T.N.K. Singh, J.
1. This revision petition under Section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and order dated 28.11.2002 passed by the learned Civil Judge (Junior Division) Court No. 1, West Tripura, Agartala in Misc. Case No. 68/2002 rejecting the prayer of the petitioner for correction of the decree, prepared in pursuance to the judgment and order dated 15.10.2001 passed in Title Suit No. 10/97, by amending the description of suit land mentioned in the decree in consonance with the report of the Survey Commissioner dated 22.11.2000 (Exhibit 'X')
2. Heard Mr. D.K. Biswas, learned Counsel appearing for the petitioner and Mr. D. Chakraborty, learned Counsel appearing for the respondent.
3. The concise facts, which should be sufficient for deciding the Civil Revision are that the petitioner filed Title Suit No. 10/97 in the Court of Civil Judge (Junior Division) Court No. 1, West Tripura, Agartala against the present respondent. The facts pleaded by the petitioner in the plaint of the Title Suit No. 10/97 are that the petitioner has owned a piece of land measuring 1 ganda 3 karas 1 Kranta 10 dhurs bearing Khatian No. 29474, Dag No. 9578/50348 under the Agartala town sheet No. 12, Tahashil - West Tripura, P.S.-East Agartala, District - West Tripura which is purchased from one Shri Achintya Kumar Bhattacharjee, proforma respondent vide registered Cobala No. 1-205 dated 08.01.1990. The said land purchased by the petitioner under the said Cobala No. 1 -205 dated 08.01.1990 are more fully described in Schedule 'A' appendix to the plaint which reads as follows--
SCHEDULE-A
Within this Schedule land measuring 0.038 acres under the Agartala Town Sheet No. 12, Tahashil - West Agartala, Sub Registry - Sadar recorded in the Khatian Nos. 2947,474 Dag No. 9578/50348 bounded as follows--
North by - Smti. Namita Chakraborty (Defendant)
South by- Shri Dilip Modak (Proforma Defendant)
East by - Road.
West by - Gali road.
4. The petitioner though he provided boundary fencing just after purchasing the land in Schedule - A from Shri Achintya Kumar Bhattacharjee but could not maintain the same due to financial problem and consequently the same was damaged due to natural calamity and the boundary was remain unprotected. In the year 1994 while the petitioner started construction of his house in the Schedule - A land he found that the defendant (respondent herein) had encroached upon northern portion of the land in Schedule - A measuring 1 Kranta 4 dhurs by shifting RCC pillars towards his house and raised bamboo fencing in the land of the petitioner-plaintiff which is described in Schedule - B to the plaint which reads as follows:
SCHEDULE-B
"B" Schedule is within the "A" Schedule situated to the extreme North
boundary by--
North by - Smti. Namita Chakraborty (defendant)
South by- Shri Swapan Sharma (Plaintiff)
East by - Road.
West by - Gali road.
Within this boundary the land measuring 1 kranta 4 dhurs.
5. The relief sought for the Title Suit No. 10/97 by the plaintiff-petitioner are that—-
1) A decree of khas possession of the land in the Schedule 'B' based on title over the said land of the plaintiff-petitioner by demolishing of unauthorized boundary fencing of the defendant (respondent herein) standing on the suit land.
2) Pass any other decree or decrees as the Hon'ble Court may deem fit and proper.
In view of the pleadings of the parties the learned trial Court framed six (6) issues:
1. Whether the suit is maintainable in its present form and nature ?
2. Whether the suit is hit by provisions of Order 2,Rule 2 C.P.C?
3. Whether the plaintiff is the lawful owner of the land described in Schedule 'A' of the plaint?
4. Whether the plaintiff has been dispossessed from the 'B' Schedule land If so, when?
5. To what relief, if any, are the parties entitled?
6. Is the suit bad for non-joinder of the State of Tripura ?
6. In the course of trial of the Title Suit No. 10/97, the learned Court in exercise of its power under Rule 9 and 10 of the Order XXVI of the CPC appointed Commissioner for investigation as per writ as to whether the suit land in Schedule-B attracts the purchase land i.e., land in Schedule - A under the sale deed dated 08.01.1990 by the petitioner. As per the report of the Commissioner, which has been marked as exhibit 'X', the said land attracts the purchase land of the petitioner/plaintiff to the extent of 215 sq. fts. which measured more than the land originally described in the Schedule - B of the plaint.
