Substantive Rights and Mistakes & Procedural Defects in Judicial Proceedings

Jojy George Koduvath

Procedure – a Handmaid;  Just Relief Cannot be Refused because of Mistake

In Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 our Apex Court held, while dealing with amendment of pleadings, as under:

  • “5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186)

Procedural defects should not be allowed to defeat Substantive Rights

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75, our Apex  Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-

  • “17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice.
  • Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
  • .(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
  • (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
  • (iii) where the non-compliance or violation is proved to be deliberate or mischievous;
  • (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
  • (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” (Quoted in Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186).

Adjudication is to Render Justice; it is Unmindful of Consequences

It was held by the Kerala High Court in Gopalakrishnan v. Joint Registrar of Co operative Societies (General), 08 Dec 2015, (Dama Seshadri Naidu, J) as under:

  • “23. I am very conscious that this Court, as a constitutional adjudicatory machinery, is called upon to interpret the statute straight and simple and render justice. Justice is not an inventive judicial instrument; it is rather a necessary corollary to the judicious application of the law to the facts following certain accepted cannons of construction of the statutes and the Constitution, too. The whole process is compendiously called judicial adjudication. Trite is the truth that adjudication is unmindful of consequences; it is, on the other hand, in the legislative wisdom to consider all the eventualities and bring about legislation or legislative changes to see that the varied needs of the organisations and institutions, including the administrative agencies, are best served—adverse fallout on the application of law is avoided.

Suit in the name of ‘Wrong’ Plaintiff, out of Inadvertent Mistake

In Varun Pahwa v. Renu Chaudhary, AIR 2019 SC 1186, the plaint was not properly drafted in as much as in the memo of parties, the Plaintiff is described as ‘Varun Pahwa through Director of Siddharth Garments Pvt. Ltd.’; it should have been ‘Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa’. It was an inadvertent mistake of the counsel.  Supreme Court [after referring State of Maharashtra v. Hindustan Construction Company Limited Jai Jai Ram Manohar Lal, (1969) 1 SCC 869 and Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2006) 1 SCC 75], permitted the Company to correct the mistake.

Amendments allowed, if no injustice to the other side

In State of Maharashtra v. Hindustan Construction Company Limited, (2010) 4 SCC 518, Supreme Court held as under:-

  • “17. Insofar as the Code of Civil Procedure, 1908 (for short “CPC”) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
  • 18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. (1883) 32 WR 262 (CA)  – an appeal that came up before the Court of Appeal, Brett M.R. stated:
  • “… The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….”

Mistakes Carried into Decrees

In Aliyar v. Raju V. Vayalat, 2016-1 KHC 763; 2016-1 KLJ 799; 2016-2 KLT 656, it is observed as under:

  • “It is needless to restate that the courts exercising power under the Act (Specific Relief Act, 1963) have both legal and equitable jurisdictions. It is common knowledge that in our country we do not have Courts of Equity and Law Courts separately. The Act confers equitable jurisdiction on the Civil Courts for granting specific relief.” (Quoted in: George, v.  Annakutty, ILR 2017-4 Ker 839; 2017-4 KHC 742; 2017-4 KerLT 553)

“Accidental slips or omissions may arise in the following circumstances –

  • .(1) In cases of suits based upon mortgage, sale, exchange, lease or agreement to purchase, survey numbers may be given correctly in the document anterior to the suit but a wrong survey number may be incorporated in the schedules by mistakes. Which mistakes may be carried into the decree schedules as well.
  • (2) In the above cases, even in the original document on the basis of which the suit is filed, there may be a mistake in regard to the survey numbers, though the extent and boundaries of the land belonging to the parties may be correctly described, and the same wrong survey number may be carried into the plaint schedules and as a consequences into the decree schedulesas well.
  • (3) In suits for partition and the like where there is no document anterior to the suit the mistake may occur in the plaint schedules by giving a wrong survey number or wrong extents though the properties have been correctly described by boundaries etc.”

