The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 12:41:55 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 127 OF 2024 (An application under Article 227 of the Constitution of India) ***** Bijan Kumar Panda …… Petitioner -Versus- Santilata Panda and another .…… Opp. Parties Advocates appeared: For Petitioner : Mr. Amit Prasad Bose, Advocate For Opp. Parties : Mr. Mohd. A. Alam, Advocate CORAM : MR. JUSTICE K.R. MOHAPATRA ------------------------------------------------ Heard and disposed of on 22.08.2024 ---------------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. The Petitioner in this CMP seeks to assail the order dated 21st October, 2021 (Annexure-1) passed in C.S. No.45 of 2010, whereby learned Civil Judge (Senior Division), Bhubaneswar exercising power under Section 152 CPC, corrected the judgment and final decree.
Legal Reasoning
3. Mr. Bose, learned counsel for the Petitioner submits that C.S. No.45 of 2010 was filed by Plaintiff-Opposite Party No.1 for partition. During pendency of the suit, parties thereto entered into compromise and a petition to that effect along with terms of CMP No. 127 OF 2024 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 12:41:55 // 2 //
Decision
settlement was filed and the suit was disposed of vide judgment dated 29th November, 2018 (Annexure-3) on the terms and conditions of said compromise. Terms and conditions of the compromise petition (Ext. A) also formed part of the judgment and preliminary decree. Pursuant to the preliminary decree passed on compromise, final decree was also drawn up. When the matter stood thus, the Plaintiff-Opposite Party No.1 filed an application under Section 152 CPC on 12th August, 2020. Learned trial Court without issuing any notice to the Defendants including the Petitioner, who was Defendant No.2 in the suit, corrected the judgment and final decree, vide order dated 21st October, 2021 under Annexure-1. Assailing the same, this CMP has been filed. 4. It is further submitted by Mr. Bose, learned counsel for the Petitioner that learned trial Court, vide judgment dated 29th November, 2018, passed the following order: “The suit and counter claim be and the same are hereby decreed finally on contest under the circumstances without any cost. The deed of agreement i.e. Ext-A be part of the decree.” 4.1. In terms of the compromise, both the suit and the counter claim filed by the Defendant No.2-Petitioner were disposed of. But, by exercising inherent power under Section 152 CPC, learned trial Court deleted the word ‘and counter claim’ and the word ‘are’ was substituted by ‘is’. The word ‘final’ was inserted in the last line of the order in between the words ‘the’ and ‘decree’. CMP No. 127 OF 2024 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 12:41:55 // 3 // For better appreciation, the corrected portion of the judgment is quoted hereunder:- “The suit be and the same is hereby decreed finally on contest under the circumstances without any cost. The deed of agreement i.e. Ext-A be part of the final decree.” 4.2 In view of the above, entire tenor of the judgment and final decree was changed. Since the Defendant No.2-Petitioner was not noticed, he had no occasion to know about the same. Taking advantage of the correction made, the Opposite Party No.1 had filed C.S. No.1705 of 2022 claiming partition of the properties, more fully described in the schedule of the counter- claim. When the order impugned herein along with corrected judgment and final decree was exhibited by the Opposite Party No.1 in the said suit, the Petitioner came to know about the same and has filed this CMP. 4.2 Although Section 152 CPC does not contemplate notice to the parties, but propriety demands that principles of natural justice should have been complied with so that the parties could have been aware of the correction sought to be made and raised their objection to it. It is his submission that the terms and conditions of the compromise petition at Annexure-2 clearly disclose that the dispute between the parties was settled for good. Thus, by virtue of the judgment and decree, learned trial Court disposed of the entire dispute between the parties more fully described in the schedule of the plaint and the counterclaim. Considering the same, the judgment in C.S. No.45 CMP No. 127 OF 2024 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 12:41:55 // 4 // of 2010 under Annexure-3 was passed on 29th November, 2018. But, without notice to the Petitioner in the subsequent petition filed by the Plaintiff/Opposite Party No.1 under Section 152 CPC, correction was made in judgment under Annexure-3, which has seriously prejudiced the Petitioner-Defendant No.2. He also submits that in the meantime, Defendant No.1 has already died. He, thus submits that the impugned order under Annexure-1 being violative of principles of natural justice, is liable to be set aside. 5. Mr. Alam, learned counsel for contesting Opposite Party No.1 submits that Section 152 CPC does not contemplate notice to the parties. It is the practice of the Courts to correct the clerical and accidental errors and omission in the judgment and decree without notice to the parties. Thus, learned trial Court has committed no procedural error in not issuing notice to the Defendants to file their objection to the petition under Section 152 CPC filed by the Plaintiff-Opposite Party No.1. He further submits that the Petitioner is no way prejudiced by the impugned order under Annexure-1. Properties more fully described in the schedule of the counterclaim were not included in the terms and conditions of the compromise. Thus, for all intent and purpose, properties mentioned in the schedule of the plaint were only the subject matter of compromise. Hence, learned trial Court realising its bona fide mistake corrected the error excluding the properties in the counterclaim from the purview of compromise CMP No. 127 OF 2024 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 12:41:55 // 5 // judgment and decree. As such, the impugned order under Annexure-1 warrants no interference. 