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1999 Supreme(MP) 123
1999 (2) JLJ 83
(SUPREME COURT)
V.N. Khare and R.P. Sethi, JJ.
Dwarka Das v. State of M.P. and another
Civil Appeal No. 1209 of 1992; against judgment of M.P. High Court passed in
First Appeal No. 86 of 1973; Decided on 10.2.1999.
S.K. Ghambhir for appellant;
Ms. Kamakshi S. Mehlwal and S.K. Agnihotri for respondents.
Headnote:(1) Civil P.C., 1908 -- Ss. 152 and 151-- order, judgment or decree passed -- Court becomes functus officio -- cannot vary terms for judgment -- only arithmetical and clerical mistake can be removed -- pendente lite interest not granted despite of demand -- will be deemed to have been rejected -- cannot thereafter be granted invoking powers under. 1969 MPLJ 716 overruled. AIR 1957 MB 50 and AIR 1937 Oudh 191 approved. AIR 1983 Cal. 381 distinguished. [Paras 6 to 8]
(2) Contract Act, 1872 -- S. 73 -- work contract -- rescinded illegally -- erring party is liable to pay damages -- 10 to 15% of contract amount can be assessed as damages for the loss suffered. (1984)4 SCC 59 and (1977)3 SCC 590 relied on. Judgment of High Court reversed. [Para 9]
¼1½ flfoy izfØ;k lafgrk] 1908 && /kkjk 152 rFkk 151 && vkns‘k] fu.kZ; vFkok fMØh ikfjr && U;k;ky; indk;Z fuo`Ùk gks tkrk gS && fu.kZ; ds fuca/ku QsjQkfjr ugha dj ldrk && dsoy vad xf.krh; vkSj fyfidh; v‘kqf) gVkbZ tk ldrh gS && okndkyhu C;kt ek¡xs tkus ij Hkh iznku ugha fd;k x;k && ukeatwj fd;k x;k le>k tk,xk && rRi‘pkr~] bu mica/kksa dk vkJ; ys dj iznku ugha fd;k tk ldrkA 1969 ,e ih ,y ts 716 myVk x;kA , vkb vkj 1957 e-Hkk- 50 rFkk , vkb vkj 1937 vo/k 191 vuqeksfnrA , vkb vkj 1983 dydÙkk 381 izHksfnrA ¿ iSjk 6 ls 8
¼2½ lafonk vf/kfu;e] 1872 && /kkjk 73 && dk;Z lafonk && voS/k :i ls eqdjuk && xyrh djus okyk i{kdkj uqdlkuh ds lank; dk nk;h gS && Hkksxh xbZ gkfu ds fy, lafonk dh jde dk 10 ls 15 izfr‘kr uqdlkuh ds :i esa fu/kkZfjr fd;k tk ldrk gSA ¼1984½4 ,l lh lh 59 rFkk ¼1977½3 ,l lh lh 590 voyafcrA mPp U;k;ky; dk fu.kZ; myVk x;kA ¿ iSjk 9
Sethi, J. – 1. 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 26.12.1960. The entire work was required to be completed within 29 months with further condition that 1/4th of the work was to be completed within 5 months, half the work to be completed within 10 months and 3/4th work was to be completed within 15 months. The work order was issued to the appellant on 26.12.1960 who started construction on 28.12.1960. The 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 19.6.1961 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 CPC 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 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 respondent-State liable to pay only a sum of Rs. 4783.33 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 the High Court was not justified• in setting aside the order of the trial Court passed on 30.11.1973 by which his client was granted pendente lite interest. It is submitted that 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 v. MPSRTC, 1969 MPLJ 716 = 1969 ACJ 274, Firozshaw v. State, AIR 1957 MB 50, Maharaj Puttu Lal v. Sripai Singh, AIR 1937 Oudh 191 = ILR 12 Luck 759, W.B. Financial Corpn. v. Bertram Scott (I) Ltd., AIR 1983 Cat 381.
6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of 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, the Court or the tribunal becomes functus offico and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions 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
