Gujarat High Court
State Of Gujarat vs Devayatbhai Lakhmanbhai And ... on 19 October, 2022
Bench: A.S. Supehia
C/CRA/584/2022 ORDER DATED: 19/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 584 of 2022
With
R/CIVIL REVISION APPLICATION NO. 585 of 2022
With
R/CIVIL REVISION APPLICATION NO. 586 of 2022
With
R/CIVIL REVISION APPLICATION NO. 587 of 2022
With
R/CIVIL REVISION APPLICATION NO. 588 of 2022
With
R/CIVIL REVISION APPLICATION NO. 589 of 2022
With
R/CIVIL REVISION APPLICATION NO. 590 of 2022
With
R/CIVIL REVISION APPLICATION NO. 591 of 2022
With
R/CIVIL REVISION APPLICATION NO. 592 of 2022
With
R/CIVIL REVISION APPLICATION NO. 593 of 2022
With
R/CIVIL REVISION APPLICATION NO. 594 of 2022
With
R/CIVIL REVISION APPLICATION NO. 595 of 2022
With
R/CIVIL REVISION APPLICATION NO. 596 of 2022
With
R/CIVIL REVISION APPLICATION NO. 597 of 2022
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STATE OF GUJARAT
Versus
DEVAYATBHAI LAKHMANBHAI AND JAGMALBHAI LAKHAMANBHAI
==========================================================
Appearance:
MS ASMITA PATEL, AGP for the Applicant(s) No. 1,2
for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 19/10/2022
COMMON ORAL ORDER
Learned AGP at the outset has submitted that
the present revision applications can be disposed
of in terms of the order dated 08.09.2022 passed
C/CRA/584/2022 ORDER DATED: 19/10/2022
in the group of matters being Criminal Appeal
Nos.479 of 2022 and allied matters.
1. All these revision applications are filed by
the State Authorities and the issues involved in
all these revision applications are common and
interconnected, hence, the same are decided
analogously today by this common oral order.
2. The present revision applications have been
filed assailing the order dated 02.03.2017 passed
by the Principal Senior Civil Judge, Gondal in an
application filed by the claimant under Section
152 of the Code of Civil Procedure, 1908 (for
short, "the CPC"). By the judgment and award
dated 30.06.2016 passed in Land Reference Case
No.108 of 2004 and allied matters, the Court
below has awarded the compensation at the rate of
280 per sq. mtr., for the land acquired for
villages Charan Samdhiyara and Khajuri Gundala,
Taluka Jetpur, District Rajkot, was passed.
3. Aggrieved by the aforesaid judgment and
award, the State Authorities have preferred First
Appeal Nos.399 of 2017 with allied matters before
this Court along with the Civil Applications for
Stay and Delay, wherein vide order dated
C/CRA/584/2022 ORDER DATED: 19/10/2022
10.02.2017, the Division Bench of this Court has
admitted the appeal preferred by the State
Government and further granted stay in Civil
Application No.1248 of 2017. The aforesaid First
Appeal is pending for final hearing. Meanwhile,
the opponents have preferred an application under
Section 152 of the CPC, for correcting the
arithmetic mistake in the judgment and decree on
sq.yard = 0.8361 sq.mtr., and if the same is
converted into sq.mtr, the compensation figure
would work out at Rs.280 x 0.8361 = 234.108. The
State authorities had objected the aforesaid
applications, however the same were allowed by
the impugned order dated 02.03.2017, and
accordingly, while correcting the arithmetic
mistake, the compensation is enhanced to Rs.402/-
per sq.mtr., and the same is subject matter of
challenge before this Court.
4. Learned Assistant Government Pleaders have
submitted that the State Authority is compelled
to file the present Civil Revision Applications,
challenging the impugned order, since the
compensation, which was fixed by the earlier
Court of Rs.280/- per sq.yard, has been enhanced
to Rs.402 per sq.mtr., and since the order is
passed under Section 152 of the CPC, the Civil
C/CRA/584/2022 ORDER DATED: 19/10/2022
Revision Applications are filed, since no other
remedy is available to the State Authorities.
5. This Court vide order dated 08.09.2022 has
already set aside identical orders passed by the
lower Court on 02.03.2017.
6. The only issue, which is required examination
is whether the present civil revision
applications filed by the State authorities would
be maintainable under the provision of Section
115 of the CPC or they have to resort filing of
first appeals under Section 54 of the Land
Acquisition Act, 1984. Section 54 of the Act,
reads as under :-
"[54. Appeals in proceedings before Court. -
Subject to the provisions of the Code of Civil
Procedure, 1908 (5 of 1908), applicable to appeals
from original decrees, and notwithstanding anything
to the contrary in any enactment for the time being
in force, an appeal shall only lie in any
proceedings under this Act to the High Court from
the award, or from any part of the award, of the
Court and from any decree of the High Court passed
on such appeal as aforesaid an appeal shall lie to
4[the Supreme Court] subject to the provisions
contained in section 110 of the Code of Civil
Procedure, 1908, and in Order XLV thereof.]"
7. The Principal Senior Civil Judge, Gondal,
initially, by the judgment and award dated
30.06.2016 passed in reference cases had awarded
the compensation of Rs.280 per sq. mtr. for the
C/CRA/584/2022 ORDER DATED: 19/10/2022
land acquired for villages Charan Samdhiyara and
Khajuri Gundala, Taluka Jetpur, District Rajkot.
