Important Points
1. Exercise of power under Section 152 CPC contemplates the correction of mistakes by the Court of its Ministerial actions and does not contemplate of passing effective judicial order after the judgment, decree or order; the section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be.
2. Where in the works contract, the party entrusting the work committed breach of contract, the contractor is entitled to claim the damages for loss of profit which he expected to earn by undertaking the works contract. Claim of expected profits is legally admissible on proof of the breach of contract.

Headnote:(i) Code of Civil Procedure-Section 152 - Scope and ambit of provision-Corrections contemplated by Section 152 are of correcting only accidental omissions or mistakes-Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be-It does not contemplate passing of effective judicial orders after judgment, decree or order.
       Held : Section 152 C.P.C provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No Court can under the cover of the aforesaid sections modify, after or add to the terms of its original judgment, decree or order. (Para 6)
       In the instant case, the trial Court had specifically held the respondents-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the court had rejected the claim of the appellant in so far as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial Court while order dated 30th November, 1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State. (Para 6)
       (ii) Indian Contract Act, 1872-Section 73-Breach of contract-Compensation for loss or damage-Contract to construct hostel-Part of work not completed within time schedule allegedly due to obstruction of Superintending Engineer-Contract rescinded-Suit for damages at 10% of work which would have been completed-Decree by trial Court-High Court rejecting claim for damages on ground contractor did not incur any obligations and suffered less on account of that-Finding as to breach of contract upheld by High Court-Denial of damages not justified-Claim of expected profit is legally admissible on proof of breach of contract.
       Held : Damages can be claimed by a contractor where the government is proved to have committed breach by improperly rescinding the contract and for estimating the amount of damages court should make a broad evaluation instead of going into minute details. Where in the works contract, the party entrusting the work committed breach of contract, the contractor is entitled to claim the damages for loss of profit which he expected to earn by undertaking the works contract. Claim of expected profits is legally admissible on proof of the breach of contract. (Para 9)
       The claim of the petitioner for payment of Rs. 20,000/- as damages on account of breach of contract committed by the respondent-State was disallowed by the High Court as the appellant was found to have not placed the material on record to show that he had actually suffered any loss on account of the breach of contract. In this regard the appellate court observed. “It is not his case that for due compliance of the contract he had advanced money to the labourers or that he had purchased materials or that he had incurred any obligations and on account of breach of contract by the defendants he had to suffer loss on the above and other heads. Even in regard to the percentage of profit he did not place any material on record but relied upon assessment of the profits by the Income Tax Officer while assessing the income of the contractors from building contracts.” Such a finding of the appellate court appears to be based on wrong assumptions. The appellant had never claimed Rs. 20,000/- on account of alleged actual loss suffered by him. He had preferred his claim on the ground that had he carried out the contract he would have earned profit of 10% on Rs. 2 lacs which was the value of the contract. (Para 9)
       The trial Court had granted only 10% of the contract price which we feel was reasonable and permissible, particularly when the High Court had concurred with the finding of the trial Court regarding breach of contract by specifically holding that “we therefore see no reason to interfere with the finding recorded by the trial Court the defendants by rescinding the agreement committed breach of contract”. It follows therefore as and when the breach of contract is held to have been proved being contrary to law and terms of the agreement, the erring party is legally bound to compensate the other party to the agreement. The appellate court was, therefore, not justified in disallowing the claim of the appellant for Rs. 20,000/- on account of damages as expected profit out of the contract which was found to have been illegally rescinded. (Para 9)

Judgment

Sethi, J.-In response to the tenders invited by the respondent-State, the appellant herein was allotted the work for the construction of a hostel for 100 boys at polytechnic Ujjain for which agreement (Ex. P 22) was executed between the parties on 26th December, 1960. The entire work was required to be completed within 29 months with further condition that 1/4 of the work was to be completed within 5 months, half the work to be completed within 10 months and 3/4 work was to be completed within 15 months. The work order was issued to the appellant on 26th December, 1960 who started construction on 28th December, 1960. Superintending Engineer is alleged to have obstructed the progress of the work with the result that the work could not be completed within the time schedule. The contract executed between the parties was rescinded by the respondents vide letter dated 19.6.61 on the ground that the appellant had not completed even 10 per cent of the work despite lapse of more than 9 months. The appellant however, contended that the termination of the contract was in breach thereof. He claimed Rs. 20,000/- as damages for breach of contract besides claiming other amounts payable by the respondent to him. Suit for the recovery of Rs. 32,000/- filed by the appellant was decreed with a direction that the appellant would also be entitled to future interest @ 6 per cent per annum.

2. After the decree of the trial Court the appellant filed an application under Section 152 of the C.P.C. praying for awarding of interest from the date of the suit till the date of the decree by correcting the judgment and decree on the ground that non awarding of interest pendente lite was an accidental omission. The trial Court allowed this application and directed the correction of the judgment and decree by awarding interest pendente lite.

3. Aggrieved by the judgment and decree of the trial Court, the respondent-State filed the First Appeal No. 86 of 1973 and against the order passed in application under Section 152, Revision Application No. 145 of 1974. The High Court vide the order impugned herein partly allowed the appeal by holding the respondents-State liable to pay only a sum of Rs. 4,783.33 to the plaintiff with interest at the rate of 6 per cent per annum. Civil Revision No. 145 of 1974 was allowed and the order of the trial Court granting interest pendente lite was set aside.

4. We have heard learned counsel for the parties and perused the record.

5. Learned counsel appearing for the appellant has vehemently argued that High Court was not justified in setting aside the order of the trial Court passed on 30th November, 1973 by which his client was granted pendente lite interest. It is submitted that the non granting of the interest for the period of litigation was an accidental omission which was rectified by the trial Court. In support of his contention he has relied upon the judgments in Jainab Bai and Ors. v. Madhya Pradesh State Road Transport Corporation1, Feroz Shah v. State2, Maharaj Puttu Lal v. Sripai Singh and Ors.3, West Bengal Financial Corporation and Anr. v. Bertram Scott (I) Ltd.4.

6. Section 152 C.P.C provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be cor

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1999 Supreme(SC) 168

Cases Referred (4)