MYTHEEN KUNJU ABDUL HAMEED Vs. STATE BANK OF TRAVANCORE
LAWS(KER)-1968-12-22
HIGH COURT OF KERALA
Decided on December 06,1968

Mytheen Kunju Abdul Hameed Appellant
VERSUS
STATE BANK OF TRAVANCORE Respondents

JUDGEMENT

- (1.) To err is human, and, since judges are also human, they are also liable to err and so, the procedural laws of this country have provided for remedying judicial errors by others above, through appeals and revisions, and by themselves through processes of review and rectification.
(2.) The present revision petition seeks to reverse the order of the Munsiff, Quilon, amending the judgment and decree and awarding future interest in favour of the plaintiff, on the score that there was an omission in this regard in the original judgment. The original judgment awarded interest till the date of the decree but the amended judgment awarded it till date of realisation. The defendant, who is the revision petitioner before me, relied upon S.34 clause (2) of the Civil procedure Code and contended that where a decree was silent with respect to the payment of future interest, the Court should be deemed to have refused such interest and there was no scope for inferring an omission or slip or invoking S.152 of the Civil Procedure Code in the face of the express provision referred to above. He further contends that in any view, S.152, C.P.C., would not apply to a case where the Court had expressly directed in the original judgment that interest shall be payable till the date of the decree. Neither argument appeals to me. S.34(2), it is true, has provided for a legal inference of refusal of interest where the decree is silent about future interest. That is a provision for construction of the decree and does not preclude the possibility of accidental slips and omissions in decrees and judgments even regarding payment of interest and cannot, therefore, interdict the application of S.152 in such a situation.
(3.) However, the question arises whether the Court can invoke its powers under S.152, C. P. C., to amend a decree where a positive direction is contained in the judgment that interest shall be payable till the date of the decree. If it was a real omission or slip, why should not the Court be able, under its inherent powers to set right the mistake and do justice between the parties that way After thought enlightenment, of course, cannot be fobbed off as a slip, because the "slip rule" does not apply when the judgment correctly represents what the Court in fact, albeit wrongly, intended. But, if, in the course of the judgment, an inadvertent mistake - thanks carelessness, forgetfulness or absent mindness creeps in, it is amenable to correction under the "slip rule". A slip of the tongue or a slip of the brain, be it a positive slip in the sense of stating something by mistake for something else or a negative slip in the sense of failing to mention something which you intended to state, will come within the wider sweep of the "slip rule". If what you intended does not accord with what you have done and this discrepancy is blamable on inattention, casual indifference or inadvertent mistake, one may say that a slip has caused it and in all these matters we must have the broader background of doing justice, clearing away technicalities; for, although a Court, cannot conduct its business without a code of procedure, the relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress and the Court ought not to be so far bound and tied by rules as to feel helpless when injustice has been caused by an unwitting act of its own. It is clear that there is a distinction between O.47 and S.152, C.P.C. In the former, the ground for reopening is substantial, such as, discovery of important, new material and the scope for altering the earlier judgment is also greater. Of course, there can be no review of an order which was right when made on the ground of the happening of some subsequent event and therefore the new and important matter discovered must be something which existed on the date of the order. Under S.152 also, subsequent events cannot justify a rectification of the decree or judgment. Moreover, the power under S.152 is much narrower and is confined to errors creeping in accidentally, be it by slip of the hand or of the head. Even so, where a direction as to interest is inadvertently omitted, I do not see any reason why the judgment and decree should not be amended by adding the intended but omitted direction for payment of future interest. The only test is as indicated by me earlier whether there is an element of inadvertent error or accidental mistake. To an extent, I am fortified in this conclusion by the ruling reported in State of Madhya Pradesh v. Man Mohan Swaroop (1966 MP 270). Of course, the Andhra Pradesh High Court has gone much farther although I am not yet inclined to go to that extent. Mr. Justice Gopalakrishnan Nair has observed in the decision in Konapalle Narayana Reddy v. Kalavappalle Venkataramanappa (AIR 1966 AP 329) as follows. "A plain and inexcusable order in a decree must, unless the law clearly forbids it, be corrected by the court. That is one of the fundamental duties of a court and one of the main reasons why the courts are clothed with inherent powers. Of course, a court will not try to correct an error in a decree however egregious it be, if the law prevents it from doing so. But the error of passing a decree against the Government whom the plaintiff had not asked for any relief whatsoever against the Government can well be brought within the purview of S.152 and 153 C.P.C." In the present case, the plaintiff asked for interest, past and future in the plaint. The defendant, in his written statement, did not controvert the right to future interest. The decree, in effect, was in terms of the claim. Naturally, the obvious conclusion is that the Judge intended to award interest past and future, but accidentally omitted to include future interest in the judgment. If the error is self evident and obviously strikes one as a slip, it certainly comes within the scope of S.152 C.P.C. I am clear that in this case, without straining the language overmuch, the order passed by the Court can be justified.;


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