dated this the 7 th - karnatakajudgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/...1 ® in...
Post on 13-Mar-2020
4 Views
Preview:
TRANSCRIPT
1
® IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF SEPTEMBER, 2015
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.2206/2013
BETWEEN: SMT.C.MANGAI D/O S CHOKKALINGAM AGED ABOUT 26 YRS REP. BY HER GPA SRI S.CHOKKALINGAM ...APPELLANT (BY SRI.S.S.NAGANAND, SR.ADVOCATE FOR M/S.JUST LAW ASSOCIATES, ADVOCATES) AND: SRI SHIVA SUBRAMANIAN AND OTHERS ..RESPONDENTS
(BY SRI. SHANMUKHAPPA, M/S.KESVY & CO., ADVOCATES FOR R-1 AND 2; SRI ANANT MANDGI, SR.ADVOCATE FOR R-6)
I.A.I/2015 IS FILED UNDER SECTION 151 OF CPC PRAYING TO DIRECT RESPONDENT NO.6 TO DEPOSIT ALL RECEIVABLES/RENTS DERIVED OUT OF SONA TOWERS, NO.71, MILLERS ROAD, BANGALORE BELONGING TO M/S.SUNDARAM TRUST WITH THE REGISTRY OF THIS HON’BLE COURT IN THE INTEREST OF JUSTICE.
I.A.I/2015 COMING ON FOR ORDERS THIS DAY, COURT MADE THE FOLLOWING:
2
AKJ: MFA 2206/2013 07.09.2015
ORDER ON I.A.1/2015
Heard learned advocates appearing for the parties
namely Sriyuths S.S.Naganand, learned senior counsel
for appellant/applicant/plaintiff and Anant Mandgi,
learned Senior counsel appearing on behalf of
Respondent No.6/defendant No.6.
2. By this application plaintiff-appellant is seeking
for a direction to defendant No.6/respondent No.6 to
deposit all receivables/rents derived out of Sona Towers,
No.71, Millers Road, Bangalore belonging to
M/s.Sudaram Trust, with the registry of this court.
3. It is the contention of Sri.S.S.Naganand,
learned Senior counsel appearing on behalf of plaintiff
that by order dated 28.11.2014 this court had disposed
of the appeal by directing defendant No.6 to deposit
10% of the rental income being the share of plaintiff
commencing from 01.02.2012 till date of order within
3
an outer limit of eight weeks from the date of order
before trial court and continue to deposit 10% of total
rent every month before the trial court after defraying
proportionate expenses and this direction is not being
complied by 6th defendant. He would submit that trial
court was also directed to deposit the said amount in a
Fixed Deposit which may be deposited by defendant
No.6 in any Nationalised Bank for a period of two years
and had reserved liberty to the successful party to
receive the proceeds of said Fixed Deposit as well as
accrued interest and liberty was reserved to the plaintiff
to file necessary application before trial court for
withdrawal of the amount which would be deposited by
defendant No.6 hence forth i.e., after the date of order
and trial court was also directed to adjudicate the
application for withdrawal if filed on merits and in
accordance with law and in pursuance to said order
defendant No.6 filed memos enclosing demand draft for
a sum of `1,11,578/-, `78,868/- and `14,111/-
respectively indicating thereunder that said amount was
4
being deposited towards plaintiff/appellant’s 10% share
of rental income for the month of December, 2014 and
for the period 01.02.2012 to 28.11.2014 and said
memos did not disclose the basis as to how the
amounts so deposited before the court below by 6th
defendant had been arrived at and as such there is no
compliance of the order passed by this court, which has
perforced the plaintiff to file present application. It is
also contended that though defendant No.6 had been
directed to furnish details of tenements who are in
occupation of different portions together with rents paid
by respective tenants, same had not been complied by
6th defendant despite being fully aware of the directions
issued by this court and thereby 6th defendant had
willfully disobeyed the order of this court. It is also
contended that plaintiff had got issued a legal notice on
28.02.2015 calling upon 6th defendant to furnish the
details based upon which arrears of rent had been
deposited and in response to it a reply notice was issued
on 04.03.2015 by 6th defendant enclosing the list of
5
tenements and other details and also statement of
accounts which is said to have been certified by a
Chartered Accountant which accounts have not been
audited and said statement of accounts are concocted
and fabricated with an intention to deny the appellant
benefit of 10% of the total rents due to her. It is also
contended by learned Senior counsel that expenses
shown in the statements are not corroborated by any
documentary proof and expenses indicated thereunder
are inflated and fabricated. It is further contended that
statement of accounts produced by 6th defendant along
with reply notice dated 04.03.2015 and also enclosures
filed before the trial court are fraudulent and an attempt
to circumvent the directions issued by this court.
