1. The petitioner and his brother Ravindra Ishwarlal Damania who is added as the second respondent in this petition, are the tenants of a flat on the first floor of a building called Sharat Sadan situated at 33 Tagore Road, Santacruz, Bombay. The first respondent is the owner of that building and was at all material times the landlord vis a vis the petitioner and his brother, hereinafter referred to as the defendants. The first respondent, hereinafter referred to as the plaintiff filed a suit, being R. A. E & R. Suit No.491/2578 of 1972, for possession of the aforesaid flat, hereinafter referred to as the suit premises, which was dismissed by the Small Cause Court at Bombay by its judgment and order dated 7th of June 1977. An appeal being appeal No.404 of 1977 preferred by the plaintiff was allowed by the appellate bench of the Small Cause Court by its judgment and order dated 25th of April 1978.
2. At this stage it is necessary to mention that in the plaint which was presented to the Court of first instance, in all the relevant paragraphs, the description of the suit premises was correctly mentioned as the premises situated on the first floor of the building. Even in the title of the plaint the address of the defendants was shown correctly as the first floor of Sharat Sadan. In the trial Court when the evidence was led both the plaintiff the defendants were fully conscious that the premises which were in possession of the defendants was the flat on the first floor of Sharat Sadan. The finding given by both the Courts below was on the basis that the defendants were in possession of the flat on the first floor of the building. When the appeal Court decreed the suit by reversing the decree of the dismissal passed by the trial Court it only proceeded to mention that the defendants to deliver vacant and peaceful possession of the suit premises to the plaintiff.
3. The difficulty has arisen and it has given rise to this fresh spate of litigation because in the prayer clause of the plaint the plaintiff had prayed as follows :-
'that the defendant be ordered and decreed to hand over vacant and peaceful possession of the entire ground floor at Sharat Sadan situated at 33, Tagore Road, Santacruz. Bombay 54, to the plaintiff.'
When, therefore, the decree was ultimately drawn up it has been mentioned therein that the possession of the ground floor at Sharat Sadan should be given to the plaintiff.
4. When at the time of execution of the decree this mistake was realised the plaintiff filed an application numbered as miscellaneous Notice No.777 of 1982 for correcting the decree to bring it in conformity with the real situation and, in particular with the recitals in the judgments which, as I have already shown above, referred to the first floor of Sharat Sadan as the suit premises. The learned trial Judge in Court room No.5 by his judgment and order dated 4th of June 1983 allowed the application and directed that the decree be amended accordingly. While so doing the learned trial Judge rejected the various contentions raised on behalf of the defendants who, naturally resisted the application for amendment. The defendants preferred a revision application being, revision application No.103 of 1983, which also came to be dismissed by the revisional Court by its judgment and order dated 8th November 1983. All the contentions raised on behalf of the parties were exhaustively considered by the revisional Court which rejected the main contention urged on behalf of the defendant that under S. 152 of the Code of Civil Procedure the trial Court cannot amend a decree which has been passed by the appeal Court. This is especially so when the appeal Court's decree itself has become merged in the order of the High Court and in the order of the Supreme Court.
5. The reference to the order of the High Court and the order of the Supreme Court is necessitated because after the appeal Court below had passed a decree in favour of the plaintiff the defendants had approached this Court under article 227 of the Constitution and after their petition under Art. 227 of the Constitution, being Special Civil Application No.1655 of 1978, was dismissed they approached the Supreme Court under article 136 of the Constitution. Special Leave Petition No.2446 of 1982 preferred by the defendants also came to be dismissed by the Supreme Court by its judgment and order of 5th May 1972.
6. The revisional Court held that the mistake is in the nature of an accidental error or a clerical mistake or even a slip which could be corrected by the trial Court itself under S. 152 of the Code of Civil Procedure. It may be added at this stage that during the hearing of the revision application the plaintiff made an application dated 31st of August 1983, which was actually presented to the revisional court on 2nd of September 1983. By this application the plaintiff prayed that the revisional Court, which was also the appeal Court, should amend the decree. The revisional Court did not pass any order on the same because having taken the view that the trial Court could amend the decree the revisional Court thought that it was not necessary to exercise the power, even if it possessed. to amend the decree under S. 152 of the Code. Aggrieved by the aforesaid order of the revisional Court, original defendant No. 2 has approached this Court under article 227 of the Constitution. Original defendant No.3 has been joined as the second respondent in this petition. Original defendant No.1 has since expired but defendants Nos. 2 and 3 themselves are the legal heirs.
7. Mr. J. J. Thakkar appears for the petitioner and he has made his submissions, which submissions can be taken as those made on behalf of the defendants. Mr. K. J. Abhyankar represents the plaintiff before me. Several arguments have been advanced for the purpose of showing that the revisional Court committed an error in holding that the trial Court could amend the decree which has been in fact and in law passed by the appeal Court, especially when the said decree of the appeal Court was the subject matter of a writ petition under Art. 227 of the Constitution in this Court and of a special leave petition under article 136 of the Constitution before the Supreme Court. It has also been argued by Mr. Thakkar that this was not a case where the jurisdiction of any Court under S. 152 of the Code could be exercised. According to Mr. Thakkar, S. 152 of the Code basically is concerned with the correction of errors or mistakes committed by the Court and if in the instant case a party to the litigation made an erroneous prayer in the plaint then no relief to him could be given under S. 152 of the Code. I may as well dispose of the latter argument of Mr. Abhyankar before proceeding further. Mr. Abhyankar has rightly pointed out that under the Civil Procedure Code the decree must conform to the judgment. The judgments of both the Courts below and even of this court show clearly that they were discussing the case of the suit premises understanding the same to be a flat on the first floor of Sharat Sadan. If, therefore, a mistake was committed by the officers of the Court in describing the suit premises in the decree as the premise situated on the ground floor of the building, naturally the mistake was a mistake of the Court. In these circumstances it is perfectly competent to correct the decree to bring it in conformity with the judgment. I unhesitatingly accept this submission and hold that the decree n the instant case could be corrected under S. 152 of the Code in order to bring it in conformity with the judgments of the Courts concerned.
