MUNICIPAL COMMITTEE, NABHA Vs. PADAM KUMAR

JUDGEMENT

(1.) Padam Kumar plaintiff-respondent had filed this suit for the grant of a decree declaring him to be entitled to promotion in his grade as a senior employee of the defendant-petitioner and as consequential relief for "a decree appointing the plaintiff" on one of the posts mentioned in the plaint. On March 11, 1970, the trial Court passed a decree for declaration, but did not grant the consequential relief appointing the plaintiff to any of the posts listed in the plaint. The declaratory decree provided that the plaintiff-respondent was entitled to promotion in his grade as a senior employee of the defendant-petitioner to the post of either Inspector or Sub-Inspector Octroi or Sanitary Inspector or Head Clerk or Cashier, or Accountant or Meter Clerk or Tahbzari Clerk or Rent Collector or House Tax Inspector. An appeal preferred by the petitioner-committee against the declaratory decree granted by the trial Court was rejected by the appellate Court on the ground that it was not supported by a resolution of the Municipal Committee. No appellate decree was, therefore, granted. After the disposal of the appeal the plaintiff-respondent made an application to the trial Court under Sections 151 and 152 of the Civil Procedure Code for amendment of the judgment and decree, dated March 11, 1970, so as to add thereto the consequential relief claimed by the plaintiff. The objection taken before the trial Court on behalf of the petitioner committee regarding the want of jurisdiction in the trial Court to give relief to the plaintiff-respondent on account of the decision of the trial Court having merged into the decree of the lower appellate Court was rightly repelled by the trial Court as the appellate Court had not passed any decree in the appeal. After repelling that objection the trial Court proceeded to allow the application and directed that the following words be added to the decree originally granted in the case :-

(2.) Mr. M.P. Maleri, learned counsel for the plaintiff-respondent has tried to support the order of the trial Court on the authority of the judgment of their Lordships of the Supreme Court in Samarendra Nath Sinha and another v. Krishan Kumar Nag, 1967 AIR(SC) 1440. He has submitted that the failure to grant the consequential relief to the plaintiff by the trial Court at thre initial stage was due to some accidental slip, and, therefore, the Court below had the jurisdiction to amend its judgment and decree. No such finding has been given by the trial Court. The condition precedent for exercise of jurisdiction under Section 152 of the Civil Procedure Code is that the necessity for making the correction prayed for in the judgment or decree of the trial Court must have arisen from some accidental slip or clerical error. Concededly the non-grant of a part of the relief claimed by the plaintiff cannot be due to a clerical error or arithmetical mistake in the original judgment and decree. The only question is whether the non-grant of the relief was an error, and if so, whether it arose from any accidental slip or omission. Without recording a finding on both those points, the trial Court had no jurisdiction to allow the application for amendment of its original judgment and decree. As already stated no such finding has been recorded by the Court below. The trial Court appears to have thought that merely because its decree had not merged with any decree passed by the appellate Court, the plaintiff-respondent was entitled to have the application granted. This is a wholly erroneous approach to an application under Section 152 of the Code. From the facts stated above it is obvious that the non-grant of consequential relief could not be due to an accidental slip or omission. Even otherwise the relief granted by a Court is normally confined to the declaration of the rights of a plaintiff and no appointment order can be issued by a Subordinate Judge. The follow up action on the declaratory decree must be left to the Government or other departmental authority against which the declaratory decree is granted. In this view of the matter I am inclined to think that in fact there was no error at all in the original judgment of the trial Court, and the question of its being due to an accidental slip or omission could not arise. The plaintiff had claimed that he is entitled to be appointed to one of the various posts mentioned in the plaint. A declaration to the effect that plaintiff was entitled to such a relief having been granted, it was not for the Court to decide as to which, if any, of those posts the plaintiff should get. Even if such a relief can be granted by a Subordinate Judge it would depend on various factors, and unless parties have had an opportunity to lead evidence to show that even if the plaintiff was entitled to be considered, he should actually be appointed or not in the circumstances that may exist on the date when the decree is passed, no decree of this type can be granted by a Court.

(3.) For all these reasons I allow this petition, set aside the order of the learned trial Judge, and dismiss the application of the plaintiff-respondent for the amendment of the decree. Nothing stated in this order may be construed to suggest that the effect of the original declaratory decree granted by the trial Court has in any manner been affected by this order. The parties are left to bear their own costs in this Court.