MOHAMED IQBAL AND ANOTHER V. MOHAMED SALLY AND ANOTHER

054-SLLR-SLLR-1995-2-MOHAMED-IQBAL-AND-ANOTHER-V.-MOHAMED-SALLY-AND-ANOTHER.pdf


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MOHAMED IQBAL AND ANOTHER
v.
MOHAMED SALLY AND ANOTHER
COURT OF APPEAL.
S. N. SILVA, J. P/CA.,
R. B. RANARAJA
A. 1343/37
C. KANDY NO. 11827JANUARY 12, 1995.
Settlement – Amendment of Decree – S. 189 of the Civil Procedure Code -Applicability.
The Petitioners instituted action against the Respondents for a Declaration of Titleand for the ejectment of the Respondents from Lot 1A in Plan No. 2089. Theparties came to a settlement whereby they agreed to – (i) accept the terms ofsettlement entered in an earlier action (ii) accept plan 2080 as correct (iii) havethe Northern boundary of Lot 1A defined on the ground by 'X' Licensed Surveyor.
The District Judge visited the land and in the presence of the Judge, parties andtheir respective Counsel, the Surveyor demarcated the Northern boundary of Lot1A on the ground. Decree was thereafter entered on 6.6.85. On 5.7.85, theRespondent sought to have the Decree set aside contending that it was not interms of the Surveyor’s Plan. After inquiry, the Respondent was directed to tendera fresh Decree, which was signed by the Judge on 18.2.86. Thereafter thePetitioners sought to have a draft Decree tendered by them to be substituted forthe Decree entered on 18.2.86. After inquiry Court on 18.2.86, rejected theDecree entered on 18.2.86, and directed that Petitioners to tender a fresh draftDecree. The Draft decree tendered was accepted and signed on 2.1.87. TheDefendants thereafter moved .to amend that Decree. The Court on 20.10.87rejected the Decree entered on 2.1.87.
Held:
S. 189 of the Civil Procedure Code is exhaustive of the causes for which aDecree may be amended.
This section cannot be invoked by Court for correcting mistakes of its own inlaw or otherwise.
Mohamed Iqbal and Another v. Mohamed Sally
and Another (Ranaraja J.)
311
CA
A Judge cannot reconsider or vary his judgment after delivery except asprovided for in S. 189.
Per Ranaraja J.
"This Power of Court under S. 189 is to be exercised entirely at the discretionof court, and the discretion should be exercised sparingly and in general toavoid a miscarriage of justice; if not the principle of the finality of a judgmentand decree will have no meaning."
In the present case, Neither party has alleged that there has been an errorcaused by an accidental slip or omission either on the part of their respectivecounsel or Court. Thus there was no question of amending the decree tobring it into conformity with the Terms of Settlement.
APPLICATION in Revision from the Order of the District Court of Kandy
Cases referred to:
Rezan v. Ratnayake 49 NLR 265
Mapalathan v. Elayavan – 41 NLR 115
Dionis v. Arils Appu – 23 NLR 346
Dharmadasa v. Meerayan 50 NLR 197
Thambipillai v. Muthucumaraswamy 57 NLR 97
Wanigasekera v. KirihamyT CLW 134
Hinnihamy v. Carolis 49 NLR 31
Vivekasivenmany v. Ramasamy 69 NLR 433
D. R. P. Gunatilake for Petitioner.
Faiz Musthapa P. C., with G. L. Geethananda for Respondents.
Cur adv vult.
February 10, 1995
RANARAJA J.
The Petitioners (plaintiff) and his grandmother instituted actionagainst the Respondents (defendants) for a declaration of title to theland described in the schedule to the plaint and depicted in plan no:2080 dated 30.10.69 prepared by K. G. Herath Licensed Surveyor,and for the ejectment of the respondents from lot 1A in that plan. Thedefendants filed answer praying for a dismissal of the plaintiff's
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action. When the matter came up for trial on 20.11.84, the partiescame to a settlement whereby they agreed.
to accept the terms of settlement entered in an earlier actionDC Kandy case no. 9118/L,
to accept plan no. 2080 referred to as correct,
to have the northern boundary of lot 1A in plan no. 2080defined on the ground by R. C. D. de la Motte, Licensed Surveyor, inthe presence of the District Judge.
