Gujarat High Court
State Of Gujarat vs Nathiben Shambhu Paghdal on 14 September, 2022
Bench: A.S. Supehia
C/CRA/400/2022 ORDER DATED: 14/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 400 of 2022
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R/CIVIL REVISION APPLICATION NO. 401 of 2022
With
R/CIVIL REVISION APPLICATION NO. 402 of 2022
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R/CIVIL REVISION APPLICATION NO. 403 of 2022
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R/CIVIL REVISION APPLICATION NO. 404 of 2022
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R/CIVIL REVISION APPLICATION NO. 405 of 2022
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R/CIVIL REVISION APPLICATION NO. 406 of 2022
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R/CIVIL REVISION APPLICATION NO. 407 of 2022
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R/CIVIL REVISION APPLICATION NO. 408 of 2022
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R/CIVIL REVISION APPLICATION NO. 409 of 2022
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R/CIVIL REVISION APPLICATION NO. 410 of 2022
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R/CIVIL REVISION APPLICATION NO. 411 of 2022
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R/CIVIL REVISION APPLICATION NO. 412 of 2022
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R/CIVIL REVISION APPLICATION NO. 413 of 2022
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R/CIVIL REVISION APPLICATION NO. 414 of 2022
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R/CIVIL REVISION APPLICATION NO. 415 of 2022
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R/CIVIL REVISION APPLICATION NO. 416 of 2022
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R/CIVIL REVISION APPLICATION NO. 417 of 2022
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R/CIVIL REVISION APPLICATION NO. 418 of 2022
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R/CIVIL REVISION APPLICATION NO. 419 of 2022
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R/CIVIL REVISION APPLICATION NO. 420 of 2022
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R/CIVIL REVISION APPLICATION NO. 421 of 2022
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R/CIVIL REVISION APPLICATION NO. 422 of 2022
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C/CRA/400/2022 ORDER DATED: 14/09/2022
With
R/CIVIL REVISION APPLICATION NO. 423 of 2022
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R/CIVIL REVISION APPLICATION NO. 424 of 2022
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R/CIVIL REVISION APPLICATION NO. 425 of 2022
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R/CIVIL REVISION APPLICATION NO. 426 of 2022
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R/CIVIL REVISION APPLICATION NO. 427 of 2022
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STATE OF GUJARAT
Versus
NATHIBEN SHAMBHU PAGHDAL
==========================================================
Appearance:
MS ASMITA PATEL, AGP for the Applicant(s) No. 1,2
RULE SERVED for the Opponent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 14/09/2022
COMMON ORAL ORDER
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.10 of 2006 and allied matters, the Court below
has awarded the compensation at the rate of 280
C/CRA/400/2022 ORDER DATED: 14/09/2022
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 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 Appeals are 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 the ground that the Court
has considered 1 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 Pleader has
submitted that the State Authority is compelled
C/CRA/400/2022 ORDER DATED: 14/09/2022
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
Revision Applications are filed, since no other
remedy is available to the State Authorities.
5. Per contra, learned advocate Mr.Satta
appearing for the claimant(s) has submitted that
the aforesaid order does not require any
interference. While placing reliance on the
judgment of the Apex Court in the case of State
of Punjab versus Darshan Singh, [(2004) 1 SCC
328], learned advocate has submitted that when
there is an effective alteration, the only remedy
available would be against the aforesaid order is
of filing First Appeal.
6. I have heard learned advocates appearing for
the respective parties.
7. The facts, as narrated hereinabove, are not in
dispute. 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
C/CRA/400/2022 ORDER DATED: 14/09/2022
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.]"
8. 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
land acquired for villages Charan Samdhiyara and
Khajuri Gundala, Taluka Jetpur, District Rajkot.
9. 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
C/CRA/400/2022 ORDER DATED: 14/09/2022
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.
10. 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."
11. At this stage, it would be apposite to refer
to the observations made by the Apex Court in the
case of Darshan Singh (supra). 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
C/CRA/400/2022 ORDER DATED: 14/09/2022
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
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
C/CRA/400/2022 ORDER DATED: 14/09/2022
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."
12. A plain reading of the observations made by
the Apex Court would reveal that the powers under
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
C/CRA/400/2022 ORDER DATED: 14/09/2022
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.
13. 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 :-
"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
C/CRA/400/2022 ORDER DATED: 14/09/2022
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."
13.1 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
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
C/CRA/400/2022 ORDER DATED: 14/09/2022
are rejected. 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