4. Per contra Sri.Anant Mandgi, learned Senior
counsel appearing on behalf of defendant No.6 would
contend that application in question itself is not
maintainable since this court after passing of the order
on 28.11.2014 and disposing of the appeal had become
6
functus officio and as such it cannot exercise any power
to rectify or modify the order passed except under
section 152 or under review jurisdiction. As such he
contends present application is not maintainable and it
is liable to be dismissed at the threshold. He would also
submit that property in dispute was transferred to the
trust under a partition deed/family settlement where
under certain obligations had been cast on the parties
and same has not been adhered to and what has been
indicated in the said family partition/family settlement
including the supplemental deed of trust is complied by
the executor of the trust and as such there is no merit
in the contentions raised by plaintiff. In support of his
submission he has relied upon the following Judgments:
(i) (1999) 3 SCC 500 – Dwaraka Das Vs State of
M.P. and anr
(ii) (2014) 10 SCC 754 – Abdul Basit Alias Raju
and others Vs Mohd. Abdul Kadir Chaudhary
and anr
7
(iii) (2011) 11 SCC 198 – Sarup Singh and another
Vs Union of India and another
(iv) (2008) 8 SCC 92 – State Bank of India and
others Vs S.N.Goyal
5. In reply Sri.S.S.Naganand, learned Senior
counsel would contend that application in question is
maintainable and on passing of the order on
28.11.2014, this court does not become functus officio
and in support of his submission he has relied upon the
following Judgments:
(i) (1977) 1 SCC 508 -M/s.Jaipur Mineral
Development Syndicate, Jaipur Vs The
Commissioner of Income Tax, New Delhi
(ii) 1985 (1) APLJ 307 – Kambhampati
Sovamma Vs G.Radhakrishna Murthy
(iii) AIR 1987 AP 206 – Smt.Tahera Sayeed Vs
M.Shanmugam and others
8
(iv) 1988 SCC Online Kar 101 – M/s.Pierce
Leslie India Ltd., Vs Commissioner of
Income tax, Bangalore, Karnataka
(v) 2002(1) ALT 29 – Nalla Raja Reddy Vs
B.Shyam Sundar Joshi and others
(vi) (2002) 3 SCC 533 – Padma Sundara Rao
(dead) Vs State of Tamil Nadu
(vii) (2003) 5 SCC 568 – Union of India Vs
Chajju Ram (dead) by Lrs.
Hence, he prays for allowing the application and
prays for suitable directions being issued as prayed for
in I.A.1/2015.
6. Having heard the learned advocates appearing
for the parties this court is of the considered view that
following points would arise for consideration:
“1. Whether the application I.A.1/2015 can
be entertained by this court on merits or is
liable to be dismissed as not maintainable on
the ground that this court has become
9
functus officio subsequent to order passed on
28.11.2014?