Amendment of plaint and decree allowed under Sec. 151 and 152 CPC

In Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. (SB Sinha, J.),  AIR 2008 SC  225; 2007-13 SCC 421, it is held that a decree may be corrected by the Court both in exercise of its power under Section 152 as also under Section 151. It was a case where application for amendment of the plaint as also of the decree containing the Schedule describing the said property was filed. The Apex Court observed further as under:

  • “The courts power to amend a decree is not only confined to a clerical or arithmetical error but also the pleadings of the parties, if a mistake had occurred in the pleadings and the same is continued.”

The Apex Court upheld the Order allowing the amendment holding as under:

  • “26.It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. It is also not a case where by reason of an amendment, one property is being substituted by the other. If the Court has the requisite power to make an amendment of the decree, the same would not mean that it had gone beyond the decree or passing any decree. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. If the appellant herein did not file any written statement, he did so at its own peril. Admittedly, he examined himself as a witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated that an Advocate-Commissioner has also been appointed. We, therefore, are of the opinion that only because the JL numbers in the schedule was missing, the same by itself would not be a ground to interfere with the impugned order.
  • 27.So far as the application for impleadment of the applicants are concerned, they being not parties to the suit are not bound by the decree. They would, thus, be entitled to take recourse to such remedies which are available to them in law including filing of an application under Order 21 Rules 97 and 99 of the Code of Civil Procedure, if any occasion arises therefor. As and when the said applicants take recourse to law, the same has to be determined in accordance with law.
  • 28.This appeal and the application for impleadment are dismissed accordingly. It would, however, for the Executing Court to consider at the time of execution of the decree to ascertain whether there exists any difficulty in executing the decree or not. In the facts and circumstances of the case, however, there shall be no order as to costs.”

This decision is referred to in Peethani Suryanarayana v. Repaka Venkata Ramana Kishore, 2009-11 SCC 308..

No limit to the Court to Correct Errors u/Sec. 152 CPC; Mistake in Suit Document – Corrections allowed in a Preliminary Decree.

In Yerramilli Satyanarayana Rao v. Kandukuri Purnayya, AIR 1931 Mad 260, it is held by Krishnan Pandalai J. (in a case in which a wrong description of mortgaged property was given in the bond and the same mistake was repeated in the plaint and in the preliminary decree) as under:

  • “The net result of the authorities appears to me to be that there is nothing which limits the power of the Court under Section 152 to correcting errors, mistakes and omissions, which arose in the suit and there is nothing which prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the plaint. In my opinion, a suit for rectification although it may have been possible is not the only remedy. As for the suggestion of the Judge that a petition for review is appropriate, I fail to see that that is an obstacle to the present application. The order of the Judge dismissing the petition must be set aside and the petition will be remitted to the Lower Court for being dealt with on the merits. (referred to by the AP High Court in Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR1974 AP201)

In Yerramilli Satyanarayana Rao v. Kandukuri Purnayya, AIR 1931 Mad 260, several earlier decisions were relied on. They were analysed by the AP High Court in Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR1974 AP201 (Viswanatha Sastri, J.), to observe as under:

  • “The learned Judge considered in that case the decision in Narayanaswami v. Natesa, (1893) ILR 16, Mad 424 which was a case of wrong description of the hypothecated property in the plaint, whereas the mortgage consisted of the correct survey number and an application was made to bring the plaint schedule in conformity with that contained in the bond. It was held by the Full Bench consisting of Parker. Best and Muttusami Ayyar, JJ. that the alteration ordered was necessary to rectify a palpable error without which correction the decree was unexecutable. The error in the plaint was so palpable that to obstacle in the way of plaintiff executing his decree.  
  • The learned Judge in that decision referred to another decision of a Bench in Somasundaram Chettiar v. Vasuswami Naicker , 1914 Mad WN 107 = (AIR 1914 Mad 297 (1)) wherein there were errors in the description of the boundaries which makes the whole description palpably erroneous and if allowed to stand, would have made the decree absolutely useless and unexectuable. The latter Bench followed the earlier decision in (1893) ILR 16 Mad 424 and held that it was immaterial whether the errors were introduced into the plaint for the first time or in documents anterior to the plaint provided they are clerical errors and it was a case for amendment. Another Bench decision of their Lordships Sadasiva Ayyar and Spencer JJ. in Mahaboob Behum Sahiba v. Lal Begum Saheba, (1921) 14 Mad LW 445 which, followed the above decisions in ILR 16 Mad 424 and 1914 Mad WN 107 = (AIR 1914 Mad 297 (1)) was also followed in 61 Mad LJ 805 = (AIR 1931 Mad 260 ). The case in (1921) 14 Mad LW 445 was in respect of an amendment of survey numbers filed even after a final decree was passed.”

