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Patti Amma Vs. Raman Nair - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 270 of 1957
Judge
Reported inAIR1962Ker6
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96, 115, 151 and 152
AppellantPatti Amma
RespondentRaman Nair
Appellant Advocate C.K. Viswanathan Iyer, Adv.
Respondent Advocate V.P. Gopalan Nambiar, Adv.
DispositionRevision petition allowed
Cases Referred and Pullappa Naidu v. Venkatanarappa
Excerpt:
.....alternative remedies against same evil. - - in the first place, if the court intended that future rent should also be deposited, then certainly the price at which the value of future rent should be calculated would have been clearly specified, for there used to be always dispute regarding the correct price of paddy for calculating the money value of the rent and unless the court specified the price at which the value is to be calculated, the tenants would find it difficult to calculate the correct amount to be deposited. lastly, it is clear from the subsequent conduct of the decree-holder himself that he too did not get the impression that under the decree the tenant was liable to deposit the future rent as well. 594 of 1954 of this court for arrears of rent of 1129 and obtained..........half per cent per annum from this date till realisation; (3) that the defendants do pay plaintiff future rent at the rate of 410 seers of paddy per annum due in 1131 payable in two instalments in the month of thulam (november) and kumbham (march) every year till date of surrender or relinquishment of possession by the defendant to plaintiff with notice to him through court or until the expiry of three years whichever event first happens; (4) that the defendant do pay plaintiff rs. 89-4-0 the costs of this suit with interest thereof at the rate of five and a half per annum from this date till realisation; (5) and it is further ordered that in case the defendants deposit into court within 1st july 1956 the 2nd instalment of the arrears of rent, interest and costs (the 1st instalment and.....
Judgment:
ORDER

M. Madhavan Nair, J.

1. The petitioner is the decree-holder who has obtained a decree for recovery of possession of the suit property with arrears of rent on the strength of a lease of 1946.

2. The decree provided

'(1) That the defendants do surrender possession of the plaint properties shown below to plaintiff.

(2) That the defendants do pay plaintiff arrears of rent Rs. 382-1-6 with interest on Rs. 328 at the rate of five and a half per cent per annum from this date till realisation in four instalments, the 1st instalment of Rs. 95-1-6 payable on 6th June 1956 and that the 2nd instalment Rs. 120-8-2 and 3rd and 4th instalments at Rs. 125-6-8 per instalment payable on 1st July 1956, 1st July 1957 and 1st July 1958 respectively with interest on each instalment at five and a half per cent per annum from this date till realisation;

(3) That the defendants do pay plaintiff future rent at the rate of 410 seers of paddy per annum due in 1131 payable in two instalments in the month of Thulam (November) and Kumbham (March) every year till date of surrender or relinquishment of possession by the defendant to plaintiff with notice to him through court or until the expiry of three years whichever event first happens;

(4) That the defendant do pay Plaintiff Rs. 89-4-0 the costs of this suit with interest thereof at the rate of five and a half per annum from this date till realisation;

(5) And it is further ordered that in case the defendants deposit into Court within 1st July 1956 the 2nd instalment of the arrears of rent, interest and costs (the 1st instalment and a portion of the 2nd instalment being already discharged by crediting the payment of Rs. 100/7) with interest thereon from the respective dates till date of deposit and 'future rent, if any,' that may accrue due by date of deposit, the suit shall stand dismissed and that in default of deposit as aforesaid the decree above do stand.' (Underlining there into ' ') is by me).

3. The 2nd defendant tenant filed R. I. A. 2385/1956 'under Sections 151 and 152 of the Code of Civil Procedure, praying for an amendment of the decree, by deleting the clause directing deposit of 'future rent.' He contended 'the clause in the decree directing deposit of future rent is not in conformity with the judgment and consequently the decree is liable to be amended by deleting the said clause'. The learned Munsiff by his order dated 17th January 1957 allowed R.I.A. observing :

'I must however state that in passing such a judgment I did not mean that any future rent that may accrue due by the date of deposit should bedeposited. That the intention of the Court could not be otherwise is clear from the following circumstances. In the first place, if the Court intended that future rent should also be deposited, then certainly the price at which the value of future rent should be calculated would have been clearly specified, for there used to be always dispute regarding the correct price of paddy for Calculating the money value of the rent and unless the Court specified the price at which the value is to be calculated, the tenants would find it difficult to calculate the correct amount to be deposited. Secondly, the advocate for the decree-holder himself concedes that the expression 'rent due' Occurring in Section 24(3) may not properly include future rent that may accrue due by the date of deposit. If that is so, the Court ordinarily could not have meant something which the relevant provisions of law itself do not warrant. Lastly, it is clear from the subsequent conduct of the decree-holder himself that he too did not get the impression that under the decree the tenant was liable to deposit the future rent as well. It is seen and it is also admitted, that the decree-holder had subsequently filed O. S. 594 of 1954 of this court for arrears of rent of 1129 and obtained a conditional decree for the same and that decree has been satisfied by the tenant. The future rent which according to the decree-holder should have been deposited under the decree in O. S. 697 of 1955 is that of the year 1129. If the rent of the year 1129 was also contemplated to be deposited under the decree in O. S. 697 of 1955 as future rent, then there was absolutely no necessity for the decree-holder to have filed another suit O. S. 594 of 1954 for the same rent. Indeed, the result of upholding the contention of the advocate for the decree-holder would be to compel the tenant to deposit the rent of 1129 again which had been already merged into a decree in O. S. 594 of 1954 and had been admittedly discharged by the present petitioner. For all these weighty reasons I hold that it could not have been contemplated--and indeed I did not mean-- that future rent that may accrue by the date of deposit should also have been deposited by the tenant within the time specified so as to avert a decree for eviction. It follows therefore that the clause in the decree directing the deposit of the future rent is not in conformity with the judgment and consequently the decree is liable to be amended by deleting the clause providing for deposit of the future rent.'

