correction or amendment of pleadings
binay
(Querist) 06 January 2013
This query is : Resolved
whether a correction of typographical error, can be made in the pleading, which does not change the nature of the case, after the decree passed?
V R SHROFF
(Expert) 06 January 2013
Decree passed; so Litigation Proceeding is over.
There is no room left for a question "whether a correction of typographical error, can be made in the pleading, which does not change the nature of the case, "
Only in Appeal, one can raise this point.
R.K Nanda
(Expert) 06 January 2013
not possible.
Raj Kumar Makkad
(Expert) 06 January 2013
I disagree with both experts. Such typographical error can be got rectified from the same court under section 152 of Civil Procedure Code which reads as under:
Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
Advocate Ramesh
(Expert) 07 January 2013
I do agree with Mr.raj Kumar makkad sir. We should rectify the mistakes in the same court under section 152 of cpc.
binay
(Querist) 07 January 2013
thanks Mr.Raj Ku. Makkad, but let me know some deceissions.
Raj Kumar Makkad
(Expert) 07 January 2013
If you are a lawyer, you should leanr to make labour at your lawn. Planty of such decisions are available online. Search at www.indiankanoon.com
ajay sethi
(Expert) 07 January 2013
for judgements visit indian kanoon website
SARVPREET SINGH GURNA
(Expert) 08 January 2013
If I may give my two pennies' worth in this thread wherein knowledgeable experts have already expressed their wise opinions, I humbly submit that the answer to the query of the questioner has to be in the ‘negative’. Once a decree is passed after considering all the aspects of a case, the Court becomes functus officio i.e. to say the office of the Court expires! The Court cannot after passing of the final judgment/decree revisit the facts of the case, even if in the opinion of the person seeking a change in pleadings, it may only be a correction of a typographical error, which does not affect the nature of the case, as surely it is not for the person to judge the same, and lies exclusively within the domain of authority of the Court. But since the Court has now ceased to exercise jurisdiction, the matter cannot be reopened and re-appraised. As for section 152 of C.P.C., it is an authority granted to the COURT, to correct any clerical errors in its OWN judgment/order/decree, and the section certainly does not provide for a scope to alter the PLEADINGS at this stage. Order 6 rule 17 allows for a change in pleadings, but during the proceedings and certainly not after the drawing up of a decree. Furthermore, there certainly is a distinction between correction of a clerical mistake in the judgment and a change in the pleadings as such!
Thanks and regards
Sarvpreet Singh Gurna
Advocate
R.K Nanda
(Expert) 08 January 2013
agree with replies of experts Shroff and
gurna.
Raj Kumar Makkad
(Expert) 08 January 2013
I think the following judgment shall clear the legal position for many of my brother experts who still are denying the existence of section 152 of CPC meant for this purpose.
Delhi High Court
Hans Raj vs Amrik Singh And Anr. on 10 September, 2001
Author: M A Khan
Bench: M A Khan
JUDGMENT
Mahmood Ali Khan, J.
ADMIT.
1. Parties have requested for disposal of this petition on the basis of arguments addressed by them.
2. This civil revision is directed against an order of a Civil Judge dated 23.3.2001 by which he has dismissed an application of the petitioner/judgment debtor filed under Section 152 read with Section 151 CPC.
3. The relevant facts, in brief, are that the respondents filed a civil suit for recovery of Rs. 3,678.24 from the petitioner as arrears of rent etc., for the period from 1.1.1992 to 31.11.1994 @ Rs. 90.75 per month and from 1.12.1994 @99.82 per month excluding electricity, water and other charges. The break up of the amount claimed was given in paragraph 7 of the plaint and showed a sum of Rs. 2,722.50 having been recovered from the petitioner for the period from 1.1.1992 to 30.6.1996.
4. The petitioner contested the suit. He, inter alia, pleaded that he had paid a sum of Rs. 2640/- @ Rs. 82.50 per month for the period from January 1992 to February 1995 by cheques drawn in favor of respondent No. 1. Thereafter, he remitted Rs. 2130/- @ Rs. 100/- per month by money order. As such he has paid rent up to June 1996. He denied liability to pay the amount of rent and the interest claimed in the suit. He also pleaded that the respondent have filed this suit for recovery of rent of more than three years which is not legally recoverable.
5. The parties produced evidence on the issues framed. Trial court on 24.12.1999 passed a decree for recovery of arrears of rent @ Rs. 90.75 per month from 31.7.1993 to 1.12.1994 and @ Rs. 99.82 per month from 1.12.1994 to 30.6.1996 with interest @ 15% on arrears of rent till the date of its realisation. The court disallowed the claim of the respondents for the period prior to 31.7.1993 as time barred.
