JAYETELEKE J.—Hinnihamy v. Cardie.
194SPresent : Jayetileke and Windbam jj.
HINNIHAMY et al., Appellants, and CAROL1S, Respondent.
S. C. 151—D. C. GaUe, 2,257.
Civil Procedure Code—Amendment of decree—Settlement between parties—Consentorder—Mistake made by Counsel in stating terms of settlement—Power ofCourt to amend—Section ISO.
A Court has power, under section 189 of the Civil Procedure Code, to correctan error in an order made of consent between the parties which has been dueto a slip on the part of Counsel in stating the terms of settlement to Court.
A. PPEAL from a judgment of the District Judge, Galle.
V. Ranawake, for the defendants, appellants.
H. IF. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
April 5, 194S. Jayetillake J.—
The plaintiff instituted this action against the defendants for adeclaration of title to :—
an undivided half share of Hettigoda Mulana Cumbura,
an undivided half share of Hettigoda Mulanawatte,
an undivided 1/12 share of Hettigoda Mulana.
He alleged that the 2nd defendant became entitled to the saidshares on the death of her husband and that he purchased the samefrom her in 1926. He alleged further that the 2nd defendant andher son the 1st defendant were in forcible possession of the said shares.
The defendants filed a joint answer in which they alleged that oneAndiris was the original owner of the entirety of Hettigoda Mulana,eight kurunies of Hettigodawattaaddera Kebella and 10 kurunies ofHettigodamulana Kumbura, and that he devised the said lands inequal shares to them by will. They alleged further that the plaintiff,alleging a division of the said lands, wrongfully claimed the entiretyof the high lands. The 2nd defendant disclaimed title to any of thelands.
It seems to be fairly clear from the pleadings that the defendantsdid not dispute the plaintiff’s title to the shares claimd by him andthat the only question for the decision of the Court was whetherthe defendants wrongfully prevented the plaintiff from possessingthe shares to which he was entitled.
The case came up for trial on August 28, 1946. Mr. Corea appearedfor the plaintiff, and Advocate Panditagunawardene, instructed byMr. Wikramanayake, appeared for the defendants. The ease wassettled and the following terms of settlement were recorded by theCourt:—. .
“ Of consent, plaintiff to be entitled to half share of premisesdescribed in schedule to plaint with damages fixed at Rs. 100.00.
23 – N.L.R. Vo! – xllx
JA7ETILECG J.—Hinnih^tmy t>. Oarolie.
Writ for damages not to issue for 3 months from today. Each partyto bear his own costs. Enter decree accordingly. ”
On September 8, 1946, Mr. Corea moved that the consent orderbe amended by deleting the words “ half share ” on the ground thata mistake had been made by defendants’ Counsel in stating the termsof settlement that had been arranged by the parties. This mattercame up for inquiry on October 30, 1946. At the inquiry Counselfor the defendants took the preliminary objection that the Court hadno jurisdiction to review the consent order entered on August 28, 1946.The learned District Judge overruled the objection and pro-ceeded to hear evidence. Advocate Panditagunawardene, whoappeared for the defendants at the trial, was called by the plaintiff,and he stated that the settlement was that the plaintiff should bedeclared entitled to the share described in the schedule to the plaint,and that what he meant by “ a half share ” in stating the terms ofsettlement to Court was “ the half share as set out in the scheduleto the plaint and not to a half of half”. No evidence was led by thedefendants to the contrary.
The learned District Judge accepted Advocate Panditaguna-wardene’s evidence and ordered the terms of settlement to beamended. The present appeal is against that order.
The only question that arises for decision in this appeal is whetherthe learned District Judge had the power under section 189 (1) of theCivil Procedure Code to amend the order made by him on August 28,1946. Section 189 (1) reads :—
“ (1) The court may at any time, either on its own motion or on thatof any of the parties, correct any clerical or arithmetical mistake inany judgment or order or any error arising therein from any accidentalslip or omission, or may make any amendment which is necessary tobring a decree into conformity with the judgment. ”
There is a similar provision in the Civil Procedure of India and alsoin the Rules of the Supreme Court of England Section 152 of theCivil Procedure Code (1908) of India reads :
“ Clerical or arithmetical mistakes in judgments, decrees, or orders,or errors arising therein from any accidental slip or omission may atany time be corrected by the Court either of its own motion or onthe application of any of the parties.”