The AP High Court, further observed in in Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR1974 AP201, as under:

  • “(15) The decision of Krishnan Pandalai J. was followed by Patanjali Sastry, J. (as his Lordship then was) in Mad LJ 452 (AIR 1941 Mad 940 (1) ). The learned Judge observed that the Madras High Court has applied section 152 also to cases where the mistake occurred earlier in the document evidencing the transaction itself and was copied in the plaint and decree in the suit brought to enforce the transaction. The decision in Satyanarayana Rao v. Purnayya, (1931) 61 MLJ 805. was followed and the decision to the contra in Shujaatmand Khan v. Govind Behari. Both these decisions were followed in Vimalamba v. Ratnamma, (1965) 1 Andh WR 266 (AIR 1966 Andh Pra 26) by Venkatesam J, who also followed the Madras view in preference to that of Allahabad. The same view has adopted in Subramonia v. Joseph George, AIR 1959 Ker 336 by Kerala High Court and in Ghulam Ahmad v. Khizar Joo, AIR 1960 J and K 37 by the High Court of Jammu and Kashmir.
  • (16) The view taken in Ramakrishnan v. Radhakrishnan (AIR 1948 Madras 13) by a Bench of Madras High Court consisting Gentle C. J. and Hapell J, no doubt struck a different footing. In that case there was a mortgage in 1922. In respect of three items of property, including an item, which was survey No. 1427. In 1928 a preliminary decree was passed , which was mortgagor had no title to survey No. 1467. In 1930 he filed E. A. 494 of 1930 for attachment of property in S. No. 464 to which it was common ground the mortgagor had a title. The attachment was ordered and affected. but nothing was done for three grounds years. In 1933 the mortgagee-decree-holder, assigned the decree to the respondent in the said appeal. Eight years later the assignee-decree-holder brought the properties in survey No. 1467 to sale in execution of the final mortgage decrees and at the sale he became the purchaser. The sale was confirmed and full satisfaction of the decree was entered up. When the assignee-decree-holder purchaser went to take possession, he was obstructed by one of the sons of appellant No. 1. An application to remove the obstruction was filed and was ordered by the trial court in 1943. In appeal to the High Court the appeal was allowed. Shortly after the appeal was allowed dismissing the application of the assignee-decree-holder for removal of obstruction. The assignee-decree-holder filed an application in the lower court to have the mortgage deed, plaint in the mortgage suit and the preliminary and final decrees altered by substituting properties in 1463 and 1466 in place of property number 1467. The provisions of law invoked for that application were Section 151 and 152 C. P. C. The Trial Court allowed the application and altered the instrument by substituting two survey numbers 1463 hypothecate of the mortgage. On those facts the learned Judges held that the remedy of the petitioner was only to file a suit under Section 31 of Specific Relief Act for rectification of the deed and not to file an application under Section 152 of the C. P. C. The learned Judges observed as follows:
  • “I am unable to see how Section 152 gives to a court jurisdiction and authority to modify documents, particularly documents upon which a suit is instituted. There is a remedy by way of suit and I find nothing in the provisions of Section 152 which confers upon it similar powers as are conferred by Section 31, Specific Relief Act. In my view Section 152 is for the purpose of correcting errors directly involved in the proceedings themselves and not for correcting errors which are anterior to the proceedings, particularly in documents upon which proceedings are brought. I am unable to see that property, wrongly described in a deed, can be included in any of the mistakes which the section allows to be corrected. It is not a clerical or an arithmetical error. and I cannot see that it is an accidental slip or an omission.”The learned Judges preferred to follow the view of Allahabad High Court in preference to the view of Madras High Court cited before it was enunciated in the two decisions of Madras High Court in (1931) 61 Mad LJ 805 (AIR 1931 Mad 260) and (1941) 2 Mad LJ 452 (AIR 1941 Mad 940 (1)) and the Rangoon High Courts view as enunciated in AIR 1924 Rang 104. ”
  • Their Lordships also negativated that there was power to amend as prayed for under Section 151 C. P. C. It is therefore clear that the application, out of which the said appeal arose, was for amending the mortgage deed itself and as a consequence the schedules in the plaint and the decrees. Their Lordships clearly laid down that Section 152 is intended only to correct errors involved in the proceedings themselves in the suit and not for correcting errors which are anterior to the proceedings and particularly in the document upon which the proceedings are brought.