2. What order?”
7. Having heard the learned advocates appearing
for the parties in extenso and on perusal of the records
it would emerge that application in question is an off
shoot of the order passed by this court on 28.11.2014 in
M.F.A.2206/2013, wherein the unsuccessful plaintiff
had questioned the correctness and legality of the order
passed by trial court dated 05.01.2013 in
O.S.1492/2012, since application filed by the
appellant/plaintiff/applicant to direct 6th defendant to
deposit all receivables/rents derived out of Sona Towers,
No.71, Millers Road, Bangalore belonging to
M/s.Sundaram Trust in the current account
No.3024638547 of Central Bank of India, Millers Road
Branch, Bangalore and for a further direction to restrain
defendants 1, 2, 3 and 6 and any other authorised
signatories from withdrawing any amounts from the
10
said account except with the permission of the court
had been dismissed. During the course of hearing of
said appeal this court noticed that there was no dispute
to the fact that plaintiff is having 10% interest in the
trust and as such she would be entitled to the proceeds
of rental income to that extent subject to the usual
expenses that may be expended for maintenance of the
building and also the incidental expenses thereto. As
such this court after considering rival contentions had
passed an order disposing of the appeal on 28.11.2014
in the following manner:
“6. Be that as it may. The fact remains that
plaintiff is entitled to 10% interest in the
proceeds namely rent receivable by the trust it
would necessarily be after defraying expenses
or expenditure the trust may incur. Plaintiff
being a beneficiary of the trust is not denied
by 6th defendant. Hence, this court is of the
considered view that ends of justice would be
met if defendant No.6 is directed to deposit
10% share of plaintiff commencing from
01.02.2012 till date within an outer limit of
11
eight weeks from today before trial court and
continue to deposit 10% every month before
trial court after defraying proportionate
expenses. After such deposit being made trial
court shall deposit the same in a Fixed
Deposit in any Nationalised Bank initially for
a period of two years and it would be needless
to state that the successful party would be
entitled to receive the proceeds of Fixed
Deposit together with interest.
7. Insofar as 10% which shall be deposited by
defendant No.6 henceforth would be subject
to result of the suit and plaintiff would be at
liberty to file necessary application before the
trial court for withdrawal of the said amount
and in the event of such an application is
filed, trial court shall examine the same on
merits and in accordance with law by taking
into consideration the expenses that may be
incurred by the trust and order for release of
such amount as it deems fit by affording
opportunity to both the parties.
Defendant No.6 shall furnish to the trial court
the details of tenaments which are in
12
occupation of tenants together with rents that
is being paid to the trust by such tenants.
Accordingly appeal stands disposed of.
8. Pursuant to above order application in question
i.e., I.A.1/2015 has been filed by plaintiff seeking
direction to 6th defendant to deposit rents derived out of
Sona Towers. It can be noticed at this stage itself that
prayer sought for by plaintiff in I.A.1 filed before trial
court which came to be dismissed on 05.01.2013 is
similar and identical to the relief sought for in
I.A.1/2013 which application had been filed along with
the appeal. As already noticed herein above this court
after hearing rival contentions of the parties had
disposed of the main appeal itself with certain directions
to 6th defendant. In this factual background it has to be
examined as to whether this court has become functus
officio subsequent to order dated 28.11.2014 as
contended by learned counsel appearing for 6th
13
defendant or it still possess power to issue further
directions.
Section 2(9) of C.P.C defines `Judgment’ as under:
“judgment” means the statement given by
the Judge on the grounds of a decree or
order”.
The term `Order’ has also been defined under C.P.C in
section 2(14) and it reads as under:
“order” means the formal expression of any
decision of a Civil Court which is not a
decree”.
Rules of Order XLI would apply mutatis mutandis,
so far as may be, to appeals from orders as indicated in
Rule 2 of Order XLIII. The subject appeal had been filed
under Order XLIII Rule 1(r) of C.P.C. Thus,
Judgment/order passed in the subject appeal i.e., order
dated 28.11.2014 would squarely fall within the
definition clause of Section 2(9) and 2(14) of C.P.C.
14
Sub-rule (3) of Order XX would indicate that once a
Judgment is dictated to a stenographer in open court
and signed same cannot be altered or added save as
provided by Section 152 or on review.
Rule (3) of Order XX as amended in Karnataka reads
as under:
“The Judgment shall bear the date on which
it is pronounced and shall be signed by the
Judge and when once signed shall not
afterwards be altered or added to, save as
provided by Section 152 or on review.
