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® 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:

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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

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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

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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

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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

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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

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(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

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(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

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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

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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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