The AP High Court, in Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR1974 AP201, referring the following decisions and observed as under:

  • “(17) At this stage attention may be invited to another Bench decision in Latchavya v. Seethamma. (1932) 62 Mad LJ 350 (AIR 1932 Mad 275) rendered by their Lordships Pillay and Anantakrishna Aiyar JJ. That was a case in which there was a mistake in the mentioning of survey number in the mortgage deed itself. It was mentioned therein as survey No. 166 instead of survey number 168 and that mistake had been repeated in the plaint and decrees. On the basis of the said mortgage the suit O. S. 302 of 1919 was filed. A preliminary decree was passed against which there was no appeal. At that stage, the mortgagee decree-holder discovered that there was a mistake in the survey number. The mortgagee thereupon filed a suit under Section 31 of the Specific Relief Act for rectification of the mistake in the suit O. S. 302 of 1919. The said suit was decreed as the mention of survey number 166 was done by mistake of the parties. The court also directed the amendment of the mortgage-preliminary decree. The decision was confirmed in appeal by the learned Subordinate Judge. But the suit was dismissed by waller J in appeal L.P.A. was preferred against that decision. Their Lordships considered relevant case law and ultimately held that where a mortgage deed has been rectified in respect of a mutual mistake in spite of a decree having been passed on the basis of the mortgage, though the plaintiff has adopted a wrong course in applying in the same suit for rectification of the prior decree, the order of the court should be allowed to stand as it amounted to an amendment which the plaintiffs might have got by first getting the mortgagee deed rectified and then amending the plaint by applying for review or on an application under S. 152 CPC but it was out of a suit for rectification of the mistake in the bond as well as the decree. It was therefore a converse case and their Lordships held that such a rectification of the decree cannot be interfered with, as it was a mutual mistake.”
  • (18) It may be relevant at this stage, to note the decision of Supreme Court in Sheodhyan Singh v. Mst. Santichara Kuer (1961) 2 Mad LJ (SC) 116 (AIR 1963 SC 1879 ). That was a case in which a suit was brought in respect of 10 plots of land, for declaration and possession. They were originally mortgaged to the defendants, on the basis of which a morgage suit was filed in 1932. The mortgaged property was sold in court auction and was purchased by the decree holders 1936. They took possession of the property through court and remained in possession till 1943. After the sale to the respondents, there were trouble created by the appellants, who ultimately took possession by force. The respondents thereupon filed the suit out of which the appeal arose. The appellants resisted the suit on a number of grounds. One of grounds related to plot No. 1060. the appellants contended that it was neither included in the final decree for sale in favour of the respondents predecessors in interest nor in the sale certificate. The final decree contained 10 plots. It gives the Tauzi number, the Khasra number the Thana number, the survey number and the area and the boundaries of each plot. Among the 10 plots mentioned in the final decree there was a plot No. 160 but not plot bearing No. 1060. In the sale certificate also the same plots were mentioned. The High Court held that plot 100 in the final decree and in the sale certificate was a mistake for 1060. In the sale certificate also the same plots were