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K.C. Mukerjee Vs. AinaddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal563
AppellantK.C. Mukerjee
RespondentAinaddIn and ors.
Cases ReferredKisori Mohan v. Chhanga Lal
Excerpt:
- .....the appellant will get enhancement at the rate of four annas eight pies instead of two annas four pies. appeals are allowed to this extent and also as to the following khatians which are not held to be mukarrari: appeal no. 124, khatians nos. 14, 41, 132, 187, 55, 75 and 38.3. what the learned judge meant to find was that the plaintiff was entitled to claim enhancement at the rate of four annas eight pies in the rupee in respect of the khatians which were held to be nonmukarrari by the assistant settlement officer and also with respect to the seven of the 24 khatians in appeal no. 124 which were held to be mukarrari by that officer. there is no question therefore that the decree is not in accordance with the judgment.4. the next question is whether in the circumstances of this case we.....
Judgment:

Suhrawardy, J.

1. In these applications in revision the petitioner, the Official Receiver, prays that the decrees passed by the Special Judge of Tipperah, dated 23rd August 1921, in two settlement appeals be amended in the way suggested. The petitioner made several applications before the settlement officer under Section 105, Ben. Ten. Act, for settlement of fair and equitable rent, but we are concerned with only two of those cases. As the decision in one case will govern the other I will deal with Settlement Case No. 2237 of 1919 in which 110 khatians wore involved. The defence of the tenants was that their holdings were mukarrari and that the rents were not liable to be enhanced, either under Section 52 of the Act, on account of increase in area, or under Section 30-B for increase in the price of the staple food-crops. The assistant settlement officer allowed enhancement of rent in some cases under Section 52 which was not challenged in the appeals and we are not concerned with it at present. As regards enhancement under Section 30-B the assistant settlement officer found that out of 110 khatians in suit rents of 86 khatians were liable to be enhanced and the remaining 24 were mukarrari. He further held that the plaintiff was entitled to enhancement under Section 30-B at the rate of two annas four pies in the rupee. The plaintiff appealed and the learned Special Judge on appeal held that the rent should be enhanced under Section 30-B at the rate of four annas eight pies in the rupee. As regards the other holdings he held that seven out of the 24 khatians held by the assistant settlement officer to be mukarrari, were nonmukarrari of which rent was liable to enhancement at the above rate; and as regards the remaining 17 khatians, he agreed with the assistant settlement officer that they were mukarrari and their rent could not be enhanced. The decree that was drawn up following this judgment is in these words:

It is ordered that this appeal is allowed in part. Enhancement allowed at the rate of four annas eight pies instead of two annas four pies per rupee with respect to the holdings in Khatians Nos. 14, 41, 132, 187, 55, 75 and 38, which are held not to be mukarrari.

2. This decree is supposed to have been drawn up in accordance with the ordering portion of the judgment which was in these words:

The result is as follows: On those holdings held to be liable to enhancement of rent, the appellant will get enhancement at the rate of four annas eight pies instead of two annas four pies. Appeals are allowed to this extent and also as to the following khatians which are not held to be mukarrari: Appeal No. 124, Khatians Nos. 14, 41, 132, 187, 55, 75 and 38.

3. What the learned Judge meant to find was that the plaintiff was entitled to claim enhancement at the rate of four annas eight pies in the rupee in respect of the khatians which were held to be nonmukarrari by the assistant settlement officer and also with respect to the seven of the 24 khatians in Appeal No. 124 which were held to be mukarrari by that officer. There is no question therefore that the decree is not in accordance with the judgment.

