand over possession. Thus the word plaintiff is omitted after and before the word vacate. But in the judgment, in answer to Issue No. 5 and 6 it is clearly mentioned that the plaintiff is not entitled for specific performance and that on payment of Rs. 2,07,434.67/- the plaintiff shall vacate and hand over possession. Hence there is an omission in the decree which is purely clerical is clear from the operative portion of the judgment itself. Therefore the contention that there is no clerical mistake or error and the remedy of the petitioner, if at all, is to file an appeal against the judgment and decree of the court below has no merit. We find that mistake of this nature is one which can be corrected by the court which passed the decree.
8. The only other question that arises for consideration is as to whether the petition is maintainable before this Court or as is contended by the respondent it should have been filed before the court below
9. Even though there is no specific contention raised in the counter that the petition should have been filed before the Supreme Court, such a contention was also raised during the course of argument. Hence we proceed to consider these contentions as follows:
10. The judgment and decree of the court below was appealed to this Court. The matter was ultimately disposed of by the Division Bench. After hearing both sides the matter was disposed of by a common judgment rendered in the matter along with other connected appeals. Thus, the judgment dated 19th January, 2001 was rendered after final hearing by which the decree challenged in the appeal was confirmed. Subsequently, a decree was also drafted on 19th January, 2001 by this Court as follows:
... "this Court doth order and decree that the decree of the lower court be and is hereby confirmed and the appeal is dismissed.
This Court doth further order and decree that the parties do bear their respective costs."
11. Thus this Court has passed a decree in terms of its judgment. Thus, the decree of the Court below merged with that of the decree passed by this Court. In the decision reported in Kannan v. Narayani,1980 KLT 9 (FB), rendered by a Full Bench of this Court it was held thus:
"Except in cases to which S.153-A of the Code of Civil Procedure applies, where there has been an appeal, the decree under appeal merges in the decree in appeal and it is only the appellate court that could correct or amend the decree under S.152 of the Code".
12. The Court after considering the specific provision under O. XLI R.11 observed that when the Statute makes specific provision that when the dismissal of an appeal is in limine under O. XLI R.11 the Court of first instance will have the power to correct the decree or order, it logically follows that this would not be the case where the appeal has been dismissed not in limine but on the merits. Therefore even when an appeal is dismissed at the admission stage after hearing both sides, it will be a case of dismissal not under 0. XLI R.11, but it will be a dismissal on merits, where the principle of merger applies. Thus except in cases covered by O. XLI R.11 in all other cases, the principle of merger applies and the court competent to correct or amend the decree is the appellate court in which the decree of the trial court has merged. This is the effect of S.153A of the Code of Civil Procedure. Therefore, S.153A eloquently implies that in cases of disposal of appeals otherwise than under O. XLI R.11 the Court of first instance would not have the power to amend its decree or order. But in the case on hand, the matter was disposed of by this Court after final hearing, by a common judgment rendered in the case and hence not a case of summary dismissal as contemplated under O. XLI R.11 of the CPC. Thus, the judgment and decree of the court below has merged with that of the decree and judgment passed by this Court and so it cannot be said that this Court has no jurisdiction to amend the decree as applied for.
13. Even though the learned counsel for the respondent, relying on the decision reported in Malayalam Plantations Ltd. v. Varkey Chacko (1969 KLT 710) contended that the Court below can amend a decree exercising the power under S.151 of the Code of Civil Procedure, it is not necessary to consider this contention since if the principle of merger applies and the judgment and decree of the court below has merged with that of the decree passed by this Court and this Court having full jurisdiction to amend its decree when applied for it is not necessary to consider whether the petitioner can also get the decree amended by the court below. Only in the absence of jurisdiction by this Court that question arises for consideration.
14. It was alternatively contended that since there was a Special Leave Petition before the Honourable Supreme Court, which was ultimately dismissed, the decree passed by this Court has merged with that of the Supreme Court and therefore, the appropriate court for amending the decree is the apex court. Though no such contention is raised in the written statement but advanced at the time of argument, we proceed to consider this contention being a legal question. This aspect is squarely covered by the decision of the Supreme Court reported in Kunhayammad v. State of Kerala ((2000) 6 SCC 359 [LQ/SC/2000/1013] ). The dismissal of the Special Leave Petition by a speaking order may be a law declared by the Supreme Court under Art.141 of the Constitution of India and binding on all other courts but not on the basis of principle of merger. When the special leave is dismissed whether by a speaking or non speaking order, it cannot be equated with the dismissal of an appeal. Only when the special leave is allowed and converted into an appeal and thereafter disposed of the same that the decision is rendered in the appeal. When the special leave itself is dismissed and thus leave is refused to file the appeal, the judgment and decree of the High Court remains in tact and it cannot be said that the judgment and decree of this Court has merged with that of the Supreme Court merely because one of the parties have preferred a Special Leave Petition which was dismissed by the Apex Court without granting leave. In the aforesaid decision, the Supreme Court, after surveying the entire case law on the subject formulated the principles of which what is relevant is given as hereunder:
"(v) If the order refusing leave to appeal is a speaking order, ie., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Art.141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the Special Leave Petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties."
15. Therefore it is no more open to contend that the dismissal of the Special leave by the Supreme Court has the effect of dismissing the appeal or that the decree of this Court has merged with that of the Supreme Court. This being the position, there is no merit in this contention either.
As we have already found that there is a clerical omission in the decree passed by the court below which has merged with that of the decree passed by this Court, we allow this petition as prayed for.
Advocates List
V.P. Seemanthini; For Petitioner R. Ramadas; For Respondents
For Petitioner
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
For Respondent
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak
Bench List
HON'BLE MR. JUSTICE K.A. ABDUL GAFOOR
HON'BLE MR. JUSTICE P.R. RAMAN
Eq Citation
ILR 2002 (3) KERALA 432
LQ/KerHC/2002/635
HeadNote
Civil Procedure Code, 1908 — O. 41 R. 11 — Amendment of decree — Maintainability of petition — Decree passed by trial court merged with that of High Court — Petition for amendment of decree maintainable before High Court — S. 153-A — Kannan v. Narayani, 1980 KLT 9 (FB), followed — Malayalam Plantations Ltd. v. Varkey Chacko, (1969) KLT 710, distinguished — Special Leave Petition dismissed by Supreme Court — No merger of High Court decree with that of Supreme Court — Kunhayammad v. State of Kerala, (2000) 6 SCC 359, relied on.
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