4. The application o the defendant was to correct the decree so as to make it conform with the judgment. The order of the Court below quoted above shows that no discrepancy between the decree and the judgment was made out in the case. All the discussion of the learned Munsiff in the impugned order was to establish that the judgment in the case was defective on merits. That cannon certainly be rectified under Sections 151 and 152 C. P. O.

Of the three grounds mentioned above by the learned Munsiff to justify amendment of the decree as prayed for, neither the first nor the second comes within the scope of Sections 151 and 152 of the Code of Civil Procedure. With regard to the final ground, it is obvious from the records that it proceeds upon a mistaken assumption that the decree awarded rent for 1129. The learned Munsiff has not caredto read the decree before he assumed knowledge of its contents.

5. The original plaint is available among the records sent to this Court for purposes of this C. R. P. It shows that the case in the plaint was that the plaintiff had obtained a decree for the rent of 1129 as O. S. No. 594 o 1954 and another decree for the rent for 1130 as O. S. No. 436 of 1955, that the rents due for the years 1127 (1951-52) and 1128 (1952-53) had not been paid by the defendant in spite of demands, but the same was not sued upon earlier as suits in regard to rents accrued before 1st October 1953 were prohibited for the time being by Act I of 1955 (Madras) and that the prayer in the plaint were (1) for recovery of the suit property from the defendant, (2) for recovery of Rs. 382-1-6 as value of arrears of rent duo for the years 1127 and 1128, (3) for recovery of future rent for 1131 and subsequent years and (4) for costs and interest. The judgment was to the effect:--

'Contentions not pressed. There will be a conditional decree as prayed for with two months' time under Act 1 of 1955. Amounts deposited will be credited towards the first instalment.'

6. The decree quoted above is strictly in conformity with the judgment read along with the plaint and no amendment is called for under Sections 151 and 152 C. P. C. How Section 151 can he brought into play in the matter was not made out either in the application or at the arguments of the case.

7. It is pretty clear that neither the plaint nor the decree did use the expression 'future rent' to include the rents for 1129 and 1130. The plaint clearly stated that the plaintiff had already secured two decrees for those rents and all that he prayed was for a decree for the rent for 1131 and future only. It is regrettable to find that even in this Court, the learned counsel who appeared for the respondent strongly supported the reasoning of the learned Munsiff, especially the third ground in his order.

The learned Munsiff erred in presuming that the future rent contemplated in the decree would cover the rent for 1129 and 1130 also. He has also erred in presuming that the plaintiff's suit for rent for the year 1129 was instituted only subsequent to the date of the decree in this case, while that and another like suit for the rent for 1130 have been mentioned to have been decreed in the plaint itself.

If only he had just referred to the contents of the decree before he presumed any mistake therein and went on to correct the decree on such an assumption, this error which is so patent on the face of the record, would not have been committed. He has overlooked the provisions of Order 20 Rule 3 of the Code of Civil Procedure, and has assumed jurisdiction to correct the decree on the merits of the case, while the judgment was allowed to remain as it was. The order is therefore clearly unsustainable.

8. The learned counsel for the respondent vehemently contended that no revision lies from an order amending the decree because the party aggrieved thereby has an alternative remedy of appealing from the amended decree as such. I cannot agree with this contention. The provisions of Section 115 C. P. C. are clear enough that where an order is not appealableand that order came to be passed by a subordinate Court without jurisdiction or in excess of jurisdiction or with material irregularity, the order is revisable by this Court.

It is not disputed that no appeal lies from an order passed under Section 151 or 152. The decree in this case having been in conformity with the judgment there is no error in the decree which can be corrected under Section 152. Section 151 has no application in a matter of this kind. The amendment ordered by the Court below is obviously without jurisdiction and comes therefore perfectly within the ambit of Section 115 C. P. C.

The amendment of the decree is only a consequence of this incorrect order. After that consequence has been worked out, the party may have a right of appeal from the amended decree; but that cannot in any way bar his right to have the incorrect order itself revised by this Court under Section 115 C. P. C. I am unable to appreciate the dicta in Simhagiri Dora v. Zamindarini of Chemudu, AIR 1950 Mad 15 and Pullappa Naidu v. Venkatanarappa, AIR 1950 Mad 578 cited at the Bar to hold that the appealability of another proceeding (the amended decree) will bar the revisability of the instant order directing the amendment.

An appeal from the amended decree is a costly proceeding and cannot be said to be an equally adequate and efficacious remedy as a revision of the order to amend the decree. The distinction between the two remedies appears to me to be too obvious to be overlooked. One is a remedy against the order itself, and the other is a remedy against its after effects. They two cannot be on a par. They are not alternative remedies against the same evil.

9. As the impugned order of the court below has proceeded on obvious mistaken assumption as to the contents of the decree and was beyond the jurisdiction of the court under Sections 151 and 152 of the Code of Civil Procedure, the order cannot be sustained and I hereby vacate the same.

10. The impugned order shows further that I. A. No. 496 of 1956 filed by the 2nd defendant-tenant 'under Order 21, Rule 2 of the Code of Civil Procedure to record satisfaction of the second instalment and interest thereon payable under the decree' has been ordered in consequence of the order on R. I. A. 2385/1956 which I have set aside by this order. The order on R.I.A. 496/1956 cannot therefore subsist any more. It is also vacated hereby. The learned Munsiff will decide I. A., 496 of 1956 afresh in the light of the decision hereinabove on R. I. A. 2385 of 1956.

11. The petitioner in the C. R. P. will havehis costs from the respondent including advocate'sfee Rs. 50.


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