4. The next question is whether in the circumstances of this case we should allow the application for amendment of the decree. I need not dilate on this question, because I have expressed at some length my view in the matter in the case of Chandra Kumar v. Sudhansu Badani Debi : AIR1924Cal895 . I have given further consideration to this question and I find myself still adhering to the view expressed there. What I have said there following several authorities on this point is that it is the duty of the Court [Kalu v. Latu [1894] 21 Cal. 259 or incumbent upon it, as some authorities put it, Langat Singh v. Janki Koer [1912] 39 Cal. 265 at p. 274).], to bring the decree in conformity with the judgment, whenever it is found differing from the latter. In the above case I have given my reasons in support of the view. But in a case of the Allahabad High Court to which my notice is drawn it is said that Section 152, Civil P.C. makes the matter discretionary with the Court. I will explain later that that case is not inconsistent with the view I entertain on this point. But I should observe here that though the word 'may' used in Section 152, Civil P.C. apparently looks as if it is within the discretion of the Court to allow such amendment, there is another provision of the Code which is mandatory and which must be obeyed that is, C. 20, Rule 6, which says that the decree shall agree with the judgment. The word 'decree' has also bean defined in Section 2, Civil P.C., as the formal expression of an adjudication. It is therefore clear that the decree must be in conformity with the judgment, and if it is not in conformity with it, it is hardly a decree within the meaning of Section 2.

5. Before proceeding farther, I should like to point out that the power given under Section 152 is neither a new one, nor does the section exhaustively express the power of. amendment given to the Court in cases of mistakes or errors arising from any accidental slip or omission in the decree. Section 152 has been copied almost verbatim from an English rule of the Supreme Court Rules Order 28, Rule 11, popularly known as the slip order. It has been held in England that Order 28, Rule 11 is not exhaustive, and the Court still possesses inherent power to rectify its own errors in the decree. In William Lawrie v. George Lees [1881]7 A.C. 19 (at pp. 34 and 35). Lord Penzanoe, L. C, is reported to have said:

I cannot doubt that under the original powers of the Court, independent of any order that is made under the Judicature Act, every Court has the power to vary its own orders which are drawn up mechanically in the office of the Court to vary them in such a way as to carry out its own meanings and where language has been used which is doubtful, to make it plain. I think that power is inherent in every Court.

6. The same view has been expressed in Langat Singh v. Janki Koer [1912] 39 Cal. 265. Whether Section 152 makes it discretionary with the Court or not to allow amendment where the decree is not in conformity with the judgment, the Court has inherent power to correct it and it should exercise that power in the interest of justice. What is meant by saying that] it is the duty of the Court or it is incumbent upon the Court to bring the decree in conformity with the judgment, is that in all cases where no equitable considerations intervene to induce the Court to refuse to exercise its power of amendment which is necessary for the ends of justice, the Court should, or to put it in stronger language, must amend the decree. The discretion, if it has any in the matter, should be exercised judicially and should not be refused except where it will be inequitable to do so. I can conceive of cases whore it would not be proper to amend the decree and the English authorities which have been followed here lay down an exception where interests of third parties have accrued since the decree in ignorance of latent defects in it.

7. There may be also other circumstances which may induce the Court in the interest of justice to refuse amendment. In Kishore Mohan v. Chhanga Lal : AIR1925All187 it is held that it is discretionary with the Court to allow the application for amendment of the decree where it is not in accordance with the judgment. The facts were that a certain decree was passed in favour of the mortgagee in which the amount decreed to him was wrongly calculated. The decree was executed, the amount mentioned in the decree was paid off and the whole chapter closed some time before the application for amendment of the decree was made on the ground that there was some mistake in calculation. The Court refused to amend the decree and to reopen the matter which had, so far as the Courts were concerned, come to an end. On the facts of that case I am of opinion that it was a proper case in which the Court rightly refused to amend the decree, for, to mention one of the grounds on which the decision in that case may be supported, the decree had ceased to be a decree any longer as it had been satisfied and was dead and extinguished. There was nothing therefore to amend. In my judgment whenever decree is found to be not in accordance with judgment, it should be brought into conformity with it unless circumstances exist which would make it inequitable to do so. So far and so far only the exercise of the power may be said to be discretionary.