Order 28, rule 11 of the Supreme Court Rules of England reads : —
“ Clerical mistakes in judgments or orders, or errors arising thereinfrom any accidental slip or omission, may at any time be correctedby the court or a judge on motion or summons without an appeal. ”There are conflicting decisions in India as to the scope of section 152.In some cases it has been held that errors made by parties canbe amended under the section, whilst in others it has been held thatthe section is confined to the correction of errors made by the Courtitself. Chitaley in his well-known commentary on the Code of CivilProcedure says1 that the latter view cannot be accepted as a soundone.
1 Vol. 1, p. 1046.
■TAy Krrr.F.lTli! J.—Hinnihamy v. Caralia.
The English Courts have taken the view that errors arising by aslip on the part of Counsel, on the part of a solicitor, and on the partof a party to the action, can be oorreeted by the Court under Rule 28Order 11.
In Fritz v. Hobson1 a motion for an injunction had beenadjourned to the trial of the action. At the trial the plaintiff succeeded,but his counsel forgot to ask the the oosts of the adjourned motion.After the judgment had been drawn up and entered. Fry J. accededto an application by the plaintiff to allow the judgment to becorrected so as to include therein the costs of the adjourned motion,holding that he had power to do so either under the liberty to applyimpliedly reserved in the order on the motion, or under the libertyto apply expressly reserved by' the judgment, or under the provisionsof O. XLI A the terms of which are reproduced in Order XXVIII. r. II.
In Chessum da Sons v. Gordon2 the plaintiffs recovered judgmentfor an amount to be ascertained by a referee and costs. The refereemade his award, and the plaintiffs paid the amount of his fees.Judgment was entered for the plantiffs for the amount found to bedue by the referee with oosts to be taxed. The costs were taxed, andthe taxing master's certificate was given, and the defendant paid tothe plaintiffs the amount to the judgment and the taxed costs. Sub-sequently the plaintiffs discovered that the amount of the fees of thereferee had been omitted by their solicitor by an error from the billof costs carried in for taxation. On an application that the defendantshould be ordered to pay the amount of those fees it was held thatthere had been an error in the judgment arising from an accidentalslip or omission which could be corrected under Order XXVIII. r. 11by including therin the amount allowed on taxation in respect of thefees paid to the referee.
In Barker v. Purvis3 the judgment direoted that the defendantshould he at liberty to set off against the sum due to the plaintiffa sum of £453 on aocount of interest which the defendant had paidon behalf of the plaintiff . The amount of £453 was arrived at byan innocent misstatement by the defendant that he had paid thissum, whereas it was discovered, after the judgment was drawn up,that the defendant had by mistake overstated the amount. Thecourt allowed the judgment to be corrected under 0. XXVIII. r. II,holding that there was an error in the judgment which arose froman accidental slip of the defendant.
In re lnchcapei judgment was entered on a summons todetermine the domicil of a testator with the usual order for thetaxation and payment of the costs of all parties out of the estate.Considerable oosts had been incurred before the summons was issuedin obtaining evidence and advice on the question in England andScotland, but counsel did not ask these costs to be included andthey were not provided for. It was held that, it being through anaccidental ommission of counsel within 0. XXVTII. r. 11, that these
1 (1880) 14 Ch. Div. 542.* (1886) 56 L. T. 131.
* (1901) 1 Q. B. 694.4 (1942) L. R. Chancery Div. 394.
WTJEYEWARDENE S.P.J.—SeUappu v. Bunchi Banda.
costs were not provided for, the oourt had jurisdiction to amend theorder by including the costs.
Having regard to these authorities I am satisfied that the ordermade by the learned District Judge was right. I would, accordingly,dismiss the appeal with costs.
Windham J.—I agree.