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C. Mangai v/s Shiva Subramanian & Others

    Miscellaneous First Appeal No. 2206 of 2013

    Decided On, 07 September 2015

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ARAVIND KUMAR

    For the Appellant: S.S. Naganand, Senior Advocate for M/s. Just Law Associates, Advocates. For the Respondent: R1 & R2, Shanmukhappa, M/s. Kesvy & Co., Advocates, R6, Anant Mandgi, Senior Advocate.



Judgment Text

(Prayer: 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.)

ORDER ON I.A.1/2015

1. 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 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 to the 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 Rs. 1,11,578/-, Rs. 78,868/- and Rs. 14,111/- respectively indicating thereunder that said amount was 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 wilfully 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 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 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

(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 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 had 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

(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 functus officio subsequent to order passed on 28.11.2014?

2. What order?'

7. Having heard the learned advocates appearing for the parties in extensor 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 any other authorised signatories from withdrawing any amounts from the 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 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 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 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.

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.

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 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 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 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 has, 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 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 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 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, 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 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 this instant case, as already noticed hereinabove, this Court after hearing rival contentions 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 this Court on 28.11.2014. If it we

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re 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 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 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 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.
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