8. The next question is of delay in making the application. The decree was passed in September 1921. There was an appeal to this Court which was dismissed on 17th February 1927, and this application was made in March 1930. Should it be considered as delay fatal to the prayer for amendment of the decree The English authorities on this point are quite explicit. They say: No amount of delay should disentitle a party from securing amendment of the decree, where it is not in conformity with the judgment, provided nothing has happened in the meantime to justify a refusal. In H.W. Hatton v. H. Harris [1895] A.C. 547 at p. 558 the decree was about 40 years old and the question of delay was considered by Lord Herschell, L. C, who made the following observations on this point:

Now the terms of the general order are clear, that such a correction may be made at any time. It is true that many years have elapsed since the date of this order; but on the other hand nothing has been done since the date of this order until recently, when the money being found in Court the matter was revived. I cannot see any difference in the circumstances of this case from what they would have been if the matter had arisen immediately after judgment was pronounced.

9. Then the learned Lord Chancellor proceeds to observe:

There may possibly be cases in which an application to correct an error of this description would be too late. The rights of third parties may have intervened, based upon the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous.

10. In the case of Shipwright v. Clements [1890] 38 W.R. 746 the decree was 29 years old and was amended. The principle as suggested by Lord Chancellor in Ration's case [1895] A.C. 547 referred to above is that where the circumstances remain in the same state in which they were when the judgment was pronounced there is do reason why a wrong decree should not be put right after any length of time. It is to be supposed as if the prayer for amendment has followed the preparation of the wrong decree, the intervening period not having altered the situation. This view has been endorsed by this Court in Langat Singh's case [1912] 39 Cal. 265 referred to above.

11. Next comes the question as to whether the petitioner has been able to make out a case for the exercise of our discretion, supposing we have one. The petitioner is the Official Receiver, a public officer, who has a large number of estates to administer. He swears that the mistake was first discovered when the property was about to be partitioned under the Estates Partition Act. There is no statement on oath on the other side contradicting the petitioner's allegations. The only thing that can be said against him is that his lawyers ought to have discovered that the decree was not in accordance with the judgment and that it was gross negligence on their part that they did not do so or having done so did not take any steps in the matter. I am not sure that there was gross negligence on the part of the petitioner's lawyers though I think it would not disentitle him from seeking a legal remedy like the present. It appears from a copy of the decree that it was signed, after it was prepared, by the pleaders of the parties. But having some experience of the mofussil Courts I may say that the pleaders hardly take the trouble of comparing decrees with judgments before they sign the decrees as they take it as a matter of routine. The lawyers who were in charge of filing the appeal in this Court can hardly be blamed, because the grounds of appeal are prepared not from the decree but from the judgment. It is quite conceivable that none of them noticed the mistake or had any occasion to look into the decree to find that there was anything wrong in it. I am quite prepared to believe the uncontradicted statement of the petitioner that for the first time the mistake was discovered when the estate came under partition only recently. But according to the view which I have expressed above I do not think that delay or negligence or laches of the petitioner in making the application for amendment of the decree should stand in his way or prevent him from claiming relief against an error of the Court. That the decree must follow the judgment is a statutory provision of law and that provision cannot be defeated by the laches of any party. Even if the Court itself ever discovers the mistake, without an application from any party, it should be incumbent upon it to order the necessary amendment of the decree.

12. It is not suggested that interest of third parties in the holding in suit have come into being bona fide since the decree. If they have, the order I make will not affect them. In this view of th6 matter I would make these Rules absolute and direct that the decrees be amended so as to bring them into conformity with the judgment on the line suggested in the petitioner's petition. As my learned brother takes a different view in the matter let the papers be placed before the Hon'ble Chief Justice for necessary orders.

Graham, J.

13. With all respect for the opinion held by my learned brother I regret that I am unable to agree.

14. The Rules were issued on the opposite party to show cause why decrees of this Court dated 3rd March 1927 should not be amended by including therein certain khatians which had been found by the Special Judge to be liable to enhancement at the rate of 4 annas 8 pies per rupee, but which had by mistake been omitted in the decrees.

15. The matter arises out of certain applications which were made by the petitioner under Section 105, Ben. Ten. Act, for settlement of fair rent. The assistant settlement officer allowed enhancement of the rents, on the ground of rise in the price of staple food crops, at the rate of 2 annas 4 pies per rupee in the case of some of the raiyats, and disallowed enhancement in other cases on the ground that the raiyats were entitled to the benefit of the presumption under Section 50, Ben. Ten. Act.

