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Ram Prasad Vs. Shri Kishan and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil First Appeal No. 124 of 1962
Judge
Reported in1969WLN385
AppellantRam Prasad
RespondentShri Kishan and anr.
DispositionAppeal allowed
Cases Referred and Mst. Govindi Bai v. Mahendra Kumar
Excerpt:
.....bales of cotton and that the defendant had failed to abide by the contract in as much as he refused to accept delivery of the same and further that it could not possibly be held that the plaintiff was estopped from pursuing his present claim by anything contained in ex. 11. as has been stated, modi, j, clearly recorded the finding that the 254 bales of cotton were purchased by the plaintiff for rs. plaintiff shri kishan clearly and categorically stated before modi, j. this is therefore clearly a case in which an accidental error crept in the judgment of modi, j. 136, so that it cannot be doubted that they lay down the correct law for this country as well reference in this connection may also be made to hementa kumar ghosh and ors......transactions of purchase in the trial court as follows-no. of persons from whom price evidencebales purchased rs. as. ps.60 bales chuni lal chandan mal 11,157-7-6 ex. 1719 bales gadmal mangilal 3,900-4-9 ex. 1833 bales harak chand kanmal 7,786-9-6 ex. 1825 bales motilal mangilal 4,162-8- ex. 1832 bales mewar textile corp 7, 282-4- ex. 1822 bales self 3,953-15-9 ex. 1825 bales roopchand virdichand 4,153-11-9 ex. 1838 bales balchand nathulal 6, 629-11-9 ex. 18-------------49,026-9-this made a total of rs. 49,026-9-, but the trial court added the item3 so as to make a total of rs. 49,276-12-6, it is therefore obvious that the trial court made an arithmetical error in adding up the price which was paid for the various transactions of purchase, and i have no doubt that this arithmetical.....
Judgment:

P.N. Shinghal, J.

1. This appeal arises from the judgment and decree of learned District Judge, Bhilwara, dated November 5, 1962. The case came before this Court on an earlier occasion and the facts have been mentioned at length in the judgment of Modi, J. dated September 9, 1961, in S.B. Civil Regular First Appeal No. 24 of 1956. As this appeal succeeds on a short but sure point, it is not necessary for me to state the facts at length.

2. It will be sufficient to say that the plaintiff carried on the business of commission agency in the name of Ganesh Das Shri Krishn, in Bhilwara. He pleaded that Ram Parshad (defendant No. 1), the present appellant, purchased 73 bales of cotton from him, through his agent Kanhayalal (defendant No. 2) in two instalments, in Sambat 2005, costing Rs. 11,208/12/6, and paid Rs. 11,084/7/6, so that Rs. 124/5- remained due from him on that account. There is no dispute regarding this liability. The plaintiff further pleaded that the defendant purchased 264 bales from him on Asadh Bud 3, S. 2005, through his agent Kanhayalal (defendant No. 2), but as the transaction did not materialise for 10 bales, the plaintiff claimed the price of the remaining 254 bales. The plaintiff pleaded that he purchased the 254 bales for Rs. 59,2/6/12/6 and was entitled to recover that amount because the defendant resiled from the contract and did not carry it out pay the price in spite of notice. The plaintiff therefore sold the 254 bales in the open market for Rs. 54327/-/6 and claimed that he was entitled to the balance of Rs. 4,949/12/-. After adding Rs. 124/5/- due on the earlier transaction of 73 bales and Rs. 625/6/- on account of interest, the plaintiff sued for the recovery of Rs. 5,699/7/- with pendente lite and future interest.

3. Kanhayalal (defendant No. 2) admitted having purchased 73 bales and 254 bales of cotton on behalf of Ram Pershad (defendant No. 2) and by his authority, as alleged by the plaintiff Defendant Ram Pershad, however, traversed the claim. He admitted having purchased 73 bales from the plaintiff, but pleaded that the purchase was not made through defendant Kanhayalal and denied the allegation that Kanhayalal was his agent at any time He denied the purchase of 254 bales, or the claim for the recovery of any loss on that transaction. He pleaded further that there could be no loss to the plaintiff because the price of the cotton had shot up considerably. Certain other pleas were taken in the alternative but they are not now relevant.