The District Judge accordingly visited the land on 14.3.85. In thepresence of the Judge, parties and their respective counsel, thesurveyor demarcated the northern boundary of lot 1A on the ground,leaving access to the defendants for the user of their lavatorysituated close to the boundary. The parties were directed to erect afence along the boundary pointed out by the surveyor. Decree wasentered on 6.6.85. On 5.7.85, the defendant filed papers in courtseeking to have the decree amended, contending that it was not interms of Surveyor de la Motte's plan. An inquiry was held into thedefendant’s application and the order thereon was delivered on23.1.86. In that order the Learned District Judge has set out whattranspired at the inspection held on 14.3.85 and directed thedefendant to tender a fresh decree. The decree tendered by thedefendant was then signed by the judge on 18.2.86. Thereupon, theplaintiff made an application to have a draft decree tendered by himto be substituted for the decree entered on 18.2.86. After hearingcounsel for both parties, Court made order dated 18.9.86 ''rejecting"the decree entered on 18.2.86. Court also directed the plaintiff tosubmit a fresh draft decree. The draft decree tendered by theplaintiff was accepted and signed by Court on 2.1.87. Thedefendants then filed papers to amend that decree. After both partiesfiled their written submissions, Court delivered order on 20.10.87once again "rejecting” the decree entered on 2.1.87. All these orderswere purportedly made under the provisions of section 189 of theCivil Procedure Code. This application is to have the order of20.10.87 set aside.
CA
Mohamed Iqbal and Another v. Mohamed Sally and
Another (Ranaraja, J.)
313
Section 189 of the Civil Procedure Code permits Court on its ownmotion or on an application by any of the parties to an action;
to correct any clerical or arithmetical mistake in any judgmentor order,
to correct any error arising in any judgment or order from anyaccidental slip or omission,
to make any amendment which is necessary to bring a decreeinto conformity with the judgment.
Section 189 is exhaustive of the causes for which a decree may beamended. Rezan v. Ratnayake(1). This section cannot be invoked byCourt for the purpose of correcting mistakes of its own, in law orotherwise even though apparent on the face of the order. Mapalathanv. Elayavan ® nor can a judge reconsider or vary his judgment afterdelivery of it in open court, except as provided for in that section.Dionis v. Arlis Appu<3). However, in a partition action, which proceedson oral as well as documentary evidence, a failure to notice thereservation of a life interest in a deed has been considered to be anaccidental slip or omission which permits the provisions of thatsection to be utilised to cure the defect in the judgment and decree.Dharmadasa v. Meerayan m. Similarly where in an appeal preferredby contesting defendants in an action, the plaintiff’s claim wasdismissed by the Supreme Court which inadvertently omitted tomake a formal order that a decree granting the defendant’scounterclaim for delivery of possession of the property in disputeshould be entered in addition to the decree for the dismissal of theplaintiff’s claim, it was held that court had the power to amend thedecree as it was an accidental omission. Thambipillai v.Muthucumaraswamy <5). The section cannot be utilised afterjudgment, for the purpose of granting a party relief which through hisown inadvertence has omitted to claim at the trialWanigasekera v. Kirihamyl6). But Court has the power to correct anerror in an order made of consent between parties, which has beendue to a slip on the part of Counsel in stating the terms of settlement
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to Court. Hinnihamy v. Carolis<7). In any event, a District Judge cannotamend a decree which has been confirmed by an appellate Court.Vivekasivenmany v. Ramasamym.
Subsection (2) of section 189 requires reasonable notice of anyproposed amendment to be given to the parties to the action or theirrespective Registered Attorneys.
The first two limbs of the section provide for the amendment of ajudgment or order by the correction of any clerical or arithmeticalerror or a mistake arising from an accidental slip or omission. Thethird limb provides for the amendment of the decree to bring it inconformity with a judgment entered or a judgment amended in termsof the provisions of the first two limbs. This power of court is to beexercised entirely at the discretion of Court. Thus Court is not boundto allow each and every application for the amendment of ajudgment, order or decree. The discretion should be exercisedsparingly and in general, to avoid a miscarriage of justice. If not, theprinciple of finality of a judgment and decree will have no meaning.
In the case of a settlement entered into by parties to an action, theterms upon which the settlement is arrived at forms the basis of thedecree. For that reason a duty is cast on the presiding Judge toensure that the terms of settlement are clear and unambiguous. Oncethe terms are recorded, no amendment should be allowed excepton the grounds stated in the first two limbs of the section. In thepresent case, neither party has alleged that there has been an errorcaused by an accidental slip or omission either on the part of theirrespective Counsel or Court. The decree entered on 2.1.87incorporates all the terms that were agreed on by the parties in Courtand at the inspection . Therefore, there was no question of amendingthe decree to bring it into conformity with the terms or settlement. Inthe circumstances, there was no justification for Court to "reject” thatdecree which was accepted and signed by Court. The order of theLearned District Judge is accordingly set aside.
We are mindful of the fact that several years have passed sincethe terms of settlement were entered. The ground situation no doubtwould have changed. However, the petitioner will be entitled to have
CA
Mohamed Iqbal and Another v. Mohamed Sally and
Another (Ranaraja, J.)
315
the relevant boundary as shown in plan No: 6314/A prepared bySurveyor de La Motte demarcated on the ground.
The application is allowed with costs.
S. N. SILVA, J. -1 agree .
Application allowed.