16. There was then an appeal by the present petitioner to the Special Judge who decided that in respect of these holdings which had been held to be liable to enhancement, the appellant would get enhancement at the rate of 4 annas 8 pies per rupee instead of 2 annas 4 pies, and the appeals were allowed to that extent.

17. In para. 3 of the petition it is stated that in regard to the 24 khatians held by the trial Court to be mukarrari the learned Judge allowed the appeal in respect of 7 khatians and dismissed it as to the 17 khatians found by him to be mukarrari. When however the appellate decrees were drawn up these directions were, it is said, entirely overlooked and enhancement was decreed only as regards the seven khatians, which had been held to be not mukurrari reversing the decree of the trial Court, the decree as drawn being silent as to the remaining khatians which had been held to be not mukurrari and liable to enhancement at the rate of 4 annas 8 pies instead of 2 annas 4 pies. In these circumstances the petitioner claims that the decree is not in conformity with the judgment, and that he is entitled to have the decree amended as prayed for by him. Now before proceeding further it is necessary at the outset to see precisely what the finding of the learned Special Judge was. The material portion of his judgment may be quoted:

The result is as follows: On those holdings held to be liable to enhancement appellant will get enhancement at the rats of 4 annas 8 pies instead of 2 annas four pies. The appeals are allowed to this extent, and also as to the following khatians which are held not to be mukurrari.

Appeal No. 124 khatians 14, 41, 132, 187, 55, 75, 38; Appeal No. 125 khatians 102, 197, and 79; Appeal No. 132 khatians 25, 64, 57, 12. In this case however khatian 22 should be corrected. It is mukurrari and not liable to enhancement awarded. Appeal No. 129 khatian 13. Appeal No. 130 khatians 54 and 66. Appeal No. 131 khatian 18. Appeals 125, 128 and 127 are dismissed.

18. The above extracts give a total of 18 khaitans in eight appeals. In respect of one of these khatians, No. 57 of Appeal No. 132 there was a subsequent order made in review on 17th December 1921 holding that it was mukurrari and not liable to enhancement. There were thus left 17 khatians in regard to which it was plainly the intention of the Special Judge that enhancement should be allowed at 4 annas 8 pies per rupee instead of 2 annas 4 pies. But the decree as drawn up allowed enhancement in respect only of the batch of seven khatiana mentioned above in Appeal No. 124, and that portion of the judgment which allowed the appeals in respect of the other khatians mentioned therein was apparently overlooked. There can be no doubt that, so far as these khatians are concerned, the decree is not in accordance with the judgment.

19. The question which then arises is whether it is the bounden duty of the Court to make the amendment prayed for, or whether in the particular circumstances, which have happened in this case, the Court has a discretion to refuse such amendment. It is no doubt the general rule that a decree should be in conformity with the judgment. Order 20, Rule 6, Civil P.C., provides that 'the decree shall agree with the judgment.' At the same time Section 152 of the Code, which deals with the amendment of decrees and orders, is in its language discretionary, ,and it cannot in my judgment be laid down as a hard and fast rule that amendment must be allowed as a matter of course in every case regardless of its particular facts. It is true there is no period of limitation for an application of this description, but where as here there have been gross and inexcusable laches ion the part of the petitioner the application ought not in my opinion to be granted. The facts in this connexion are very damaging to the petitioner. The decree of the Special Judge was made as long ago as 15th September 1921, nearly ton years ago. Although according to the petitioner it was not in conformity with the judgment in a very important respect and was seriously prejudicial to his interest, no application was made to the Special Judge to amend it notwithstanding the fact that attention was invited to the decree as a consequence of the review application previously referred to of 17th December 1921 (made apparently at the instance of some of the defendants). The decree moreover had presumably in accordance with the usual practice been signed by the plaintiffs' pleader. It was certainly the plaintiffs' duty to satisfy himself of its correctness.

20. The matter does not however end there. The appeal to this Court, which was filed on 5th January 1922, was not disposed of until 17th February 1927, and even then during this interval of more than five years the plaintiff took no steps to rectify the matter, and remained silent. After sleeping over his rights it is only now after a still further delay of more than four years that he has discovered the mistake and asks that it may be rectified.

