Allahabad High Court
Sanjay Singh vs Civil Judge J.D Kadipur Sultanpur & Anr on 18 February, 2020
Author: Rakesh Srivastava
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 24 Case :- MISC. SINGLE No. - 4053 of 2018 Petitioner :- Sanjay Singh Respondent :- Civil Judge J.D Kadipur Sultanpur & Anr Counsel for Petitioner :- Sunil Kumar Singh Hon'ble Rakesh Srivastava,J.
(In Re:- C.M. Application No. 57454 of 2019)
1. Heard Sri Sunil Kumar Singh, learned counsel for the petitioner.
2. This is an application by the petitioner-applicant for amendment of the judgment and order dated 12.02.2018 passed by this Court in the above mentioned writ petition.
3. It appears that the petitioner had filed a Regular Suit No. 85 of 2007 for permanent injunction against the private respondent before the Court of Civil Judge (Junior Division), Kadipur, District Sultanpur.
4. On 31.10.2018, the petitioner had filed the above mentioned writ petition praying inter alia the following prayer:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to direct/command the opposite party no. 1 to decide the Suit No. 85 of 2007 in case of Prahlad Singh Vs. Land Management Committee and others which is still pending since very long time before the opposite party no. 1 within a stipulated time as contemplated in Annexure No. 1 to this petition."
(emphasis supplied)
5. On 12.02.2018, after hearing the counsel for the petitioner the writ petition was disposed of by this Court with a direction to the Court concerned to dispose of the said suit expeditiously. The order dated 12.02.2018 is extracted below:-
"Heard learned counsel for the petitioner and perused the record.
This writ petition has been filed by the petitioner for a direction to the opposite party No.1 Civil Judge (Junior Division), Kadipur, District Sultanpur for expeditious disposal of Suit No.85 of 2007.
Without entering into the merits of the case, the writ petition is finally disposed of with direction to the Civil Judge (Junior Division) Kadipur, District Sultanpur to decide the Suit No.85 of 2007 (Prahlad Singh vs. Land Management Committee and others) as expeditious as possible in accordance with law, if there is no legal impediment."
(emphasis supplied)
6. The record reveals that the petitioner again approached this Court by filing Writ Petition No. 10111 (M/S) of 2019, Sanjay Singh Vs. Civil Judge (J.D.), Kadipur, Sultanpur & Ors. praying for a direction to the Civil Judge to dispose of the said suit within a certain time frame. After arguing at some length the counsel for the petitioner requested that the said writ petition be dismissed as withdrawn with with liberty to the petitioner to approach the appropriate forum. This Court acceded to the request made and passed the following order:
"Heard learned counsel for the petitioner.
After making submission at length, learned counsel for the petitioner requested that this writ petition may be dismissed as withdrawn with liberty to approach the appropriate forum.
Prayer is allowed.
Accordingly, the writ petition is dismissed as withdrawn with liberty to approach appropriate forum."
(emphasis supplied)
7. It is, thereafter, that the petitioner has moved the present application for amendment praying that the order dated 12.02.2018 be amended and some time limit be fixed for the Civil Judge to decide the suit mentioned above.
8. The learned counsel for the petitioner has submitted that the order dated 12.02.2018 was served upon the Court concerned on 26.02.2018 but despite that till date no progress has been made in the said suit and only general dates are being fixed. In the circumstances, the counsel submits that the order dated 12.02.2018 be amended and some time limit be prescribed.
9. The application for amendment moved by the petitioner-applicant is absolutely misconceived and is an abuse of the process of the Court and is liable to be dismissed.
10. It is now well settled that an application for clarification or modification/amendment touching the merit of the matter is not maintainable. If there is an error apparent on the face of the record, an application for review would be maintainable but an application for clarification and/or modification/amendment cannot be entertained.
11. Though the provisions of the Code of Civil Procedure are not applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Code will apply even to writ petitions. (see Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234).
12. Section 152 of the Code postulates correction of clerical or arithmetical mistakes or errors in judgments, decrees or orders. In State of Punjab v. Darshan Singh, (2004) 1 SCC 328 the Apex Court has held as under:
"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 does 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 therefor 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 intentional, 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 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. Similar view was expressed by this Court in Dwaraka Das v. State of M.P. and Jayalakshmi Coelho v. Oswald Joseph Coelho."
(emphasis supplied)
13. In Bijay Kumar Saraogi v. State of Jharkhand, (2005) 7 SCC 748, the Apex Court reiterated what was said in the case of Darshan Singh in the following words:
"3. We find no reason to interfere with the order of the High Court because a mere 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 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 Punjab v. Darshan Singh."
(emphasis supplied)
14. There is no dearth of cases wherein the Apex Court has held that an order can be modified only in a review proceeding. (See: State of Haryana and Ors. vs. M.P. Mohla, (2007) 1 SCC 457, Ram Chandra Singh vs. Savitri Devi and Ors. (2004) 12 SCC 713, Ram Jethmalani and Ors. vs. Union of India and Ors.(2011) 9 SCC 751 and Delhi Administration vs. Gurdip Singh Urban and Ors. (2000) 7 SCC 296)
15. The writ petition filed by the petitioner for disposal of his suit within a certain time frame was disposed of by this Court with a direction to the Court concerned to dispose of the said suit expeditiously. The petitioner thereafter filed a second writ petition with the same prayer which was withdrawn with liberty to approach the appropriate forum. Instead of moving an application before the Civil Judge (Jr. Div.) for expeditious disposal of the case in terms of the order passed by this Court in the second writ petition, the petitioner has filed the present application for amendment of the order dated 12.02.2020. It is a sheer abuse of the process of the Court.
16. In view of the settled legal position the application for amendment is not maintainable and is accordingly dismissed.
Order Date :- 18.2.2020 Anurag-Pradeep/-