SANTHAKUMARI V K Vs. SARI K G

JUDGEMENT

(1.) SECOND respondent appears through counsel. Others are served but, there is no response.

(2.) THIS revision arises from an order passed by the learned Sub Judge, Ernakulam on March 31, 2010 on I.A.No.7523 of 2009 in O.S.No.247 of 2008. That is a suit for partition filed by the first respondent against petitioner and others. In the preliminary judgment and decree, there is a direction to the petitioner to pay Rs. .20,000/- to the second respondent. The amount fixed by the learned Sub Judge, according to the petitioner is the result of an arithmetical mistake or an error arising from an accidental slip which is required to be corrected. Petitioner filed I.A.No.7523 of 2009 under Secs.151 and 152 of the Code of Civil Procedure (for short, "the Code") to correct the judgment and decree to the effect that liability of petitioner to the second respondent is only 1/3rd of Rs. .20,000/-. That application was dismissed by the learned Sub Judge for the reason that the application is not supported by an affidavit of the party and there is no clerical or arithmetical mistake or omission in the judgment to be corrected invoking Secs.151 or 152 of the Code. The said order is under challenge.

(3.) IT would appear that the above aspect of the matter was not considered by the learned Sub Judge while pronouncing judgment in the case. If it is an omission due to an accidental slip, certainly it ought to be corrected. If it is a mistake committed by the Court then also it has to be corrected by it. Parties cannot be asked to spent huge amount by way of Court fee and file an appeal on the principle that a mistake committed by the Court shall not prejudice a party. But, it is seen that the application was not in the proper form in that it was not supported by the affidavit of petitioner.Instead, counsel for petitioner is seen to have filed the affidavit. That is one of the reason for learned Sub Judge rejecting the application. I find some force in that. But, I am inclined to give petitioner an opportunity to cure the defect. Resultantly this civil revision is allowed by way of remand. The order dated 31.03.2010 on I.A.No.7523 of 2011 (O.S.No.247 of 2008 of the Court of learned Sub Judge, Ernakulm) is set aside and that application is remitted to the learned Sub Judge for fresh decision after giving petitioner opportunity to cure the defect by filing a proper affidavit. Learned Sub Judge shall after hearing both sides pass appropriate orders having regard to the facts and circumstances of the case.