mentioned. The High Court held that plot 100 in the final decree and in the sale certificate was a mistake for 1060, and it was a case of misdescription and not a case of disputed identity. The plot which was taken possession of also was the plot in 1060 as per the description and the boundaries. It was also found that there was no plot bearing No. 160 in the Khata number as the identify of the lot was correctly given and it was only a misdescription of the plot in the final decree as well as in the sale certificate. The decree for possession was held to be good. Their Lordships also confirmed this decision and held that where there is no doubt as to the identity and there is only a misdescription that can be treated as a mere irregularity. This case no doubt related a suit wherein the possession of the correct plot was sought to be recovered. But there is no reason why the same principle laid down by their Lordships viz. , that where there is only a misdescription of the plot and there is no dispute about the identity and the suit could be decreed for the correct plot not covered by the decree and sale certificate, should not be applied even in cases arising, should not be applied even in case arising under Section 152 C. P. C. or clerical or mutual mistakes.
  • (19) I am also of the view that in view of the above principles laid down by their Lordships in the above Supreme Court case, the reasoning of the Bench in Ramakrishnan v. Radhakrishnan, AIR 1948 Mad 13 may have to be re-considered in a proper case. I need not pursue the matter further in this case as this case is not based upon a document anterior to the suit.
  • (20) I may now refer to a recent decision by a Bench of this Court in Peraju v. Venkamma, AIR 1971 in Andh Pra 74. Their Lordships preferred to follow the view of Madras High Court in (1931) 61 MLJ 805 (AIR 1931 Mad 260) and a decision of Rajamannar C. J. in Katamraju v. Paripurnandam. (1948) 2 Mad LJ 301 (AIR 1949 Mad 282) and that of Krishnaswami Nayudu in Apart Krishna Poduval v. Lakshmi Nethiar, (1950) 1 Mad LJ 120 (AIR 1950 Mad 751 ). In both the above cases, it was held that where an application is filed for correction of errors as regards survey numbers, in the plaint schedule and decree schedules, and there is no dispute as regards identity of the property amendments may be allowed under Section 152 C. P. C. The fact that the deed anterior to the plaint also contained the similar mistake cannot disentitle the appellant to have the error set right. The above Bench have distinguished the decision in AIR 1948 Mad 13 on facts stating that it related to the rectification of the document itself.
  • (21) It may also be mentioned here that a suit still continues even after the preliminary decree and it is only after passing of final decree the suit can be said to have terminated. It is certainly, therefore open to courts to amend a plaint and decree schedules at any stage before passing of final decree. (Vide somireddi Burrayya v. Somireddy Atchayyamma (1958) 2 Andh WR 208 (AIR 1959 Andh Pra 26) ; Basavayya v. Guruvayya, AIR 1951 Mad 938 (FB) and Venkata Reddy v. P. Reddy AIR 1963 SC 992.”

Corrections contemplated are of correcting only accidental omission or mistakes

In Dwaraka Das v. State of M.P., (1999) 3 SCC 500, it is held as under:

  • “The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective order in the lis pending before them. No Court can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondents-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the court had rejected the claim of the appellant in so far as pendente lite interest was concerned.”

