SURAWEERA
VS
BANDUWATHE

WIJAYARATNE. J (PICA)
SRISKANOARAJAH. J
CA43912003
DC GALLE 10176/L

Civil Procedure Code - Sections 189, 839 - Awarding more damages than that is claimed in the absence of prayer for general relief? Permissibility - Miscarriage of justice-Exceptional circumstances - Power of court to correct accidental slips?

The defendant - petitioner sought to revise the judgment/decree declaring that the plaintiff is entitled to inter alia recover damages which the judgment/decree stipulated as Rs. 500/- per month. At the enforcement of the decree the defendant - petitioner sought to amend the judgment/decree to read the quantum as Rs. 5001- per annum as prayed for in the plaintiffs amended plaint. The District Court dismissed the application. The defendant- appellant moved In Revision.

Held:

 

(1) Examination of the original plaint as well as the amended plaint clearly indicates that the estimation of damages was at "Rs. 500/ per annum" and not per month. The trial Judge who based his estimation of damages solely on the averments of the plaint could not have awarded Rs. 500/- per mensem, without an independent assessment on his part. It is clear that mention of the phrase "per mensem" is occasioned by an accidental slip and it is an error which ought to be rectified. Court has ample power under Section 189 read with Section 839 to correct the errors in question as it was an accidental slip or omission.

(2) A Court cannot award more damages than what is claimed in the absence of prayer for general relief.

Per Wijayaratne. J (P/CA)

"When the error on the face of the record has resulted in miscarriage of justice so blatant, the exercise of revisionary jurisdiction of this Court is warranted, however delayed the application thereto Is made:"

APPLICATION In revision from an order of the District Court of Galle.

Cases referred to :

(1) D. C. Mannar- 48 Morg. Digest 140
(2) Sumanadeva vs. Sediris 1990 1 Sri LR 27
(3) Mohomed Iqbal vs. Mohomed Sally 1995 2 Sri LR 310

Sunil Cooray for petitioner.

Peter Jayasekera with Kosala Senaratne for respondent.

 

cur. adv. vult.

February 21, 2007
Wijayaratne. J

This is an application by the Petitioner to revise the judgment and decreeentered against him on 26.2.1997 declaring the plaintiff entitled to the subject land, ejectment of the defendant and for recovery of damages which the Judgment and decree stipulated as Rs . 500/ - per month. However  the judgment categorically states that for the reason given therein the judgment is entered in favour of the plaintiff on the strength of the evidence on record and issue No. 7 touching on the damages is answered to the effect "damages in a sum of Rs . 500/- per month is caused to plaintiff . "

The defendant the present petitioner did not appeal from the judgment. But when the decree was to be enforced the defendant- petitioner objected to the same and made application t o District Court on 18.01 . 2002 to amend the judgment and decree to read the quantum of damages as Rs . 500/ - per annum as prayed for in the plaint as well as amended plaint. After inquiry the Court dismissed the application to amend the judgment and decree by order dated 06.03 . 2002 . The defendant- petitioner by his application dated 17.3.2003 seeks to revise the judgment dated 26.2 . 1997  and the order refusing to amend dated 06.03.2002 on ground inter alia that they are contrary to law, the learned district Judge has misdirected himself both on law and fact and it is unreasonable and unjust to grant relief in excess of what is prayed by the plaintiff.

The plaintiff - respondent objects to this application on several grounds as the defendant- petitioner did not exercise his right of appeal , the application is belated and no explanation is offered on causes of delay and no exceptional ground is urged, and sought dismissal of the application.

When the matter was