6. Heard learned counsel for the parties and perused the case record. 7. This Court vide order dated 4th March, 2024 issued notice to Opposite Party No.1 only dispensing with service of notice on Opposite Party No.2, as the Petitioner does not claim any relief against her. Opposite Party No.1 filed the petition under Section 152 CPC (Annexure-6). The Petitioner is aggrieved by the order passed on the petition under Annexure-6. Hence, no notice was required to be issued to Opposite Party No.2. 8. Section 152 CPC reads as under: “152. Amendment of judgments, decrees or orders.— Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.” 9. The Court exercising inherent power under Section 152 CPC may correct any arithmetical or clerical mistake in the judgment, decree or order occurred due to accidental slip or omission. But, the parties to the suit have a right to know about such correction before it takes effect. Although no notice is contemplated under Section 152 CPC, but in order to maintain the judicial decorum and to give an opportunity to the parties to have their say, the Court before exercising inherent power under Section 152 CPC should issue notice to the parties so that they CMP No. 127 OF 2024 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 12:41:55 // 6 // will get an opportunity to have their say in the matter. In that process, the ultimate order to be passed in exercise of power under Section 152 CPC will also be known to the parties to which they are entitled to. 9.1. The spirit underlying compliance of natural justice is not unknown to the adjudicators. Principle of audi alteram partem is in-built in all statutes unless expressly excluded. In the case of Charan Lal Sahu v. Union of India; reported in (1990) 1 SCC 613, Hon’ble Supreme Court discussing different case laws elaborated the requirement of compliance of principles of natural justice. It is held as under; is just, “109. The fact that the provisions of the principles of natural justice have to be complied with, is undisputed. This is well settled by the various decisions of the court. The Indian Constitution mandates that clearly, otherwise the Act and the actions would be violative of Article 14 of the Constitution and would also be destructive of Article 19(1)(g) and negate Article 21 of the Constitution by denying a procedure which fair and reasonable. See in this connection, the observations of this Court in Maneka Gandhi case [(1978) 1 SCC 248 : (1978) 2 SCR 621] and Olga Tellis case [(1985) 3 SCC 545 : 1985 Supp 2 SCR 51, 78-83] . Some of these aspects were noticed in the decision of this Court in Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664 : (1981) 2 SCR 533 : (1981) 51 Com Cas 210]. That was a decision which dealt with the question of taking over of the industries under the Industries (Development and Regulation) Act, 1951. The question that arose was whether it was necessary to observe the rules of natural justice before issuing a notification under Section 18-A(1) of the Act. It was held by the majority of judges that in the facts of that case there had been non-compliance with the implied requirement of the audi alteram partem rule of natural justice at the pre- decisional stage. The order in that case could be struck down as invalid on that score but the court found that in CMP No. 127 OF 2024 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 12:41:55 // 7 // view of the concession that a hearing would be afforded to the company, the case was remitted to the Central Government to give a full, fair and effective hearing. It was held that the phrase ‘natural justice’ is not capable of static and precise definition. It could not be imprisoned in the strait-jacket of a cast-iron formula. Rules of natural justice are not embodied rules. Hence, it was not possible to make an exhaustive catalogue of such rules. This Court reiterated that audi alteram partem is a highly effective rule devised by the courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. The rules of natural justice can operate only in areas not covered by any law validly made. The general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not in terms exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits then such a statute would be construed as excluding the audi alteram partem rule at the pre- decisional stage. If the statute conferring the power is silent with regard to the giving of a pre-decisional hearing the administrative the person affected decision after post-decisional hearing was good.” to (emphasis supplied) 10. It appears that in the instant case, learned trial Court has not made any endeavour either to issue notice to the Defendants either before exercising inherent power under Section 152 CPC or to communicate the order passed on the petition under Section 152 CPC to the parties. In that view of the matter, the impugned order under Annexure-1 suffers from material irregularities and is accordingly set aside being not sustainable. Consequently, corrections in the judgment dated 29th November, 2018 under Annexure-3 pursuant to the impugned order becomes ineffective. CMP No. 127 OF 2024 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 12:41:55 // 8 // 11. Accordingly, the impugned order under Annexure-1 is set aside and the matter is remitted to learned Civil Judge (Senior Division), Bhubaneswar for fresh adjudication of the petition under Section 152 CPC providing opportunity of hearing to the parties to the suit or the persons claiming under them. 12. With the aforesaid observation and direction, the CMP is disposed of. In the circumstances, there shall be no order as to costs. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 22nd August, 2024/Madhusmita CMP No. 127 OF 2024 Page 8 of 8