21. The learned advocate who appeared for the petitioner relied in support of the Rules on a decision of this Bench in the case of Chandra Kumar v. Sundhansu Badnai : AIR1924Cal895 . In that case the decree was amended, but the facts were different from those in the present case, and each case must be decided according to its own particular circumstances. My learned brother Suhrawardy, J., delivered the main judgment in that case, and I agreed that the Rule should be made absolute. My learned brother in the course of his judgment expressed his opinion as to the meaning of the word may' in Section 152, Civil P. C, and held that it does not confer any discretion on the Court to refuse amendment, but merely enlarges the power of the Court by providing that such an amendment can be made 'at any time.'

22. I do not think that my agreement that the Rule should be discharged necessarily implied that I concurred as regards this particular point, though some reference should perhaps have been made by me to it. However that may be I am with great respect definitely unable to agree with the interpretation which my learned brother then placed upon the meaning of the word 'may' in this section. The words may' and shall' which occur in many statutes are used in contradistinction it being, I think, generally recognized that while the use of the word 'shall' imports something that is obligatory, the word 'may' confers discretion. It is an accepted canon in the interpretation of statutes that words used should be construed in their plain, ordinary and literal meaning. If the legislature had intended that amendment of a decree must be allowed as a matter of course regardless of circumstances it would presumably have used the word 'shall' and not 'may.' In my opinion the correct view upon this point has been taken by the High Court of Allahabad in the case of Kisori Mohan v. Chhanga Lal (5), namely, that a party has no right to have a clerical or arithmetical mistake corrected, that the matter is left to the discretion of the Court, and that that discretion should be exercised in view of the particular facts of each case. In that case the applicant was found to have been guilty of serious laches, and the Court declined to interfere in revision. I think that our decision should be the same in this case. If, as I hold, Section 152 of the Code is discretionary, it would be difficult to imagine a case affording less justification for the exercise of that discretion. It seems too to be plain that the consequence of allowing an application made in circumstances such as have occurred here would be to encourage litigants in negligence. I find it difficult to believe that it was the intention of the legislature that this power of amendment should be claimed from the Court as a right no matter what the circumstances of the case may have been, and as I have already said, if that had been intended, the section would have been differently worded. The use of the word may,' where it would have been just as easy to say ''shall' suggests to me that it was used designedly, and that it means what it says.

23. There is another aspect of the matter which is sometimes taken into consideration in dealing with applications of this nature and that is the possibility that the rights of third parties may have intervened, and that amendment of the decree may perhaps result in complications or inequity. No such allegation appears to have been made here, but the possibility of such consequences cannot be overlooked having regard to the length of time which has elapsed since the decrees were passed. For the reasons which I have given, my conclusion is that the Court has a discretion, and that in the particular circumstances which have happened this is not a fit case for the exercise of that discretion. In my judgment the Rules should be discharged. (On difference between their Lordships, the case came before Ghose, J., who delivered the following judgment:)

C.C. Ghose, J.

24. I have had an opportunity of reading these papers and in my opinion, it is unnecessary to set out the facts herein; the fact3 are set out exhaustively in the two judgments which are before me. There is no dispute about the law applicable to cases of this nature; so far as the law is concerned there is, nothing in the judgment of Suhrawardy, J. with which I am not in agreement; but the question is whether in the circumstances of these particular cases, there has been a sufficient explanation for the delay that has taken place. Having examined the facts for myself, I have arrived at the conclusion that no sufficient case has been made out for an order such as the applicant seeks in these cases. Each case must depend upon its own facts and no hard and fast rule can be laid down. It is said that the matter was completely overlooked and that accounts for the delay. I pay no attention to a statement of this nature and I should be sorry if it were held that because the applicant happens to be the Official Receiver, that in itself is sufficient to entitle him to an. indulgence which is not usually granted to other litigants. In my opinion, these. Rules ought to be discharged and I rest my decision on the ground that the delay disclosed in these papers cannot be overlooked and excused. There will be no separate order for costs, as I understand that the Deputy Registrar's costs have been paid.


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