4. The plaintiff filed a replication reiterating and clarifying certain points. The trial court framed a number of issues. It will be sufficient to say that issue No. 1, inter alia, covered the question whether Kanhayalal defendant No. 2 purchased the bales as the agent of the plaintiff. Issue No. 4 dealt with the question whether the plaintiff incurred an outlay of Rs. 59, 276/12/6 on the purchased of the 254 bales of cotton and whether those bales were sold for Rs. 54,327/-/6 putting the plaintiff to a loss of Rs. 4,949/12/-.

5. The trial court reached the conclusion that Kanhayalal defendant No. 2 made the purchase of 73 bales of cotton as the agent of Ram Pershad defendant No. 1, but that the plaintiff did not succeed in proving that he was the agent of Ram Pershad (defendant No. 1) in regard to the purchase of the 254 bales. It also held, that the plaintiff spent a sum of Rs. 59,276/12/6 on the purchase of the 254 bales and suffered a loss of Rs. 4,949/12/- because they fetched only Rs. 54,327/-/6 on sale. That court therefore dismissed the suit against defendant Kanhayalal but decreed it for Rs. 124/5/- against defendant Ram Pershad on account of the transaction of 73 bales, and also allowed Rs. 4/- by way of interest totalling to Rs. 128/5/-, with pendente lite and future interest.

6. The plaintiff preferred an appeal which was laid before Modi, J., and was decided by him on September 9, 1961 as aforesaid. The learned Judge reached the conclusion that defendant Kanhayalal was a fully authorised agent of defendant Ram Pershad in regard to the suit transactions. He has therefore held as follows,:

The position to which we then come is that the defendant Kanhayalal was the agent of the defendant Ram Pershad in relation to the transaction of 254 bales of cotton and that the defendant had failed to abide by the contract in as much as he refused to accept delivery of the same and further that it could not possibly be held that the plaintiff was estopped from pursuing his present claim by anything contained in Ex. D-1. As it has not been contested before me in this appeal that the 254 bales of cotton were purchased by the plaintiff for the sum of Rs. 59,276/12/6 as alleged by him, I held that the finding of the learned trial Judge in this connection is correct.

As this was not enough to dispose of the case and as it was felt that the question of damages depended on the date of breach of the contract, in respect of which there was no pleading or evidence on the record, the learned Judge allowed the plaintiff to amend the plaint, and directed the trial court to take further proceedings and decide the case afresh subject to the findings mentioned above. In making the order of remand, the learned Judge went on to observe that,-

the defendant will not be at liberty to raise any further contentions in the trial court except in so far as these do relate to the correctness or otherwise of the alleged date of breach and/or as to the rates of cotton which prevailed on or about such date in the market at Bhilwara having regard to the various qualities of cotton which had been purchased by the plaintiff for the defendant on the 24th June, 1948, and which, as pointed out above, he as commission agent was bound to sell in the market to mitigate the damages, because the defendant having resiled from the contract had refused take delivery of the goods.

7. The case accordingly went back to the District Judge who framed 3 issues and after recording the evidence of the parties reached the conclusion that defendant Ram Pershad committed a breach of the contract on or about Ashadh sud 8, S. 2035 and the plaintiff was entitled to recover Rs. 4,932/12/6 on account of damages. In arriving at this figure, the learned Judge went by the finding of Modi, J., that the plaintiff had incurred the outlay of Rs. 59,276/12/6 in purchasing the 254 bales, on the ground that this figure could not be 'disturbed or disputed'. As however the plaintiff had claimed Rs. 4, 390/6/3 on account of the loss, the learned trial Judge added a sum of Rs. 124/5/- on account of the loss on the earlier transaction of 73 bales and held that that plaintiff was entitled to recover Rs. 4,514/11/3. He allowed Rs. 169/1/- by way of interest and-decreed that suit for Rs. 4,683/12/3 with pendente lite and future interest at 6 per cent per annum of Rs. 4,514/11/3. Proportionate costs were also allowed to the plaintiff. It is in these circumstances that defendant Ram Pershad has preferred the present appeal.