No party should suffer due to Mistake of the Court

In Jayalakshmi Coelho v. Oswald Joseph Coelho, 2001-4 SCC 181, it is laid down as under:

  • “So far legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases on the point may be made: The basis of the provision under Section 152 C.P.C. is found on the maxim Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man (Jenk Cent-118) as observed in a case reported in AIR 1981 Guwahati 41, The Assam Tea Corporation Ltd. versus Narayan Singh and another. Hence, an unintentional mistake of the Court which may prejudice cause of any party must be rectified. In another case reported in AIR 1962 S.C. 633 I.L. Janakirama Iyer and others etc. etc. versus P.M. Nilakanta Iyer it was found that by mistake word net profit was written in the decree in place of mesne profit. This mistake was found to be clear by looking to the earlier part of the judgment. The mistake was held to be inadvertent. In Bhikhi Lal and others versus Tribeni and others AIR 1965 S.C. 1935 it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in AIR 1966 S.C. 1047 Master Construction Co. (p) Ltd. versus State of Orissa and another it has been observed that 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 to careless mistake on the part of the Court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake. In a case reported in (1999) 3 S.C.C. 500 Dwarakadas Versus State of M.P. and Another this Court has held that the correction in the order or decree should be of the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial court had not granted the interest pendente lite though such a prayer was made in the plaint but on an application moved under Section 152 C.P.C. the interest pendente lite was awarded by correcting the judgment and the decree on the ground that non-awarding of the interest pendente lite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152 C.P.C. by the Courts beyond its scope has been deprecated. While taking the above view this Court had approved the judgment of the Madras High Court in Thirugnanavalli Ammal versus P. Venugopala Pillai AIR 1940 Madras 29 and relied on Maharaj Puttu Lal versus Sripal Singh reported in AIR 1937 Oudh 191: ILR 12 Lucknow 759. Similar view is found to have been taken by this Court in a case reported in (1996) 11 S.C.C. 528 State of Bihar and another versus Nilmani Sahu and another where the Court in the guise of arithmetical mistake on re-consideration of the matter came to a fresh conclusion as to the number of trees and the valuations thereof in the matter which had already been finally decided. Similarly in the case of Bai Shakriben (dead) By Natwar Melsingh and others versus Special Land Acquisition Officer and another reported in (1996) 4 S.C.C. 533 this Court found omission of award of additional amount under Section 23 (1-A), enhanced interest under Section 28 and solatium etc. could not be treated as clerical or arithmetical error in the order. The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law.

Clerical Error or Slip can be Corrected by all Courts and Authorities

Jayalakshmi Coelho v. Oswald Joseph Coelho, 2001-4 SCC 181, continued as under:

  • As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 C.P.C. may or may not strictly apply to any particular proceeding. 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 some thing 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 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 Courts inherent powers as contained under Section 152 C.P.C. It is to be confined to something initially intended but left out or added against such intention. So far the legal proposition relied upon by the learned Single Judge and the Honble Division Bench deciding the matter in its LPA jurisdiction, we are totally in agreement with the same i.e. an unintentional mistake which occurred due to accidental slip has to be rectified. The question however which requires consideration is as to whether on the facts of the present case and the principles indicated above, it could be said that there was any clerical or arithmetical error or accidental slip on the part of the Court or not.”

Jayalakshmi Coelho v. Oswald Joseph Coelho, 2001-4 SCC 181, followed, in Neeraj Kumar Sainy v. State of U. P., AIR 2017 SC 1524; 2017-14 SCC 136, U.P.S.R.T.C. v. Imtiaz Hussain, 2006-1 SCC 380, State Of Punjab v. Darshan Singh, 2004-1 SCC 328

Mistake of a party cannot be Corrected taking the Benefit of Sec. 152

In Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel, AIR 2012 SC 3285, it is held as under:

  • “21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim ‘allegans suam turpitudinem non est audiendus’. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong…. This concept is also explained by the legal maxims ‘Commodum ex injuria sua non habere debet’; and ‘nullus commodum capere potest de injuria sua propria’.”