6. Thereafter on 7.2.2000 the petitioner filed an application under Section 152 read with Section 151 CPC for correction of the judgment. In the application it was alleged that the court has disallowed the claim for arrears of rent for the period prior to 31.7.1993 as having become barred by time. But the court has not given adjustment of the amount of Rs. 3177.28 (Rs. 2,722.50 and Rs. 454.78) which was admitted by the respondents to have been received for the period from 1.1.1992 to 30.6.1996 in para 7 of the plaint. Non adjustment of this sum is on account of error, accidental slip or omission in the judgment. Further, there is error in the decree wherein the counsel fee is awarded at Rs. 1000/- instead of 7.5% of the value of the amount due. He prayed that the judgment and decree be correct accordingly.
7. The respondents opposed this application.
8. The learned Civil Judge by the impugned order dated 23.3.2001 dismissed the application holding that the court had disallowed the adjustment of the sum of Rs. 3,177.28 by a conscious decision and remedy was appeal and not resort to Section 152 CPC whereby only arithmetical and clerical errors could be rectified. It was also held that the correction sought on the application did not fall within the purview of Section 152 CPC.
9. The petitioner has assailed this order in this petition. The application was filed under Section 152 CPC. It provides as under:
"152. Amendment of judgments, decrees or orders - Clerical or arithmetical mistakes in judgments, decrees, or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties."
10. Analysing this section the Supreme Court in Jayalakshmi Coelho v. Oswald Joseph Coelho made the following observations:
"So far as the legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 CPC, 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 CPC is found on the maxim actus curiae neminum gravabit i.e. an act of court shall prejudice no man (Jenk Cent-118) as observed in a case reported in Assam Tea Corporation Limited v. Narayan Singh. Hence an unintentional mistake of the court which may prejudice the cause of any party must be rectified. In another case reported in L. Janakirama Iyer v. P.M. Nilakanta Iyer it was found that by mistake the words "net profit" were 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 that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in Master Construction Co. (P) Ltd. v. State of Orissa 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 omission are attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits are required for such rectification of mistake. In a case reported in Dwarka Das v. State of M.P. 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,k 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 CPC 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 CPC 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 Amma v. P. Venugopala Pillai and relied on Maharaj Putta Lal v. Sripal Singh. Similar view is found to have been taken by this Court in a case reported in State of Bihar v. Ninlmani Sahu where the Court in the guise of arithmetical mistake on reconsideration 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 Bal Shakriben v. Special Land Acquisition Officer this Court found omission of award of Additional amount under Section 23(1-A), enhanced interest under Section 28 and solarium 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.
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 CPC 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 something which has intended to be otherwise, that is to say, while passing the decree the court must have in 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 it 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 confined to something initially intended but left out or added against such intention."
11. The judgment has comprehensively elaborated the scope and ambit of the Section 152 which need not be repeated again. Broadly speaking, by virtue of this provision the court can rectify the mistakes which have crept in the judgment unintended. The provision can be used to rectify (a) arithmetical errors; (b) clerical errors; (c) accidental slips, which phrases have been amply explained in the judgment of the Supreme Court. But this section cannot be invoked to rectify (i) an erroneous conscious finding on merit; (ii) modify, alter or add to the terms of original decree and to supply something which touches the merit of the decision; (iii) to correct a mistaken finding of facts which could be corrected in an appeal or review or revision; and (iv) error that requires sifting of evidence and adjudication on conflicting claim. This section should be given narrow restricted interpretation.
12. The question, however, which requires consideration is whether on the facts of the present case and the principle of law enunciated in the above cited judgment it could be said that there was any clerical or arithmetical error or accidental slip in the judgment in this case which requires rectification in exercise of power given by Section 152 CPC.
13. It is to be noticed that main controversy between the parties was about the period for which the rent was in arrear and the total amount which was due against the petitioner. Following issues were framed to resolve this disputed question of facts:
(i) Whether defendant has paid the arrears of rent as prayed for in the present suit for the period in question to the plaintiff?
(ii) Whether the plaintiff is entitled to the relief as prayed for in the present suit?
14. On issue No. 1 after discussing the evidence produced by the parties, the finding of the trial court was that the petitioner had failed to substantiate that he had paid Rs. 2640/- for the period from January 1992 to February 1995 and another sum of Rs. 2130/- to cover the rent up to June 1996. On the other hand, finding on issue No. (ii) was that the respondent could claim arrears of rent for three years preceding the date of the filing of the suit as the remedy for recovery of arrears of rent beyond that period had become barred by time. Further finding recorded was that rent for the period from 31.7.1993 to 30.6.1996 was in arrears and was recoverable from the petitioner in this suit.