8. It so happened that the appeal initially depended judgment of on Modi, J. The learned Counsel for the parties admit that an argument was made before him that the trial court committed an error in assessing the damages on the basis that the price of the 254 bales of cotton Rs. 59,276/12/6 whereas it was Rs. 49,589/14/3. Modi, J., therefore made order on October 26, 1966 as follow,-

In the interest of justice and in order to be able to pronounce a proper judgment in this case I am of opinion that the plaintiff Shri Kishan be summoned in court to satisfy it as to whether the exact cost of 254 bales in suit was Rs. 59,276/12/6 or that it was really Rs. 49,589/14/3 according to the entries of his own books and that the figure of Rs. 59,276/12/6 was a pure and simple error of calculation. I order accordingly.

The learned Judge accordingly recorded the statement of the plaintiff on December 6, 1966. He admitted in his statement that he purchased the 254 bales of cotton of cotton for Rs. 49,581/4/6. He further admitted that the price was mentioned in his plaint as Rs. 59,276/22/6 because he made two Hundis on defendant Ram Pershad and debited Rs. 9,695/8/- on that account so as to make a total of Rs. 59,276/12/6. After the statement of the plaintiff was recorded, the case could not be heard and decided by Modi, J., because of his retirement.

9. It is in these facts and circumstances that I have to decide this appeal.

10. The only question which has been raised before me is whether it is open to the defendant-appellant to contend in this Court that the purchase price of the 254 bales was Rs. 49,581/4/6, and not Rs. 59,276-12-6? It is not in dispute that if this contention is held to be maintainable, the plaintiff will not be entitled to recover any amount from the defendant-appellant and his suit will have to be dismissed for the simple reason that there will then be no question of any loss to him.

11. As has been stated, Modi, J, clearly recorded the finding that the 254 bales of cotton were purchased by the plaintiff for Rs. 59,276.12,6. He also observed that the defendant would not be at liberty to raised 'any further contentions' in the trial court except those relating to the date of the alleged breach of the contract and the price of the cotton at that time. The judgment of Modi. J., was covered by a decree of this court. The controversy before therefore centres round the question whether the question of the price of 254 bales of cotton is open for argument in this appeal?

12. It has been argued by Mr. Bharagava, learned Counsel for the plaintiff-respondent, that it was not deputed before Modi, J, that the 254 bales of cotton were purchased by the plaintiff for Rs. 59,276,12,6 and the learned Judge recorded a finding to that effect. It has also been pointed out that he shut out any further controversy on the points decided by him and remitted the case to the trial court for deciding the remaining points. The learned Counsel has therefore argued that this Court cannot review or modify the judgment of Modi, J., suo motu. He has supported his argument by a reference to Jiwan Dass v. Rakhmat Din and Anr. AIR 1941 Lah. 212 and Asutosh Ghosh and Anr. v. Indu Bhusan Ghosh AIR 1927 Cal. 158. The learned Counsel has also argued that the finding of Modi, J., regarding the price of the 254 bales was incorporated in his judgment and the covering decree, so that it became final and will operate as res judicata and this Court cannot modify that finding under Sections 151 or 152 C.P.C.

13. In order to appreciate the controversy, it is necessary to recall the basic J facts. Plaintiff Shri Kishan clearly and categorically stated before Modi, J. on f December 6, 1966 that he purchased the 254 bales of cotton for Rs. 49,581-4-6. The J correctness of this amount is not disputed before me. Modi, J, however recorded a finding on September 9, 1961 that that purchase price was Rs. 59,276- 12-6. It is therefore quite obvious that his finding was inaccurate, and the question is whether the mistake is clerical or accidental or arithmetical, or whether is was the j meaning and intention of Modi, J., that the purchase price should be held to be Rs. 59.276-12-6 in all circumstances?