7. It is fairly well settled that in the Civil Suit, the civil Court has to consider the only case of the plaintiff pleaded in the plaint and the relief is to be granted basing on the pleaded case of the plaintiff. In other words, the Court cannot make out a new case for granting a relief. The trial Court has to grant the relief i.e., relief for khas possession of the land described in Schedule - B based on title over the said land of the plaintiff- petitioner by demolishing of unauthorized boundary fencing of the defendant-respondent standing on the suit land if the plaintiff-petitioner could prove his case. The trial Court while passing the judgment and decree for khas possession of the land in Schedule - B to the plaint, the particulars and the area of the Schedule - B of the land would be inconsonance with the boundary and area described in Schedule B to the plaint. For the reasons best known to the petitioner, he did not file any application for amendment of the area of the suit land described in Schedule-B to the plaint inasmuch as the petitioner-plaintiff should know that the relief for khas possession of the land at Schedule- B would be on the basis of his pleaded case i.e., boundary and area of the suit land described in Schedule-B to the plaint.
8. The Trial Court had decided the Title Suit No. 10/97 in favour of the plaintiff-petitioner by passing judgment and decree dated 15.10.2001. As stated above, decree for khas possession of the suit land at Schedule-B was prepared on the basis of the boundary and area of the suit land mentioned in the Schedule-B to the plaint. After the Title Suit No. 10/97 was finally disposed of by judgment and decree dated 15.10.2001 the petitioner filed an application under Section 152 of the CPC for correction of decree by amending the description of the suit land i.e., Schedule-B to the plaint inconsonance with the report of the Survey Commissioner dated 22.11.2000 which had been marked as Exhibit 'X'. The said application under Section 152 of CPC had been registered as Misc. Case No. 68/2002 by the learned Civil Judge (Junior Division) Court No. 1, West Tripura, Agartala. The defendant-respondent also filed the written objection to the said application for correction of the decree. The learned Trial Court (Junior Division) Court No. 1, Agartala passed the judgment and order dated 28.11.2002 for rejecting the Misc. Case No. 68/02 with a finding that Section 152 of the CPC only authorize the Court to correct any clerical or arithmetic mistake in the judgment or decree or error arising therein from any accidental slip or omission only and in such a circumstances when the Title Suit No. 10/97 was decreed in favour of the petitioner in respect of the 'B' Schedule land of the plaint, there is no scope to include any portion of land encroached upon by the defendant-respondent beyond that area as mentioned in the Commissioner's report exercising the power under Section 152 CPC. Hence the present revision against the judgment and order of the learned Trial Court dated 28.11.2002 passed in Misc. Case No. 68/02. For ready reference Section 152 of the CPC is quoted hereunder:
152. Amendment of judgments, decrees or orders--Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
9. The Apex Court in the case of Shri Mandir Sita Ramji v. Governor of Delhi reported in held that when a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notion of justice. When the legislature has spoken, judges cannot afford to be wiser.
10. It is the mandate of the legislature that application under Section 152 of the CPC for correction of the decree should be made only when there are clerical or arithmetical mistake in the decree or error arising therein from any accidental slip or omission and such correction could be made by the Court either on his own omission or on the application of any of the parties. The power of rectification of clerical, arithmetical errors or accidental slips does not empower the Court to have a second thought over the matter and to find that a better order or decree could or should be passed. Over and above there cannot be any intention on the part of the Trial Court in a civil suit for passing a decree on the basis of a case not pleaded by the plaintiff. In the present case, the Trial Court could only pass the judgment and decree for khas possession of the suit land described in Schedule-B to the plaint and as such in passing decree for khas possession of the suit land inconsonance with the boundaries and area of the suit land mentioned in Schedule-B to the plaint, it cannot be stated that there are clericals or arithmetic mistakes in preparing the decree.