8. The question, however, whether the trial Court could have corrected a decree which for the first time came to be passed by the appeal Court remains. The well recognised doctrine of merger has been naturally pressed into service by Mr. Thakkar. He has relied upon Hussain Sab v. Sitaram, : AIR1953Bom122 . The correct legal position as arising under S. 152 of the Code has been considered in this judgment. It has been laid down that if a decree of confirmation is passed by the appellate Court, the decree of the trial Court merges in the decree of the appellate Court. The fact that the appellate Court does not vary the decree of the trial Court does not make any difference to the legal position that ultimately it is the decree of the appellate Court which is the substantive decree. Therefore it was held that it is the decree of the appeal court which is to be amended if an amendment is sought under S. 152 of the Code. However, if an appeal has been summarily dismissed under Order XLI Rule 11 of the Code, then the original decree from which the appeal was preferred remains untouched and it was the original decree which was the substantive decree. The upshot of the discussion in this judgment is that if an appeal is preferred from a decree of the trial Court and. in appeal after hearing the parties the decree is confirmed, then it is the appeal Court which can amend the decree under S. 152 of the Code and not the trial Court.
9. Section 152 of the Code provides.
'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.
The question as to whether when an appeal from the trial Court decree is summarily dismissed it was the appeal Court or the trial Court which should be approached for amendment of the decree was the subject matter of difference of opinion among the different High Courts prior to the amendment of the Code in 1976. The Bombay High Court had taken, as mentioned in Hussain Sab's case : AIR1953Bom122 , the view that if the appeal had been summarily dismissed it is the trial Court which should amend the decree because the original decree from which the appeal was preferred remains untouched and it is the original decree which is the substantive decree. In 1976, S. 153A has been inserted in the Code which in fact incorporates the Bombay view and provides that where an Appellate Court dismisses an appeal under R. 11 of O. XLI, the power of the Court to amend, under S. 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.
10. Several other decisions have been pointed out to me, but the decision which I regard as the one binding upon me is to be found in Hussain Sab's case. If this is so, the trial Court in the instant case could not have amended the decree. The view of the revisional Court that the mistake which is to be corrected was such a minor one that it could be done by the court of first instance is not correct and is inconsistent with the law laid down by this Court. The trial Court acted in clear excess of its jurisdiction while it proceeded to amend the decree which had been passed by the appeal Court.
11. Mr. Abhyankar, however. canvasses the view that on the facts of this case looking to the language of the judgment of the appeal court in appeal No.404 of 1977 preferred by the plaintiff it could be reasonably inferred that it is the decree of the trial Court that was the subject matter of amendment and not the decree of the appeal Court. He placed reliance upon the following wording in the order of the appeal Court.
'Decree of the trial court is set aside and in its place the following decree is passed.'
According to Mr. Abhyankar, from this it could he reasonably inferred that ultimately what the appeal Court below did was to substitute a decree in the decree of the trial Court and, therefore, it is the decree of the trial Court that is the subject matter of execution. It is impossible to accept this contention. The language used by the appeal Court cannot determine as to whether it is a decree of the trial Court or of the appeal Court. In the instant case the trial Court had dismissed the suit. The appeal Court reversed the decree of dismissal and passed a decree in eviction allowing the plaintiff's appeal and consequently the suit also. It cannot, therefore, be said that the decree in the field is the decree of the trial Court.
12. It has also been suggested that in exercise of the power of this Court under Art. 227 of the Constitution I should be reluctant to interfere with the orders passed by the two Courts below. If it were a mere question of an error or a mistake of fact, may be 1 would have declined to exercise the jurisdiction of this Court under Art. 227 of the Constitution. But the error of jurisdiction committed by the trial Court which has been confirmed by the revisional Court is so patent that it should not be allowed to remain on the record. This is a case where the power of this Court under Art. 227 of the Constitution has got to be exercised. This despite the fact that on merits the plaintiff has an unimpeachable case.
13. Mr. Abhyankar re-invites my attention to the application made by the plaintiff in the revisional Court, to which I have already made a reference earlier. That was an application dated 31st August 1983 but presented to the Court on 2nd of September 1983.1 have already mentioned that since the revisional Court took the view that no fresh application by the plaintiff was necessary, it did not pass any order. In paragraph 11 of its judgment the revisional Court says so and it further decided that it was just and equitable to file the said application Mr. Abhyankar says that since this application has not been disposed of, the revisional Court may be directed to do so. It is not necessary for me to give any direction to that effect. If that application has not been finally disposed of, the plaintiff is free to move the Court for passing appropriate orders thereon.
14. In the result, this petition is allowed. The order dated 4th of June 1983 passed by the Judge of the Small Cause Court in Miscellaneous Notice No.777 of 1982 and confirmed by the Revisional. Bench of that Court by its judgment and order dated 8th of November 1983 in Revision Application No.103 of 1983 is set aside. Miscellaneous Notice No.777 of 1982 stands discharged.
15. There will be no order as to costs in this petition.
16. Order accordingly.