14. As has been stated, it was not disputed before Modi, J., that the 254 bales of cotton were purchased by the plaintiff for Rs. 59,276,12,6 as alleged by him. The learned Counsel for the parties agree that the absence of the dispute was not wilful, but was due to a mistaken impression on the part of defendant Ram Pershad that the plaintiff's assertion that he had purchased the 254 bales of cotton for Rs. 59,276-12-6 was correct. It is also not disputed that the plaintiff on his part, honestly believed that to be the correct purchase price of the bales. Thus both the parties laboured under a common mistaken belief that the price of the 254 bales was Rs. 59,276-12-6 and it is not surprising that this inadvertant mistake crept in the judgment of Modi, J. The learned Judge was not called upon to examine and record his own finding in that regard, and it is impossible to hold that it was his meaning and intention that Rs. 59,276-12-6 should be held to be the purchase price of the bales on the basis of the evidence on the record and inspite of a controversy regarding its correctness. The learned Judge merely accepted the allegation of the plaintiff that he purchased the bales for Rs. 59,276-12-6 because it was not disputed before him that this was not so. It is therefore apparent that the learned Judge meant to accept the plaintiff's assertion regarding the price; and now that the plaintiff has admitted that the price was Rs. 49,58-14-6, it cannot he said that Modi, J. would not have held that to be the purchase price if the correct figure had been brought to his notice. I have no doubt therefore that it was the meaning and intention of the finding of Modi, J., that the correct price stated by the plaintiff should be held to be the purchase price of the bales. The matter is in fact not capable of any other interpretation. This is therefore clearly a case in which an accidental error crept in the judgment of Modi, J., because of the plaintiff's inaccurate statement, and there is no reason why, in these facts and circumstances, effect should not be given to the true meaning and intention of the finding of the learned Judge even though the finding was recorded in his judgment which, in turn, happened to be covered by a decree of this court.

15. There is one more reason for this view. Plaintiff Shri Kishan P.W. 15 recorded his statement in the trial court as there was a dispute on the question whether he spent Rs. 59, 276-12-6 on the purchase of the 254 bales of cotton. This was the subject-matter of issue No. 4. The plaintiff gave details of the various transactions of purchase in the trial court as follows-

No. of Persons from whom Price Evidencebales Purchased Rs. As. Ps.60 bales Chuni Lal Chandan Mal 11,157-7-6 Ex. 1719 bales Gadmal Mangilal 3,900-4-9 Ex. 1833 bales Harak Chand Kanmal 7,786-9-6 Ex. 1825 bales Motilal Mangilal 4,162-8- Ex. 1832 bales Mewar Textile Corp 7, 282-4- Ex. 1822 bales Self 3,953-15-9 Ex. 1825 bales Roopchand Virdichand 4,153-11-9 Ex. 1838 bales Balchand Nathulal 6, 629-11-9 Ex. 18-------------49,026-9-

This made a total of Rs. 49,026-9-, but the trial court added the item3 so as to make a total of Rs. 49,276-12-6, It is therefore obvious that the trial court made an arithmetical error in adding up the price which was paid for the various transactions of purchase, and I have no doubt that this arithmetical error went undetected and led to the inaccuracy in the judgment of Modi, J., when he recorded the finding that the 254 bales were purchased for Rs. 59,276-12-6. In reaching that conclusion the learned Judge relied on the allegation of the plaintiff to that effect and did not recalculate the total. This is why the arithmetical mistake was not detected at that stage. It appears to have been noticed when the case went back to the trial court on remand, but the learned trial Judge ruled out the correction for the reason that the High Court having held that the plaintiff spent Rs. 59,276-12-6 in purchasing the 254 bales for the defendant, that figure could not be disturbed or disputed before him.

