AMIR UDDIN AND OTHERS Vs. IBRAHIM KHAN

JUDGEMENT

(1.) These are two connected appeals arising out of the judgment and decree passed by Sri R.C. Saxena, Temporary Civil Judge, Hamirpur. The facts giving rise to these appeals are as follows:

(2.) Subsequently, an application was made for the amendment of the judgment and decree because it was an incidental slip that instead of plot No. 781/1, the learned Munsif wrote in the operative portion of his judgment that the suit was decreed for plots Nos. 762 and 784/1. This accidental mistake was corrected on the application of the plaintiff -appellant. It was then that an objection was made in the lower appellate court that the appeal was filed against a decree which has ceased to exist and, therefore, the appeal was incompetent. The learned lower appellate court held that the appeal and the cross -objection were incompetent and, therefore, dismissed them. Being dissatisfied, both the plaintiff and the defendant have filed separate appeals. In support of his view, the lower appellate court relied, on a decision of this court Kanhaiya Lal v/s. Baldeo (ILR 28 Alld. 240). In this case, a, review application was made and instead of the original decree, a new decree was passed and, therefore, it was held that the appeal which was filed against the original decree was incompetent as the original decree had ceased to exist. In the instant case, the matter is altogether different. What has happened in the present case is that due to just a slip of pen or an accidental mistake, in the operative portion of the judgment, the learned Munsif mentioned that the suit was being decreed regarding plots Nos. 762 and 784/1 although in the judgment he had, just above the operative portion, while deciding issue No. 1, held that the plaintiff was entitled to relief regarding plots No. 762 and 781/1. A reading of the judgment also goes to show that the learned Munsif found that the plaintiff was entitled to relief regarding plots Nos. 762 and 781/1. There was no doubt that it was just an accidental slip of pen that although plot No. 762 was correctly mentioned in the operative order but instead of plot No. 781/1, plot No. 784/1 was mentioned. This leads to a further question as to whether due to this accidental slip of pen by the court, should the plaintiff be made to suffer. The only reply to this question would be that due to the mistake of the court, a party should not be penalised or made to suffer. This was such a mistake which the court should have correct it without an application being made. It was certainly an error apparent on the face of the record and, therefore, in his right of review, the trial court was perfectly justified to correct it. Under these circumstances, the amended decree would not be a new decree substituting the original decree and, therefore, it would not be correct to say that by this amendment, the decree was amended and something new was brought into or that the original decree ceased to exist. I am, therefore, of the opinion that the reported case of Kanhaiya Lal (supra) does not apply to the facts of the present case. The lower appellate court also relied on a decision of the Calcutta High Court Aditya Kumar v/s. Abinash Chandra ( : AIR 1931 Calcutta 323). The view taken by the Calcutta High Court was that the original decree ceased to exist and, therefore, the appeal against that decree was incompetent. In the Calcutta case, the decree originally passed had altogether been substituted by a new decree and, therefore, the Calcutta case also was not applicable to the facts of the present case. It would cause real hardship to the plaintiff -appellant if such a narrow interpretation is put to the construction of the decree and the plaintiff would be denied of his right without any fault of his. I don't think that in such a position in which the plaintiff -appellant had been put, these appeals should be dismissed on the ground that the amended decree is a new decree substituting the original decree. This view of mine is supported by a decision of the Madras High Court in Pakhiri Mohammad Rowther v/s. L. Swaminatha Mudaliar ( : AIR 1938 Mudras 573). The facts of this case is rather similar to the facts of the present case. In this Madras case, the appellate judge committed an obvious mistake by dismissing the suit in toto which was against the finding recorded by the Judge and, therefore, it was held that such an amendment which merely amounted to correction of an error apparent on the face of the record does not bring into existence a new decree. I am, therefore, of the opinion that both the cross -objection and the appeal were wrongly dismissed by the appellate court. As the appellate court has not given any decision on merit, therefore, the only proper course is to remand the case for hearing the appeal & the cross -objection by the lower appellate court according to law after re -registering the same in the register of appeals. The parties shall bear their respective costs of these two appeals.