IMPORTANT POINT
Omission sought to be corrected in a judgment, decree order which goes to merits of the case is beyond the scope of Section 152 CPC.

Headnote:Civil Procedure Code, 1908-Section 152-Correction of clerical or arithmetical mistakes in judgment, decree or order-Power not to be equated with power of review nor akin to review-Provision could not be pressed into service to correct an omission which was intentional, however erroneous it might be-Respondent was removed from service-He made representations and Government by order reappointed him as Junior Compositor on temporary basis as new appointee-Suit for declaration was filed claiming all benefits as continuing service-Lower appellate Court decreed suit but liberty to department to grant plaintiff or not to grant him increments for past service and whether he was fit to be promoted-Directions deleted in application filed by respondent under Section 152 CPC-Appeal by State was dismissed by High Court-Appeal-1st appellate Court was not justified in exercising power under Section 152 CPC and impugned judgment relatable to that judgment was liable to be set aside.
Held : The basis of the provision under Section 152 of the Code is founded on the maxim actus curiae neminem gravabit i.e. an act of Court shall prejudice no man. The maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law", said Cresswell J. in Freeman v. Tranah (12 C.B. 406). An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa (AIR 1966 SC 1047) it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments or merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case. Above being the position, the first Appellate Court was not justified in exercising power under Section 152 of the Code and the High Court was equally in error by putting its seal of approval thereon. Therefore, the appeal relatable to the judgment in Second Appeal No. 3618/1987 is dismissed while the one relating to Second Appeal No. 1472/1988 is allowed. There shall be no order as to costs. (Paras 12 and 13)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

Both the appeals are taken up together for disposal.

2. The State of Punjab questions correctness of judgment rendered by learned Single Judge of Punjab and Haryana High Court in Second Appeals Nos. 3618/1987 and 1472/1988 affirming the judgment and decree passed in appeal by the learned Additional District Judge, Patiala. The First Appellate court had reversed the judgment and decree passed by learned Senior Subordinate Judge, Patiala dismissing the suit filed by the respondent-employee.

3. Factual background giving rise to these appeals in a nutshell is as follows :

Respondent as plaintiff filed a suit in the Court of Senior Subordinate Judge, Patiala for a declaration that the order dated 13.3.1977 passed by the State through the Collector, Patiala removing him from service is unconstitutional, illegal, null and void, mala fide, ineffective, inoperative, improper and discriminatory. A further prayer was for a declaration that he was entitled to have his pay fixed in the appropriate scale by counting the period of his alleged forced absence. Averments in the plaint were to the following effect : He was employed as a Senior Compositor in the Government Press, Printing and Stationary Department, Patiala. He was appointed in 1970 and was removed from service by order dated 13.3.1977. He made several representations to the Government and by order dated 14.2.1979 the Government passed an order for appointing him as a Junior Compositor and consequentially the Additional Controller, Patiala issued fresh order of appointment appointing him as a Junior Compositor on temporary basis as a new appointee. Three issues were framed which read as follows :

"1. Whether the plaintiff is entitled to the declaration prayed for?

2. Whether suit is not maintainable?

3. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?"

4. After considering the evidence on record the suit was dismissed. An appeal was preferred before the Additional District Judge who held that the dismissal was bad. Though it was the stand of the State that the work of the respondent-employee was not up to the required mark, the first Appellate Court held that the review of performance should have been done every year, and since it was done after several years, the order of termination was bad and when the plaintiff was taken back in service it could not have been ordered that he will be taken back as fresh recruit. The order being whimsical in nature, no reason was forthcoming as to why his representations were not rejected altogether and why he was allowed to be taken back as fresh recruit. While granting this relief the following order was also passed :

"It is made clear that it is up to the department to grant him or not to grant him increments for the past service rendered by him. It will be again for the department to decide whether he is or he is not fit to be promoted after taking his past service into account".

5. The respondent-employee filed an application purported to be made under Section 152 of the Code of Criminal Procedure, 1973 (in short the Code ) claiming that the afore-quoted directions were not in order and deserve to be deleted. By order dated 3.2.1988 learned Additional District Judge, Patiala deleted the afore-quoted portion on the ground that if the said portion remains, it would have the effect of neutralizing the relief granted to the plaintiff-appellant before it. In the aforesaid manner, the judgment and decree passed on 4.6.1987 in appeal was reviewed. The State filed Second Appeals Nos. 3618/87 and 1472/1988 under Section 100 of the Code before the High Court which by the impugned judgment dismissed the same. It is relevant to note that first appeal related to original judgment of the first appellate Court while second one related to the order dated 3.2.1988 passed under Section 152 of the Code modifying the judgment.

6. The High Court

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2003 Supreme(SC) 1055

IMPORTANT POINTOmission sought to be corrected in a judgment, decree order which goes to merits of the case is beyond the scope of Section 152 CPC.

Cases Referred (3)

IMPORTANT POINT
Omission sought to be corrected in a judgment, decree order which goes to merits of the case is beyond the scope of Section 152 CPC.