Hari
Prasad Bhuyan Vs. Durga Prasad Bhuyan and Ors [2008] Insc 105 (29 January 2008)
Dr.
Arijit Pasayat & D.K. Jain
(Arising
out of S.L.P. (C) No.8870 of 2006) Dr. ARIJIT PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Gauhati High Court, dismissing the applications for condonation of delay,
setting aside of abatement and substitution of the heirs of the respondent nos.
13 and 24 in the Second Appeal no.80/1986. It was held that the appeal had
abated and the judgment and order dated 18.5.1995 passed by the High Court in
Second Appeal no.80/1986 was a nullity and, therefore, application under
Section 152 of the Code of Civil Procedure, 1908 (in short the CPC)
was not maintainable.
3. Background
facts in a nutshell are as follows: Predecessors-in-interest of the appellant
filed suit TS no.26/1978 in the Court of Assistant District Judge No.1, Gauhati.
The said suit, inter alia, was for recovery of possession, confirmation of
possession and declaration of title over the suit properties and for
cancellation of mutation of names of certain defendants. According to the
appellant, the said suit specifically set out the cause of action against each
defendant and the prayers in the suit were also specifically directed against
the defendants in respect of the alleged holding in the scheduled properties.
The Trial Court by judgment dated 11.1.1984 dismissed the suit. An appeal was
preferred which was numbered as Appeal no.5/1984 and the same was dismissed by
learned District Judge, Gauhati by order dated 30.1.1986. Plaintiffs filed a
Second Appeal no.80 of 1986 in the Gauhati High Court. During pendency of the
same, some of the plaintiffs died and their legal heirs were substituted. The
Second Appeal filed by the plaintiffs was allowed by the Gauhati High Court and
the suit was decreed.
Plaintiffs
filed an Execution Petition before the Trial Court which was numbered as Title
Execution Case No. 4 of 1995.
The
Trial Court drew up the decree dated 7.4.1996 as directed by the High Court,
but mistakenly set out only costs without setting out the reliefs in the suit
which had been decreed. An S.L.P. (CC No.2275/96) filed by the respondents
against the judgment and order dated 18.8.1995 passed by the High Court was
dismissed by order dated 8.5.1996 with the following observations:
The
Ld. Counsel for the petitioner submits that the petitioners have been advised
to approach the High Court for recall of the order and he had instructions to
withdraw this Special Leave Petition. We record the statements of the Ld
Counsel and dismiss the Special Leave Petition as withdrawn.
In the
Execution Petition filed by the appellants objection under Section 47 CPC was
filed on behalf of the heirs of deceased respondent no.7 and the Trial Court by
an order disposed of the said application, inter alia, observing as follows:
In
the light of the above, I am of the considered view that the decree cannot be
executed in respect of the E Schedule on the ground of nullity but the decree
will be executable in respect of other properties as mentioned in the plaint
except those in Schedule E and against the other judgment debtors. With this
order, the petition stands disposed of. Steps be taken for execution of the
decree. On 26.8.1997 the trial Court by two separate orders in the suit in
the execution proceedings observed that decree should have contained all the reliefs
claimed and ordered accordingly. On 17.11.1997 the decree was drawn up as per
the order dated 26.8.1997. Respondent no.6 i.e. Laxmi Ram Bhuyan filed a Civil
Revision (CR No.423/1997) in the Gauhati High Court questioning orders dated
26.8.1997 and decree dated 17.11.1997. By order dated 29.9.1999 the High Court
dismissed the Civil Revision. A petition was filed seeking review of the High
Courts order dated 29.9.1999 in RP No.6 of 2000. A Special Leave Petition
was filed against the order dated 10.4.2001, by which the High Court rejected
the review Petition. On 20.11.2002 this Court granted liberty to the appellants
to approach the High Court under Section 152 CPC for making appropriate
corrections in the decree. The judgment is reported in Lakshmi Ram Bhuyan vs. Hari
Prasad Bhuyan and Ors. (2003 (1) SCC 197). It was inter alia noted as follows:
11.
The obligation is cast not only on the trial court but also on the appellate
court. In the event of the suit having been decreed by the trial court if the
appellate court interferes with the judgment of the trial court, the judgment
of the appellate court should precisely and specifically set out the reliefs
granted and the modifications, if any, made in the original decree explicitly
and with particularity and precision. Order XLI Rule 31 CPC casts an obligation
on the author of the appellate judgment to state the points for determination,
the decision thereon, the reasons for the decision and when the decree appealed
from is reversed or varied, the relief to which the appellant is entitled. If
the suit was dismissed by the trial court and in appeal the decree of dismissal
is reversed, the operative part of the judgment should be so precise and clear
as it would have been if the suit was decreed by the trial court to enable a
self-contained decree being drawn up in conformity therewith. The plaintiff,
being dominus litus, enjoys a free hand in couching the relief clause in the
manner he pleases and cases are not wanting where the plaintiff makes full use
of the liberty given to him. It is for the court, decreeing the suit, to
examine the reliefs and then construct the operative part of the judgment in
such manner as to bring the reliefs granted in conformity with the findings
arrived at on different issues and also the admitted facts.