8. Being aggrieved by the said judgment and
award, the State authority has preferred First
Appeals No.399 of 2017 and allied matters, under
Section 54 of the Act, which are admitted by this
Court vide order dated 10.02.2017 by staying the
impugned judgment and award passed by the
reference Court. Thereafter, the claimant(s)
filed an application under Section 152 of the CPC
for correcting the mistake with regard to
conversion adopted by the Reference Court in
measurement of units i.e. 1 sq. yard = 0.8361 per
sq. mtr. and after considering such arithmetic
calculation, as canvassed by the claimants,
Principal Senior Civil Judge has altered the
compensation from Rs.280 to Rs.402 per sq.mtr.
and accordingly, the application filed under
Section 152 of the CPC are allowed and the
judgment and decree is altered.
9. The Reference Court has exercised the powers
under Section 152 of the CPC, which reads as
under : -
"Section 152 of Code of Civil Procedure 1908
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."
C/CRA/584/2022 ORDER DATED: 19/10/2022
10. At this stage, it would be apposite to refer
to the observations made by the Supreme Court in
the case of State of Punjab Vs. Darshan Singh,
(2004) 1 S.C.C. 328. The Supreme Court, while
examining the provisions of Section 152 of CPC
and the orders passed therein has held thus : -
"12. Section 152 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, the same becomes final subject to any
further avenues of remedies provided in respect of
the same and the very Court or the tribunal cannot,
on mere change of view, is not entitled to vary the
terms of the judgments, decrees and orders earlier
passed except by means of review, if statutorily
provided specifically therefore and subject to the
conditions or limitations provided therein. The
powers under Section 152 of the Code are neither to
be equated with the power of review nor can be said
to be akin to review or even said to clothe the Court
concerned under the guise of invoking after the
result of the judgment earlier rendered, in its
entirety or any portion or part of it. 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 the merits of the case is beyond the
scope of Section 152 as if it is looking into it for
the first time, for which the proper remedy for the
aggrieved party if at all is to file appeal or
revision before the higher forum or review
application before the very forum, subject to the
limitations in respect of such review. It implies
that the Section cannot be pressed into service to
C/CRA/584/2022 ORDER DATED: 19/10/2022
correct an omission which is intentional, however
erroneous that may be. It has been noticed that the
courts below have been liberally construing and
applying the provisions of Sections 151 and 152 of
Code even after passing of effective orders in the
lis pending before them. No Court can, under the
cover of the aforesaid sections, modify, alter or add
to the terms of its original judgment, decree or
order. Similar view was expressed by this Court
in Dwaraka Das v. State of Madhya Pradesh and Anr.
(1999 (3) SCC 500) and Jayalakshmi Coelho v. Oswald
Joseph Coelho (2001 (4) SCC 181).
13. 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 on 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."
11. A plain reading of the observations made by
the Apex Court would reveal that the powers under
C/CRA/584/2022 ORDER DATED: 19/10/2022
section 152 of the CPC are neither to be equated
with the power of review nor can be said to be
akin to review or even said to clothe the Court
concerned under the guise of invoking such power
after the result of the judgment earlier
rendered, in its entirety or any portion or part
of it. It is further observed that the
corrections contemplated under Section 152 of the
CPC, 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. It
is further asserted by the Apex Court that such
omission, which is sought to be corrected, which
goes to the merits of the case is beyond the
scope of Section 152 of the CPC, as if it is
looking into it for the first time, for which the
proper remedy for the aggrieved party, if at all,
is to file appeal or revision before the higher
forum or review application before the very
forum, subject to the limitations in respect of
such review.
12. In the present case, the State Government has
already preferred appeals against the impugned
judgment and award, which has been admitted and
are pending for final hearing. Section 115 of the
CPC under which the present revision application
are filed reads as under :-
C/CRA/584/2022 ORDER DATED: 19/10/2022
"Section 115 of Code of Civil Procedure 1908
"Revision"
(1) The High Court may call for the record of an case
which has been decided by any Court subordinate to
such High Court and in which no appeal lies thereto,
and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it
by law, or
(b) to have failed to exercise a jurisdiction so
vested, or
(c) to have acted in the exercise of its jurisdiction
illegally or with material irregularity, the High
Court may make such order in the case as it thinks
fit :
Provided that the High Court shall no, under this
section, vary or reverse any order made, or any order
deciding an issue, in the course of a suit or other
proceeding, except where -
(a) the order, if it had been made in favour of the
party applying for revision, would have finally
disposed of the suit or other proceedings, or
(b) the order, if allowed to stand, would occasion a
failure of justice or cause irreparable injury to the
party against whom it was made.
(2) The High Court shall not, under this section,
vary or reverse any decree or order against which an
appeal lies either to the High Court or to any Court
subordinate thereto.
Explanation.-In this section, the expression "any
case which has been decided" includes any order made,
or any order deciding an issue in the course of a
suit or other proceeding."
13. Sub-section (2) of Section 115 of the CPC
clearly stipulates that the High Court shall not,
under this section, vary or reverse any decree or
order, against which an appeal lies either to the
High Court or to any Court subordinate thereto.
14. In this view of the matter, since by the
impugned judgment and award, the Reference Court
has altered the decree by enhancing the
C/CRA/584/2022 ORDER DATED: 19/10/2022
compensation, the only remedy available to the
Sate authority is either to file appeals against
the said order or file appropriate amendment as
permissible under the law in pending appeals,
which are admitted by this Court and are pending
for hearing.
15. Under the circumstances, the present revision
applications are not maintainable and the same
are rejected in terms of the order dated
08.09.2022 passed in Criminal Appeal Nos.429 of
2022 and allied matters. However, it is clarified
that, it will be open for the State authorities
to either file an appropriate appeal or to file
appropriate amendment as permissible under the
law, against the impugned judgment and decree. It
is also clarified that the the time consumed
before this Court, in the present proceedings
shall be adjusted towards the calculation of the
limitation period.
16. Registry to place a copy of this order in
each of the connected matters.
Sd/-
(A. S. SUPEHIA, J)
NVMEWADA