15. The finding of the court on the above issues is loud and clear. In case the finding is wrong or suffers from legal or factual error, the remedy will not be by resort to Section 152 CPC for correcting it. Proper course would be to invoke powers of the trial court to review its own orders or the powers of superior courts in appeal or revision whatever may be available under law. But, certainly such rectification will fall beyond the purview of Section 152 CPC. The court has disallowed the claim of the petitioner that the rent up to June 1996 has been paid by him. The court's conclusion is based on the oral and documentary evidence adduced by the parties. This by necessary implication included the consideration of the facts stated in para 7 of the plaint on the basis of which the petitioner is seeking correction of the judgment.
16. For allowing the prayer of the petitioner made in the application the court will be required to reverse or modify its finding recorded on the issues, and hold that the respondent was not legally correct in appropriating the payment made by the petitioner towards time barred arrears etc., which is beyond the power of the court to do under Section 152 CPC. May be it could be done in a review, appeal or revision preferred by the petitioner for this purpose as per law.
17. As regards the controversy raised about the actual amount of fee of counsel chargeable in decree the counsel chargeable in decree the counsel for the petitioner has fairly stated that the difference will be too small to be pressed. Anyhow, it may be noted that according to Part B of Chapter 16 of Punjab High Court Rules and Orders as applicable to Delhi the fee chargeable is 10% where the decree is for an amount not exceeding Rs. 25,000/-.
18. Learned counsel for the respondent has also argued that the revision is not maintainable in view of Sub-section (2) of Section 115 CPC but does not say that an order passed under Section 152 CPC is an appealable order.
19. Consequently, I do not find any error of jurisdiction or irregularity in exercise of the jurisdiction by the trial court warranting interference. The petition is dismissed.
SARVPREET SINGH GURNA
(Expert) 10 January 2013
Hello,
We all must be glad that valuable inputs are being shared on this forum for the benefit of everyone’s knowledge. However, I must stand my ground in holding my initial position, as I feel the judgment reproduced above by my ld. brother is a vindication of my opinion that the scope of section 152 CPC, narrow as it is, is confined only to the correction of clerical, arithmetic errors etc. in the judgment and not the ‘pleadings’ of either party. Since the original query of the questioner was as regards the amendment/correction of the ‘pleadings’, I must aver that the answer to it is certainly not to be found in the provision of section 152 CPC, but lies instead, in a REVIEW/REVISION OR APPEAL.
The reading of the entire judgment, and I am glad such a one was produced for everybody’s consumption , affords its reader, a clear understanding of the spirit of section 152, which centers around only the correction of clerical/arithmetic errors in a judgment/decree of court and is certainly not a means to rehear the matter on its merits.
Now, to again address the concern of the questioner, there certainly are remedies available; remedies of REVIEW/REVISION/APPEAL, but section 152 certainly isn’t the correct route to be adopted, due to its narrow scope and specific purpose.
I could also quote some lines/paragraphs from the judgment cited above, such as :
In a case reported in Dwarka Das v. State of M.P. 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,k 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
Liberal use of the provisions under Section 152 CPC by the courts beyond its scope has been deprecated
The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law.
The judgment has comprehensively elaborated the scope and ambit of the Section 152 which need not be repeated again. Broadly speaking, by virtue of this provision the court can rectify the mistakes which have crept in the judgment unintended. The provision can be used to rectify (a) arithmetical errors; (b) clerical errors; (c) accidental slips, which phrases have been amply explained in the judgment of the Supreme Court. But this section cannot be invoked to rectify (i) an erroneous conscious finding on merit; (ii) modify, alter or add to the terms of original decree and to supply something which touches the merit of the decision; (iii) to correct a mistaken finding of facts which could be corrected in an appeal or review or revision; and (iv) error that requires sifting of evidence and adjudication on conflicting claim. This section should be given narrow restricted interpretation.
Consequently, I do not find any error of jurisdiction or irregularity in exercise of the jurisdiction by the trial court warranting interference. The petition is dismissed.
Thanks and regards
Sarvpreet Singh Gurna
Advocate
M Ravinder Babu Advocate Parka
(Expert) 04 August 2013
HAI
MISTAKE IS SOME THING DEFERENT THAN THAT OF MIS DESCRIPTION.EVEN THE DECREE CAN BE AMENDED AFTER LES IS DISPOSSEDOFF. IN ONE CASE IT IS REPORTED EVEN AT THE EP .LATEST DESSIONS REPORTED .
YOU CAN GET AT LAWYERS AT CITATION IF REQUEST WITH A SHORT DELAY
BY
RAVINDERBABU.MUDUMBY
binay
(Querist) 05 August 2013
thanx everyone for their valuable opinion. but here a question arises that if there is a mistake in the plaint/writ, and at the time of judgment the same has been referred in the judgment, and if the same is affecting the party/court to execute the judgment , then wht can be done as per law to provide justice to the party.
in my view mr.makkad have placed a well versed opinion to provide relief to the party.
so again thanx everyone for their valuable opinion.
