IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 CRP.No. 375 of 2010() --------------------- AGAINST THE ORDER DATED 31/03/2010 IN IA 7523/09 IN OS.247/2008 of PRINCIPAL SUB COURT,ERNAKULAM .................... REVISION PETITIONER(S): PETITIONER:2ND DEFENDANT: ------------------------------------------------------------------------------------- SANTHAKUMARI V.K., AGED 52 YEARS, WIDOW OF LATE SYAMALAN, VARAPPILLIL HOUSE, MARADU VILLAGE, KANAYANNUR TALUK, NETOOR P.O MARADU (VIA), PIN - 682 304. BY ADVS. SRI.A.T.ANILKUMAR, SMT.V.SHYLAJA. RESPONDENT(S): PLAINTIFF & IST DEFENDANT: ------------------------------------------------------------------------- 1. SARI.K.G., AGED 19 YEARS, D/O.LATE GIRIJA VALLABHAN, VARAPILLIL HOUSE, MARADU VILLAGE, KANAYANNUR TALUK, NETTOOR P.O., MARADU (VIA) PIN: 682 304. 2. KRISHNAKUMAR, AGED 40 YEARS, S/O.LATE RAGHAVAN, KULANGATH HOUSE, EROOR SOUTH, TRIPUNITHURA P.O., PIN: 682 306. R2 BY ADVS. SRI.K.C.CHARLES, SRI.M.POLY MATHAI, SRI.P.CHELLAPPAN, SRI.E.N.HARI. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRP.NO.375/2010 APPENDIX PETITIONERS' ANNEXURE: ANNEX.A: COPY OF THE JUDGMENT IN O.S.NO.247/2008 OF SUB JUDGE, ERNAKULAM DTD. 21/08/2009. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.375 of 2010 --------------------------------------- Dated this 02nd day of August, 2011 ORDER Second respondent appears through counsel. Others are served but, there is no response. 2. This revision arises from an order passed by the learned Sub Judge, Ernakulam on March 31, 2010 on I.A.No.7523 of 2009 in O.S.No.247 of 2008. That is a suit for partition filed by the first respondent against petitioner and others. In the preliminary judgment and decree, there is a direction to the petitioner to pay `.20,000/- to the second respondent. The amount fixed by the learned Sub Judge, according to the petitioner is the result of an arithmetical mistake or an error arising from an accidental slip which is required to be corrected. Petitioner filed I.A.No.7523 of 2009 under Secs.151 and 152 of the Code of Civil Procedure (for short, "the Code”) to correct the judgment and decree to the effect that liability of petitioner to the second respondent is only 1/3rd of `.20,000/-. That application was dismissed by the learned Sub Judge for the reason that the application is not supported by an affidavit of the party and there is no clerical or arithmetical mistake or omission in the judgment C.R.P.No.375 of 2010 -: 2 :- to be corrected invoking Secs.151 or 152 of the Code. The said order is under challenge. 3. Learned counsel for petitioner contends that on the admitted fact liability of petitioner was only to pay 1/3rd of `.20,000/- to the second respondent, that fact was not disputed by the second respondent also and hence the direction to pay `.20,000/- to the second respondent is only an arithmetical mistake in calculating the liability of petitioner or an error arising from an accidental slip. Learned counsel for second respondent has contended that an application under Secs.151 or 152 of the Code itself is not maintainable since the proper course available to the petitioner was to challenge the preliminary judgment and decree in appeal. 4. The factual matrix is not disputed. The property sought to be partitioned belonged to Raghavan and Lakshmi. They had six children including husband of petitioner, one Girija Vallabhan. Petitioner and Girija Vallabhan have three children. While so, four among the children of Raghavan and Lakshmi and petitioner, wife of Girija Vallabhan (representing her two minor children also) release their right in the suit property to the second respondent for a total consideration of `.1,00,000/-. C.R.P.No.375 of 2010 -: 3 :- Petitioner and her children formed one group as they represented the estate of Girija Vallabhan. Thus the consideration due to them jointly was one fifth of `.1,00,000/-, ie, `.20,000/-. The daughter of petitioner on attaining majority filed the suit for partition and separate possession of her 1/18th share and that was accepted by the learned Sub Judge. In the judgment and preliminary decree there was a direction to the petitioner to pay `.20,000/- to the second respondent being the 1/5th of the total consideration of `.1,00,000/- obtained by the parties who released their right to the second respondent. It is pointed out that actually, petitioner and her two children has 1/3 share each in the share of Girija Vallabhan and the suit is filed only by daughter of petitioner and Girija Vallabhan. Hence liability of petitioner to refund to the second respondent was only 1/3 of the sum of `.20,000/- which she received on behalf of her minor daughter who later sued for partition. It is pointed out that learned Sub Judge omitted to mention that in the judgment. 5. It would appear that the above aspect of the matter was not considered by the learned Sub Judge while pronouncing judgment in the case. If it is an omission due to an accidental slip, certainly it ought to be corrected. If it is a mistake C.R.P.No.375 of 2010 -: 4 :- committed by the Court then also it has to be corrected by it. Parties cannot be asked to spent huge amount by way of Court fee and file an appeal on the principle that a mistake committed by the Court shall not prejudice a party. But, it is seen that the application was not in the proper form in that it was not supported by the affidavit of petitioner. Instead, counsel for petitioner is seen to have filed the affidavit. That is one of the reason for learned Sub Judge rejecting the application. I find some force in that. But, I am inclined to give petitioner an opportunity to cure the defect. Resultantly this civil revision is allowed by way of remand. The order dated 31.03.2010 on I.A.No.7523 of 2011 (O.S.No.247 of 2008 of the Court of learned Sub Judge, Ernakulm) is set aside and that application is remitted to the learned Sub Judge for fresh decision after giving petitioner opportunity to cure the defect by filing a proper affidavit. Learned Sub Judge shall after hearing both sides pass appropriate orders having regard to the facts and circumstances of the case. (THOMAS P JOSEPH, JUDGE) Sbna/-