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Kattamkandi Puthiya Maliackal Saheeda v. P.V Hemalatha
Structured Summary of the Opinion — P.R. Raman, J.
Factual and Procedural Background
The plaintiff instituted a suit for specific performance of an agreement for sale dated 21.9.1977 and for damages. The plaint schedule comprised two items: Item No. 1 — "Sangam Theatre" (land, building, furniture, equipment etc.), and Item No. 2 — "Pushpa Theatre" (land, building, furniture, equipment etc.). The trial court partly decreed the suit by directing payment of a sum (referred to throughout the judgment as Rs. 2,07,434.67) and directing that upon payment the plaintiff shall vacate and hand over possession of the properties.
When the decree was drawn up, it omitted the operative words clarifying who must vacate: the drafted decree read that the defendant No. 3 do pay Rs. 2,07,434.67 to the plaintiff and vacate and hand over possession of the properties — thereby creating an inconsistency with the trial court's written judgment which stated that the plaintiff shall vacate on payment. The petitioner therefore filed the present petition seeking amendment of the decree to supply the omission (specifically, insertion of the words "plaintiff shall" after "and" before "vacate") and to incorporate a detailed schedule (Item No.1) describing Sangam Theatre as set out in the petition.
Procedurally, appeals were taken to this Court (A.S. 167 of 1990; A.F.A. 99 of 1994 among others). The Division Bench that heard the appeals produced a common judgment dated 19th January, 2001 which, applying Section 98 of the Code of Civil Procedure (as referred to in the opinion), confirmed the decree. A Special Leave Petition (S.L.P. (Civil) No. 5843–5846 of 2001) was thereafter filed in the Supreme Court; an interim order was initially granted to maintain status quo, but the S.L.P. was subsequently dismissed.
Legal Issues Presented
- Whether the decree contains a clerical omission (the omission of language specifying that the plaintiff shall vacate and hand over possession on payment) and whether that omission is correctible as a clerical mistake.
- Whether this Court has jurisdiction to amend the decree (given that the trial court's decree was the subject of appeal and the appellate decree was drawn by this Court — i.e., whether the principle of merger places the power to amend with this Court rather than the trial court).
- Whether the dismissal of a Special Leave Petition before the Supreme Court affects the locus to apply for amendment (i.e., whether the decree of this Court merged with that of the Supreme Court such that the Supreme Court alone could amend).
Arguments of the Parties
Petitioner's Arguments
- The decree as drawn omits the words indicating that the plaintiff shall vacate upon receipt of Rs. 2,07,434.67; this omission is contrary to the operative portion of the trial court's judgment and is therefore a clerical mistake capable of correction.
- The petitioner sought specific amendments: insertion of the words "Plaintiff shall" in the prayer portion before "vacate", and inclusion of a detailed schedule describing Item No.1 (Sangam Theatre) as set out in the petition.
Respondent's Arguments
- The application is not maintainable before this Court because the matter, after being disposed of by the Division Bench, had led to a S.L.P. before the Supreme Court; any amendment should have been pursued in the Sub Court, Kozhikode (the court which passed the original decree).
- The petitioner could and should have raised the contention about the decree in the appeal before this Court; having disposed of the appeal, this Court cannot be approached now for such amendment.
- The matters sought to be amended are not clerical or arithmetical mistakes or errors arising from any accidental slip or omission.
- In argument, reliance was placed on Malayalam Plantations Ltd. v. Varkey Chacko (1969 KLT 710) for the proposition that the trial court can exercise power under Section 151 CPC to amend its decree (this point was raised but the Court considered it unnecessary to decide given its own conclusion on jurisdiction).
- It was also contended at argument (though not pleaded in writing) that because a Special Leave Petition had been filed in the Supreme Court, and was dismissed, this Court's decree had merged with the Supreme Court's and therefore the appropriate forum for amendment would be the Supreme Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kannan v. Nrrayani (1980 KLT 9 (FB)) | Principle of merger: where there has been an appeal (except cases falling under S.153-A/C.P.C. exceptions), the decree under appeal merges in the decree in appeal and only the appellate court can correct or amend the decree (under S.152 CPC). | The Court relied on this Full Bench decision to hold that the trial court's decree merged with the decree passed by this Court on appeal, and therefore this Court (as the appellate court in which the decree merged) had jurisdiction to correct the clerical omission. |
| Malayalam Plantations Ltd. v. Varkey Chacko (1969 KLT 710) | Authority relied upon by respondent's counsel for the proposition that the trial court can amend a decree exercising power under Section 151 CPC. | The Court noted this reliance but found it unnecessary to decide the Section 151 point because it concluded that this Court had jurisdiction to amend the decree in any event (by reason of merger and appellate jurisdiction). |
| Kunhayammed v. State of Kerala ((2000) 6 SCC 359) | Clarified effect of dismissal of a Special Leave Petition: a dismissal of SLP (speaking or non-speaking) refusing leave does not equate to dismissal of an appeal and does not cause the High Court's decree to merge into the Supreme Court's order; a speaking dismissal contains a declaration of law under Article 141 but does not merge the orders for purposes of amendment. | The Court applied this Supreme Court authority to reject the contention that the dismissal of the S.L.P. caused this Court's decree to merge with that of the Supreme Court; therefore the Supreme Court was not the exclusive forum for amendment merely because an SLP had been filed and dismissed. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise manner:
- Examination of judgment vs. decree: The Court compared the operative portions of the trial court's written judgment (which explicitly stated that on payment of Rs. 2,07,434.67 the plaintiff shall vacate and hand over possession) with the drawn decree (which wrongly stated that the defendant do pay the sum to the plaintiff and vacate and hand over possession). From this comparison the Court concluded there was a clear omission: the decree failed to state that the plaintiff shall vacate upon receiving the amount. The Court characterized this as a clerical omission arising from an accidental slip in drafting the decree, given that the judgment itself made the intention clear.