16. As it is quite obvious that the mistake was arithmetical, and as for the other reason mentioned earlier I have further reached the conclusion that it arose out of an accidental slip, there is no reason why this Court should not give effect to the true meaning and intention of Modi, J., in recording the disputed finding. I am fortified in this view by the decision in In re, Swire Mellor v. Swire 30 Ch. D. 239. In that case an order of the Court of Appeal was drawn up, passed, and entered. A motion was made to vary the order thereafter. Cotton, L.J. examined the case with reference to what their Lordships intended to decide on the earlier occasion and observed as follows-

It is only in special circumstances that the Court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the Court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the Court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.

17. In his turn, Lindley L.J. made the following observation in the same case-

There is no such logic 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.

It appears to me, therefore, that if it is once made out that the order whether passed and entered or not, does not express the order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.

Bowen L.J. agreed with the Lord Justice Cotton and held as follows-

An order, as it seems to me, even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice.

The learned Judge held that there was an inherent power in the court to do what was asked, and the correction was ordered.

18. A similar point arose for consideration in Ainsworth v. Wilding (1896) 1 Ch. 673. In that case there was a motion to discharge a judgment given at the trial of the action, notwithstanding the fact that the judgment had been passed and entered. In that connection Romer J., made the following important observation-

So far as I am aware, the only cases in which the Court can interfere after the passing and entering of the judgment are these : (1) Where there has been an accidental slip in the judgment as drawn up--in which case the Court has power to rectify it under Order XXVIII, Rule 11; (2) when the Court itself finds that the judgment as drawn up does not correctly state what the Court actually decided and intended.

The learned Judge referred with approval to the decision In re Swire 30 Ch. D. 239; and Ainworth's case (1896) 1 Ch. 673 in its turn, has become the leading judgment on the point.

19. The decision in In re; Swire 30 Ch. D. 239 has been reffered with approval in Mac Carthy v. Agard (1933) 2 K.B.D. 417, and so also the decision in Ainsworth v. Wilding (1896) 1 Ch. 673. v. The judgments in In re : Swire 30 Ch. D. 239 and Ainsworth (1896) 1 Ch. 673 have been cited with approval by their Lordships of the Privy Council in R.M.K.R.M Somasundaran Chetty v. M.R.M.V.L. Subramanian Chetty AIR 1926 P.C. 136, so that it cannot be doubted that they lay down the correct law for this country as well Reference in this connection may also be made to Hementa Kumar Ghosh and Ors. v. Rajendra Mandal and Ors. XXXIX Cal. W. 1295 in which also the aforesaid two cases have been cited and followed.

20. It follows therefore that this Court can (i) correct a clerical or arithmetical mistake in its judgment, decree or order, or an error arising from an accidental slip or omission, (as has specifically been provided in Section 152 C.P.C); and (ii) if the judgment as drawn up does not correctly state what the court actually decided and intended, the court can vary the judgment so as to give effect to its meaning and intention (under its inherent powers). Reference in this connection may be made to Khudu Mahto v. Bhim Mahto and Ors. : AIR1950Pat183 , and Mst. Govindi Bai v. Mahendra Kumar 1953 RLW 379.

21. In this case, as has been stated, there was an arithmetical mistake in calculating the price which the plaintiff paid for the purchase of the 254 bales of cotton It was not an intentional mistake, but it arose unwittingly from a slip on the part of all concerned, and it naturally found its way in the judgment of Modi, J., as it was not detected up to that stage. The mistake can therefore be corrected at this stage. Moreover, as has been stated, it was not the intention of Modi, J., to decide that the purchase price should be held to be Rs. 59,276-12-6. It is true the judgment of Modi, J., stating the sale price to be Rs. 59,726-12-6 does not record what the learned Judge actually decided and intended, I have no hesitation in holding that the correct price for the purchase of the 254 bales of cotton was Rs. 49,581-4-6. It is not disputed that the bales were sold for Rs. 54,344-2-6. To say the least, the plaintiff did not therefore lose any thing in the transaction and is not entitled to succeed in his claim for the recovery of damages. Accordingly, the appeal succeeds, the impugned judgment is set aside and entered for the defendant by dismissing the suit with costs here and below.


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