Referring Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel, it is observed in ONGC Ltd.  v.  Modern Construction, 2014-1 SCC 648, as under:

  • 17. Thus, the respondent cannot take the benefit of its own mistake. Respondent instituted the suit in Civil Court at Mehsana which admittedly had no jurisdiction to entertain the suit. In spite of the fact that the civil suit stood decreed, the High Court directed the court at Mehsana to return the plaint in view of the provisions of Order VII Rule 10 CPC. Thus, the respondent presented the plaint before the Civil Court at Surat on 3.2.1999.
  • 18. The judgment and decree dated 21.9.2006 clearly provided for future interest at the rate of 12 per cent per annum from the date of filing of the suit till the realisation of the amount. The Executing Court vide judgment and decree dated 28.9.2007 rejected the claim of the respondent observing that the respondent had wrongly filed suit at Mehsana and the said court had no jurisdiction, and the “wrong doer cannot get benefit of its own wrong” i.e. the benefit of interest on the amount from the date of filing the suit in Mehsana court. The Appellate Court in its order dated 12.3.2010 reiterated a similar view rejecting the appeal of the respondent observing that “a public undertaking cannot be penalised for the mistake committed by the plaintiff by choosing a wrong forum”. Before the High Court when the matter was taken up on 14.9.2010, a similar view had been reiterated that the respondent cannot be allowed to take advantage of the words “from the date of the suit”, and conveniently overlook its own wrong of initially filing the suit in 1986 in the court at Mehsana. Though the court did not have jurisdiction, the plaintiff/respondent is now claiming interest for the period from 1986 to 1999 i.e. for 13 years by taking advantage of its own wrong and for that purpose, the plaintiff/respondent is trying to misconstrue the words mentioned by the learned trial court in the operative portion of the judgment dated 21.9.2006, viz., from the date of filing of the suit. However, while passing the impugned order, the High Court has used the language that the case stood transferred from the Mehsana court to the court at Surat and, therefore, interest has to be paid from the date of initiation of the suit at Mehsana i.e. from 1986 and in view thereof, allowed the claim.
  • 19. We are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law.”

When instrument may be rectified

Section 26 of Sp. Relief Act reads as follows:

“26. When instrument may be rectified –
(1) When, through fraud or a mutual mistake of the parties a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies) does not express their real intention, then-
either party or his representative-in- interest may institute a suit to have the instrument rectified; or
the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
a defendant in any such suit, as is referred to in Cl.(b), may, in addition to any other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the Court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the Court may in its discretion direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the Court thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under this section, unless it has been specifically claimed:
Provided that, where a party has not claimed any such relief in his pleading, the Court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.”

Suit for Rectification of Deed – When Needed?

In Aliyar v. Raju V. Vayalat, 2016-1 KHC 763; 2016-2 KLT 656, it is found as under:

  • “Admittedly, in Ext. A1 there are mistakes in the extent, survey number, boundaries and the details of the anterior title deeds. In these situations, it is clear that institution of a suit merely for the injunction reliefs will not serve the purpose of the respondent/plaintiff. Likewise, a suit for declaration that the plaint schedule property is the property that is included in Ext. A1 will also not help the respondent to get an effective and executable decree. It is, therefore, very clear that the patent mistakes in Ext. A1 will have to be rectified, otherwise the actual features available on the ground will be totally different from the descriptions shown in the respondent’s title deed. That apart, a declaratory relief can only be claimed in respect of a specific immovable property capable of being identified correctly. Indisputably, the descriptions in the schedule to Ext.A1 and the recital in the document do not reflect the actual state of affairs. Therefore, the declaratory relief can be effectively granted only after rectifying the mistakes in Ext. A1. Viewing from this angle, we are of the view that the most important and primary relief claimable under such a situation is the rectification of Ext. A1.”

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Unknown's avatar

Published by sajikoduvath

1 Comment

  1. LauraLynnHammett's avatar LauraLynnHammett says:
    November 12, 2024 at 7:28 am

    Thank you Saji Koduvath,

    I have a petition for writ of certiorari before the United States Supreme Court concerning the lack of analysis on the merits in appellate courts. Unfortunately, it seems to be a universal problem.

    It will be a pleasure and informative to read your other posts.

    Like

    Reply

Leave a Comment