11. The Apex Court in Civil Appeal No. 3241/2006 between M.R. Tyagi v. Shri Devi Sahai Gautam held that 'misplaced sympathy in favour of any of the parties results in injustice to the other party. In the present case it would be misplaced sympathy in favour of the petitioner-plaintiff who failed to pleaded his case properly in the plaint, had the application under Section 152 of the CPC for correction of the decree basing on the not pleaded case been allowed by the Trial Court. The learned Counsel appearing for the respondent had referred the following cases:
1. : State of Punjab v. Darshan Singh.
2. : Bijay Kumar Saraogi v. State of Jharkhand.
3. : New India Assurance Co. Ltd. v. Charubala Das and Ors.
12. The fact of the case in the State of Punjab v. Darshan Singh (supra) that the respondent as a plaintiff filed a declaratory suit challenging his removal from service. After considering the evidence on record the suit was dismissed and appeal was preferred before the Additional District Judge who held that the dismissal was bad. While granting the relief to the respondent employee, the first appellate Court also made the following order—
It is made clear that it is up to the Department to grant him or not to grant him increments for the past service rendered by him. It will be again for the Department to decide whether be is or he is not fit to be promoted after taking his past service into account.
The respondent filed an application under Section 152 CPC claiming that the aforequoted directions were not in order and deserves to be deleted. By an order dated 03.02.1988 the learned Additional District Judge deleted the aforequoted portion on the ground that if the said portion remains, it would have the effect of neutralizing the relief granted to the plaintiff-appellant before it. Allowing the appeal filed against the decision of the High Court whether by the order dated 03.02.1988 passed by the first appellate Court was approved, the Apex Court held in para No. 12 and 13 that:
12. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or 'errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and docs not contemplate passing of effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the tribunal cannot and, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefore and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes, which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party, if at all, is to file an appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the section cannot be pressed into service to correct an omission, which is international, however erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the Code even after passing of effective orders in the list pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. Similar view was expressed by this Court in Dwaraka Das v. State of M.P. and Jayalakshmi Coelho v. Oswald Joseph Coelho. 13. The basis of the provision under Section 152 of the Code is founded on the maxim 'actus curiae neminem gravabit' i.e., an act of Court shall prejudice no man. The maxim 'is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law'. Said Cresswell, J. in Freeman v. Trandah (ER p. 967). An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court, liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.
13. The ratio laid down by the Apex Court in State of Punjab (supra) and Bijay Kumar Saraogi (supra) are followed by this Court in New India Assurance Co. Ltd. (supra) and held in para No. Band 14 that:
13. In fact, the Apex Court in Dwarka Das (supra) deprecated the practice of correcting or reversing findings by taking recourse to Section 152, when it observed, 'It has been noticed that the Courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial Court had specifically held the respondents-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach, which impliedly meant that the Court had rejected the claim of the appellant in so far as pendent elite interest was concerned. The omission in not granting the pendent elite interest could not be held to be accidental omission or mistake as was wrongly done by the trial Court while order, dated 30th November, 1943. The High Court was, therefore, justified the setting aside the aforesaid order by accepting the revision petition filed by the State.
14. I may also pose here to point out that Mr. Phukan has referred to the decision in Bijay Kumar Saraogi v. State Jharkhand reported in 2005 AIR SCW 2421. This decision does not help the case of the claimant-opposite party inasmuch as the Apex Court, in this Case too, has clearly held that a bare perusal of Section 152 makes it clear that Section 152 CPC can be invoked for the limited purpose of correcting clerical errors or arithmetical mistakes in the judgment. The Apex Court has further observed in Bijay Kumar Saraogi (supra), thus, 'The section cannot be invoked for claiming a substantive relief, which was not granted under the decree, or as a pretext to get the order, which has attained finality reviewed. If any authority is required for this proposition, one may refer to the decision of this Court in State of Pubjab v. Darshan Singh .