Provided also that where the Judge
pronounces his judgment by dictation to a
shorthand-writer in open Court the
transcript of the judgment so pronounced
shall after such revision as may be deemed
necessary be signed by the Judge”.
A bare reading of above provision would clearly
indicate that when Judgment is pronounced and signed
same cannot be altered or added save as provided under
Section 152 or in review.
15
9. This provision of C.P.C was the subject matter
of interpretation by the Hon’ble Apex Court in the case
of State Bank of India and others Vs S.N.Goyal
reported in (2008) 8 SCC 92 and the Hon’ble Apex
Court after analyzing said provision has held as under:
“28. We may first refer to the position with
reference to civil courts. Order 20 of the
Code of Civil Procedure deals with judgment
and decree. Rule 1 explains when a
judgment is pronounced. Sub-rule (1)
provides that the court, after the case has
been heard, shall pronounce judgment in an
open court either at once, or as soon
thereafter as may be practicable, and when
the judgment is to be pronounced on some
future day, the court shall fix a day for that
purpose of which due notice shall be given to
the parties or their pleaders. Sub-rule(3)
provides that the judgment may be
pronounced by dictation in an open court to
a shorthand writer [if the Judge is specially
empowered (sic by the High Court) in this
behalf]. The proviso thereto provides that
where the judgment is pronounced by
dictation in open court, the transcript of the
16
judgment so pronounced shall, after making
such corrections as may be necessary, be
signed by the Judge, bear the date on which
it was pronounced and form a part of the
record. Rule 3 provides that the judgment
shall be dated and signed by the Judge in
open court at the time of pronouncing it and
when once signed, shall not afterwards be
altered or added to save as provided by
Section 152 or on review. Thus, where a
judgment is reserved, mere dictation does not
amount to pronouncement, but where the
judgment is dictated in open court, that itself
amounts to pronouncement. But even after
such pronouncement by open court dictation,
the Judge can make corrections before
signing and dating the judgment. Therefore, a
Judge becomes functus officio when he
pronounces, signs and dates the judgment
(subject to Section 152 and power of review).
The position is different with reference to
quasi-judicial authorities. While some xxx
18.01.95”.
10. There is no dispute to the fact that prayer
sought for in the present application filed under section
17
151 of C.P.C seeking for a direction is similar to the
relief sought for by the very same appellant before the
trial court in I.A.1 filed under Order 39 Rule 1 and 2 of
C.P.C and same grievance was being pursued by
plaintiff before this court in appeal M.F.A.2206/2013.
There cannot be any dispute with regard to the
proposition that while exercising power under section
152 of C.P.C court can correct only arithmetical and
clerical errors which might have crept in the Judgment
or order and Section itself is express and clear in that
regard. However, the incidental question that would
arise is whether this court has power to entertain an
application under section 151 of C.P.C to modify or
substitute the order already passed by it. To support
this proposition and contending that answer has to be
in the affirmative Sri.S.S.Naganand, learned Senior
counsel has relied upon the Judgment of Apex court in
the case of M/s.Jaipur Mineral Development Syndicate,
Jaipur Vs The Commissioner of Income Tax, New Delhi
reported in (1977) 1 SCC 508 whereunder it has been
18
held that High Court once having passed an order
declining to answer the question referred to it because
of non appearance of party is not precluded from
passing an order for dispensing of the reference on
merits as it does not become functus officio. It has been
held by the Hon’ble Apex Court as under:
“5. A party or its counsel may be prevented
from appearing at the hearing of a reference
for a variety of reasons. In case such a party
shows, subsequent to the order made by the
High Court, declining to answer the
reference, that there was sufficient reason
for its non-appearance, the High Court, in
our opinion, has the inherent power to recall
its earlier order and dispose of the reference
on merits. We find it difficult to subscribe to
the view that whatever might be the ground
for non-appearance of a party, the High
Court having once passed an order declining
to answer the question referred to it because