- Correctability of clerical mistake: The Court accepted that a mistake of this nature (omission of the word identifying who must vacate) is clerical and capable of correction by the court which passed the decree.
- Jurisdictional question — merger principle: The Court considered whether the petition ought to have been filed in the trial court or in this Court. It held that because the trial court's decree had been the subject of appeal and this Court had, after final hearing, confirmed the decree by an order dated 19th January, 2001, the trial court's decree had merged into this Court's decree. Relying on the Full Bench decision in Kannan v. Nrrayani and the statutory framework discussed (references to Order XLI Rule 11 and Section 153-A of the C.P.C. in the opinion), the Court concluded that where an appeal is disposed of on merits (i.e., not dismissed under Order XLI Rule 11), the principle of merger applies and the appellate court (here, this Court) is the proper forum to correct or amend the decree.
- Section 151 CPC argument: Although the respondent relied on Malayalam Plantations to contend that the trial court could amend under Section 151 CPC, the Court found it unnecessary to decide that point because it had concluded that this Court had jurisdiction to amend the decree by reason of merger.
- Effect of S.L.P.: The Court addressed the alternative contention (made at argument) that, because an S.L.P. had been filed in the Supreme Court and dismissed, the decree had merged with the Supreme Court and therefore any amendment should be sought there. Applying the Supreme Court's decision in Kunhayammed v. State of Kerala, the Court held that dismissal of an S.L.P. (speaking or non-speaking) refusing leave does not equate to dismissal of an appeal and does not cause merger so as to oust the appellate court's power to amend. While a speaking dismissal may contain a declaration of law under Article 141, the dismissal of an S.L.P. refusing leave does not make the Supreme Court the forum to amend the High Court's decree simply by virtue of such dismissal.
- Conclusion from analysis: Given the clerical nature of the omission and this Court's jurisdiction to amend the decree (because the trial court's decree had merged into this Court's decree), the petition to amend the decree was maintainable and the alleged objections that the petition should have been pursued only by appeal or before the trial court had no merit in the circumstances.
Holding and Implications
Holding: The petition is allowed as prayed for.
Direct implications and effect on the parties:
- The Court found and declared that there was a clerical omission in the decree (omission of words indicating that the plaintiff shall vacate and hand over possession upon payment of Rs. 2,07,434.67) and, exercising its jurisdiction as the appellate court in which the trial court's decree had merged, allowed the petition to correct that omission.
- By allowing the petition "as prayed for," the Court granted the amendment requested by the petitioner — namely, insertion of the words identifying that the plaintiff shall vacate upon receipt of the specified amount and the inclusion of the schedule where sought (the petition had specifically sought insertion of "Plaintiff shall" and inclusion of the Item No.1 schedule describing Sangam Theatre).
- No broader legal precedent was created by this single-order correction beyond the Court's application of established merger principles and the Supreme Court authority on the effect of S.L.P. dismissal; the decision applies the existing doctrines (merger, distinguishability of SLP dismissal, and correctability of clerical mistakes) to the facts of this case. The ruling's practical consequence is the correction of the operative decree to accord with the trial court's judgment and the appellate court's confirmation of that judgment.
This summary is confined strictly to the content and reasoning contained in the provided opinion and does not add material beyond the text of the opinion.
P.R Raman, J.:— 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 paragraph 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”.
3. 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:
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 Section 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 Gecestor double Projectors, 70/35 MM slide projector, two Fans and Auditorium with 1200 seats fully furnished with furniture, 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 C.M.P 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 S.L.P 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 mistakes or errors arising from any accidental ship 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 mission 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. 2,707,434.67/- 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 and 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? 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:
9. 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 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.”
10. 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. Nrrayani (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.
11. The court after considering the specific provision under Order XLI Rule 11 observed that when the Statute makes specific provision that when the dismissal of an appeal is in limine under Order XLI Rule 11 the court of first instance will have the power to correct the decree of 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 Order XLI Rule 11, but it will be a dismissal on merits, where the principal of merger applies. Thus except in cases covered by Order XLI Rule 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 Section 153-A of the Code of Civil Procedure. Therefore, Section 153 A eloquently implies that in cases of disposal of appeals otherwise than under Order XLI Rule 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 Order XLI Rule 11 of the C.P.C 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.
12. Even though the learned counsel for the respondent, relying on the decision reported in Malayalam Plantations Ltd.…(2Nd Defendant); v. Varkey Chacko…(Plaintiff). (1969 KLT 710) contended that the court below can amend a decree exercising the power under Section 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 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.
13. 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 Kunhayammed v. State of Kerala ((2000) 6 SCC 359). The dismissal of the special leave petition by a speaking order may be a law declared by the Supreme Court under Article 141 of the Constitution of India and binding on all other courts but not an 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, i.e, 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 Article 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”.
14. 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.
15. 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.
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