14. The learned Counsel appearing for the petitioner has relied upon the decision of the Apex Court in Jayalakshmi Coelho v. Oswald Joseph Coelho reported in 2001 AIR SCW 1013. It is also fairly well settled principle of law that a judgment is to be understood in the context of fact of the particular case (Reference:- Radhakrishna Agarwal and Ors. v. State Bank of Bihar and Ors. reported in . The learned Counsel appearing for the petitioner by basing on the ratio laid down in Jayalakshmi Coelho (supra) submits that as the trial Court had the intention of passing judgment and decree for khas possession of the suit land described in Schedule-B to the plaint by basing on the report of the Commissioner which was exhibited as 'X', application under Section 152 CPC for correction of the decree could have been allowed. But this Court is of the considered view that such submission of the learned Counsel for the petitioner is misplaced inasmuch as there cannot be intention on the part of the trial Court to pass a decree basing on a case which is not pleaded by the plaintiff inasmuch as in the present case the pleaded case of the petitioner is that area and boundaries of the suit land are described in Schedule-B to the plaint. As discussed above, the power of clerical, arithmetic errors or accidental slip does not empower the Court to have a second thought over the matter and to find that a better order or decree could or should be passed.
15. The learned Counsel appearing for the petitioner by referring to the decision of the Apex Court in the case of Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan reported in submits that this Court has the power and jurisdiction to mould the relief sought for in the Title Suit. This court is folly endorsing such submission made by the learned Counsel appearing for the petitioner, but the present revision is not against the judgment and decree passed by the trial Court in the Title Suit No. 10/97. The present revision petition is against the impugned judgment and order dated 28.11.2002 passed by the learned trial Court refusing to amend the decree passed in Title Suit No. 10/97. In other words the present revision petition cannot be treated as continuation of the Title Suit No. 10/97 and as such there cannot be question of moulding the relief sought for in the Title Suit No. 10/97, which had attained the finality.
16. The Apex Court has discussed a provision of Section 152 of the CPC in Jayalakshmi Coelho (supra) and held in para No. 13 and 14 as follows:
13. So far legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 CPC, any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the Court. The principle behind the provision is that no party should suffer due to mistake of the Court and whatever is intended by the Court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases on the point may be made.
14. The basis of the provision under Section 152 CPC, is found on the maxim 'Actus Curiae Neminem Gravabit' i.e., an act of Court shall prejudice no man (Jenk Cent-118) as observed in a case reported in AIR 1981 Gauhati 41, The Assam Tea Corporation Ltd. v. Narayan Singh. Hence, an unintentional mistake of the Court which may prejudice cause of any party must be rectified. In another case reported in , Janakirana Iyer v. P.M. Nilakanta Iyer it was found that by mistake words 'net profif-was written in the decree in place of 'mesne profit'. This mistake was found to be clear by looking to the earlier part of the judgment. This mistake was held to be inadvertent. In Bhikhi Lal v. Tribeni , it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in , Master Construction Co. (P) Ltd. v. State of Orrisa it has been observed that arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake. In a case reported in , Dwarakadas v. State of M.P. this Court has held that the correction in the order or decree should be of the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial Court had not granted the interest pendent elite though such a prayer was made in the plaint but on an application moved under Section 152 CPC the interest pendent elite was awarded by correcting the judgment and the decree on the ground that non-awarding of the interest pendent elite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152 CPC by the Courts beyond its scope has been deprecated. While taking the above view this Court had approved the judgment of the Madras High Court in Thirugnanavalli Animal v. P. Venugopala Pillai AIR 1940 Madras 29 and relied on Maharaj Puttu Lai v. Sripal Singh reported in AIR 1937 Oudh 191 : ILR 12 Lucknow 759. Similar view is found to have been taken by this Court in a case reported in , State of Bihar v. Nilmani Sahu, where the Court in the guise of arithmetical mistake on reconsideration of the matter came to a fresh conclusion as to the number of trees and the valuations thereof in the matter which had already been finally decided. Similarly in the case of Bai Shakriben (dead) by Natwar Melsingh v. Special Land Acquisition Officer reported in this Court found omission of award of additional amount under Section 23(1-A), enhanced interest under Section 28 and solatium etc. could not be treated as clerical or arithmetical error in the order. The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law.
For the reasons discussed above, this Court is of the considered view that the petitioner-plaintiff has utterly failed to make out any reasons for interference with the impugned judgment and order dated 28.11.2002 passed in Misc. Case No. 68/02. Accordingly, revision petition is dismissed. However, parties are to bear their own cost.