of the non-appearance of that party, is
functus officio or helpless and cannot pass
an order for disposing of the reference on
merits. The High Court in suitable cases
19
has, as already mentioned, inherent power
to recall the order made in the absence of
the party and to dispose of the reference on
merits. There is nothing in any of the
provisions of the Act which, either expressly
or by necessary implication, stands in the
way of the High Court from passing an order
for disposal of the reference on merits. The
courts have power, in the absence of any
express or implied prohibition, to pass an
order as may be necessary for the ends of
justice or to prevent the abuse of the process
of the court. To hold otherwise would result
in quite a number of cases in gross
miscarriage of justice. Suppose, for instance,
a party proceeds towards the High Court to
be present at the time the reference is to be
taken up for hearing and on the way meets
with an accident. Suppose, further, in such
an event the High Court passes an order
declining to answer the question referred to
it because of the absence of the person who
meets with an accident. To hold that in such
a case the High Court cannot recall the said
order and pass an order for the disposal of
the reference on merits, even though full
facts are brought to the notice of the High
20
Court, would result in obvious miscarriage of
justice. It is to meet such situations that
courts can exercise in appropriate cases
inherent power. In exercising inherent
power, the courts cannot override the
express provisions of law. Where however, as
in the present case, there is no express or
implied prohibition to recalling an earlier
order made because of the absence of the
party and to directing the disposal of the
reference on merits, the courts, in our
opinion, should not be loath to exercise such
power provided the party concerned
approaches the court with due diligence and
shows sufficient cause for its non-
appearance on the date of hearing”.
11. Perusal of above judgment would indicate that
under the Indian Income Tax Act, 1922 there was no
bar for entertaining an application for recall or in other
words, it came to be held that in the absence of any
express or implied provision to pass an order for recall,
in the ends of justice or to prevent abuse of process of
the Court, it has power to recall. In the facts obtained
21
in the said case, it was noticed that reference made by
the Income Tax Appellate Tribunal to the High Court
under Section 66(1) of the Act was taken up by the High
Court and notice was ordered on the appellant/assessee
to not only appear but also to file paper books and
found that assessee at whose instance reference had
been made by the Tribunal had not put in appearance
and had also not filed paper books inspite of service of
notice. Hence, High Court declined to answer the
reference made and by order dated 26.08.1970 had
disposed of the said reference by declining to answer the
reference. Hence, assessee filed an application seeking
permission for filing of paper books and sought for
rehearing the reference, which application came to be
dismissed on the ground that Court had become
functus officio to entertain the application because of its
earlier order of declining to answer the reference. This
order of rejection of recall application was the subject
matter of appeal before the Hon’ble Apex Court. In that
background, it came to be held by the Hon’ble Apex
22
Court that High Court in suitable cases has inherent
power to recall the order made in the absence of the
party and there is nothing under the provisions of the
Income Tax Act, 1922 which either expressly or by
necessary implication stands in the way of the High
Court from passing an order for disposal of the
reference on merits. Hon’ble Apex Court after noticing
an illustration namely where the party who proceeds to
the High Court to be present at the time of reference
being taken up for hearing were to meet with an
accident and as such could not attend the hearing was
held to be good cause for non appearance and as such it
cannot be said in such circumstances that High Court
cannot recall its earlier order of declining to answer the
reference, as it would obviously result in miscarriage in
the administration of justice. It was also observed by
Apex Court that no express provision was found under
the Income Tax Act, 1922 prohibiting exercise of such
inherent power of recall. It is in this background,
23
Hon’ble Apex Court had held that High Court had not
become functus officio.