The
trial court merely observing in the operative part of the judgment that the
suit is decreed or an appellate court disposing of an appeal against dismissal
of suit observing the appeal is allowed, and then staying short at that,
without specifying the reliefs to which the successful party has been found
entitled tantamounts to a failure on the part of the author of the judgment to
discharge obligation cast on the Judge by the provisions of the Code of Civil
Procedure.
12. In
the case at hand, a perusal of the reliefs prayed for in the plaint shows that
the reliefs are not very happily worded. There are some reliefs which may not
be necessary or may be uncalled for, though prayed for. The reliefs may have
been considered capable of being recast or redefined so as to be precise and
specific. May be, that the Court was inclined to grant some other relief so as
to effectually adjudicate upon the controversy and bring it to an end. Nothing
is spelled out from the appellate judgment. The trial court, on whom the
obligation was cast by the second appellate judgment to draw up a decree, was
also, as its order shows, not very clear in its mind and thought it safe to
proceed on an assumption that all the reliefs sought for in the plaint were
allowed to the plaintiffs. The learned Single Judge allowing the second appeal,
should have clearly and precisely stated the extent and manner of reliefs to
which the plaintiffs were found to be entitled in his view of the findings
arrived at during the course of the appellate judgment. The parties, the
draftsman of the decree and the executing court cannot be left guessing what
was transpiring in the mind of the Judge decreeing the suit or allowing the
appeal without further placing on record the reliefs to which the plaintiffs
are held entitled in the Opinion of the Judge.
13.
There is yet another infirmity. Ordinarily the decree should have been drawn up
by the High Court itself. It has not been brought to the notice of this Court
by the learned counsel for either parties if there are any rules framed by the
High Court which countenance such a practice as directing the trial court to
draw up a decree in conformity with the judgment of the High Court.
14.
How to solve this riddle? In our opinion, the successful party has no other
option but to have recourse to Section 152 CPC which provides for clerical or
arithmetical mistakes in judgments, decrees or orders or errors arising therein
from any accidental slip or omission being corrected at any time by the court
either on its own motion or on the application of any of the parties. A reading
of the judgment of the High Court shows that in its opinion the plaintiffs were
found entitled to succeed in the suit. There is an accidental slip or omission
in manifesting the intention of the court by couching the reliefs to which the
plaintiffs were entitled in the event of their succeeding in the suit. Section
152 enables the court to vary its judgment so as to give effect to its meaning
and intention. Power of the court to amend its orders so as to carry out the
intention and express the meaning of the Court at the time when the order was
made was upheld by Bowen, L.J. in Swire, Re, Mellor v. Swire subject to the
only limitation that the amendment can be made without injustice or on terms
which preclude injustice. Lindley, L.J. observed that if the order of the
court, though drawn up, did not express the order as intended to be made then
there is no such magic in passing and entering an order as to deprive the
court of jurisdiction to make its own records true, and if an order as passed
and entered does not express the real order of the court, it would, as it
appears to me, be shocking to say that the party aggrieved cannot come here to
have the record set right, but must go to the House of Lords by way of
appeal.
15. For
the foregoing reasons the appeal is allowed. The order of the trial court
drawing up the decree is set aside. The parties are allowed liberty of moving
the High Court under Section 152 CPC seeking appropriate rectification in the
judgment of the High Court so as to clearly specify the extent and manner of reliefs
to which in the opinion of the High Court the successful party was found
entitled consistently with the intention expressed in the judgment. The delay
which would be occasioned has to be regretted but is unavoidable. Once the
operative part of the judgment is rectified there would be no difficulty in
drawing up a decree by the High Court itself in conformity with the operative
part of the judgment. If the rules of the High Court so require, the
ministerial act of drawing up of the decree may be left to be performed by the
trial Court.
4.
Accordingly the application was filed under Section 152 CPC before the High
Court. On 26.6.2003, according to the appellant, he came to know about the
death of respondent nos.13 and 24 in February 1999 and 1993 respectively. This
according to the appellant came to the knowledge of the appellant from the
report of the Process Server dated 26.6.2003. On 2.8.2003 the appellant filed
application for setting aside the abatement, substitution and for condonation
of delay. By the impugned order, the learned Single Judge while dealing with
application under Section 152 CPC declared the decree to be a nullity on
account of death of respondent nos. 13 and 24 and the belated approach for
bringing their legal heirs on record.
5.
Learned counsel for the appellant submitted that the High Court has missed
several relevant factors. Firstly, in the earlier round of litigation which
resulted in the decision Lakshmi Ram Bhuyans case (supra) it was not
pointed out by the respondents about the death of respondent no.13 or
respondent no. 24. The present respondents were the appellants in the appeal
before this Court. They also did not point out about the death. There is no
decree which was to be drawn up in line with this Courts judgment.
6.
There is no dispute regarding the assertion of the appellant that he came to
know about the death of respondents 13 and 24 from the process servers
report. Before this Court earlier also respondents did not disclose about their
death. Since that has not been done, respondents cannot take any advantage from
the belated approach by the appellant.
This
according to us is a clear case where the prayer for condonation of delay in
seeking substitution by setting aside abatement and condonation of delay should
have been accepted by the High Court. The High Courts order is set aside.
The appeal is allowed. There will be no order as to costs.
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