12. Keeping these principles in mind as also law
laid down by the Apex Court in the case of State Bank
of India and Others vs. S.N.Goyal referred to supra
when the facts on hand are examined it would indicate
that power of the High Court under Section 152 CPC to
modify or alter an order already passed is circumscribed
by Order XX Rule (3) CPC. As already noticed
hereinabove, Section 152 CPC 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 correction of mistake by the Court of its
ministerial action and does not contemplate of passing
an effective judicial order after rendering of the
judgment, decree or order. The corrections
contemplated under Section 152 of CPC relates to
correcting any accidental omissions or mistakes and not
of omissions or mistakes which might have been
24
committed by the Court while passing the judgment,
decree or order, as the case may be. The exercise
undertaken by Courts below in exercise of its power
under Section 151 and 152 CPC to modify or alter the
judgment or order has been frowned upon by the
Hon’ble Apex Court in Dwaraka Das and State of
Madhya Pradesh and Another reported in (1999) 3 SCC
500, whereunder it has been held as under:
“6. Section 152 CPC xxxxx erroneous that
may be. It has been noticed that the
Courts below have been liberally
construing and applying provisions of
Section 151 and 152 of the CPC even
after passing of effective orders in the lis
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.”
(Emphasis supplied)
13. In the instant case, as already noticed
hereinabove, this Court after hearing rival contentions
25
advanced by the learned Advocates appearing for parties
disposed of the appeal (MFA 2206/2013) on
28.11.2014, whereunder certain directions came to be
issued to 6th defendant and non compliance of such
direction/s, which according to plaintiff has perforced
her to approach this Court by this application in an
disposed of appeal.
14. As noticed hereinabove the power of this Court
to modify or alter a Judgment is circumscribed by Rule
(3) Order XX. It has to be necessarily held that in the
instant case this Court became “functus officio”
moment appeal was disposed of on merits. Hence, this
court desist from exercising its inherent power to pass
any order subsequent to order passed on 28.11.2014
disposing of the appeal itself. In fact, perusal of legal
notice issued by plaintiff subsequent to order passed by
this Court would clearly indicate that 6th defendant was
put on notice for having committed contempt of court
for not having complied with the directions issued by
26
this Court on 28.11.2014. If it were to be so, it is for
the plaintiff to take such steps as she may be advised in
that regard.
15. At the cost of repetition it requires to be
noticed that in the subject appeal, plaintiff had
challenged the order of dismissal of I.A.No.1,
whereunder plaintiff had sought for a direction to 6th
defendant to deposit all receivables/rents that are
derived out of “Sona Towers” a commercial building and
certain incidental and additional reliefs also. Even
prayer made in I.A.1/2013 filed along with subject
appeal is also similar to the prayer made before trial
court and prayer made in the present application i.e.,
I.A.1/2015 is also identical except to the extent of
seeking depositing of the rent in the registry of this
court than Bank. This court had disposed of the appeal
as well as I.A.No.1/2013 filed in said appeal vide order
dated 28.11.2014. When the matter is finally disposed
of by this court, yet again this court in the absence of a
direct statutory provision cannot entertain a fresh
27
application for any fresh relief, additional relief or
similar relief, until and unless the previous order of
final disposal has been set aside or modified to that
extent. To put it differently on passing of final
Judgment court becomes functus officio and as such it
cannot entertain interlocutory application for fresh
directions or further directions.
16. Hence, this Court is of the considered view that
Point No.1 formulated hereinabove requires to be
answered in favour of 6th defendant by holding this
Court has become functus officio and as such would not
be competent to entertain the application, I.A.1/2015
and same is not maintainable.
RE: POINT NO.2: 17. Learned Advocates appearing for parties
though have addressed arguments on merits in extenso,
this Court would not go into same and it would suffice if
liberty is reserved to plaintiffs to either seek review of
28
order passed by this Court on 28.11.2014 or seek for
appropriate relief before the trial Court by filing
necessary application in furtherance of order dated
28.11.2014. It is also needless to state that trial Court
would examine such application if filed and ascertain as
to whether 6th defendant has meaningfully complied
with the directions issued by this Court on 28.11.2014
or otherwise, and it would be at liberty to examine said
application on merits and in accordance with law.
Thus, without expressing any opinion in that regard
liberty is reserved to plaintiff to file application before
the trial Court and in the event of such application is
being filed, same shall be expeditiously disposed of by
the trial Court as observed hereinabove.
For the aforestated reasons I.A.No.1/15 stands
disposed of.
Sd/- JUDGE SBN/DR
top related