Adil Singh v. Union of India

10. It was submitted that in the absence of any challenge having been raised, the applicants cannot possibly seek reopening of an issue which stands settled conclusively against the applicant and that too by way of applications which are styled as being one for clarification and correction.

11. It was then submitted that the applications as moved cannot possibly be sustained under Section 152 Civil Procedure Code. Learned senior counsels contended that the prayers made would clearly not fall within the ambit of that provision which, as is well settled, stands restricted to an accidental slip or omission. Learned senior counsels argued that the instant applications though ostensibly moved for clarification, in essence seek a reconsideration of issues that stood settled on merits. It was submitted that it was manifest from a consideration of the pleadings and the submissions advanced in support of these applications that the applicants fundamentally seek a review of the judgment rendered on these appeals which would be clearly impermissible.

12. The principles which must govern the exercise of power under Section 152 of the Civil Procedure Code were succinctly explained by the Supreme Court in State of Punjab Vs. Darshan Singh (2004) 1 SCC 328 in the following terms: -

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 152as 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. [(1999) 3 SCC 500] and Jayalakshmi Coelho v. Oswald Joseph Coelho [(2001) 4 SCC 181].

13. The basis of the provision under Section 152 of the Code is founded on the maxim “actus curiae neminemgravabit” i.e. an act of court shall prejudice no man. The maxim “is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law”, said Cresswell, J. in Freeman v. Tranah [12 CB 406: 138 ER 964] (ER p. 967). An unintentional mistake of the court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa [AIR 1966 SC 1047: (1966) 17 STC 360] it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court, liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.”

13. Darshan Singh lucidly culls out the tests which must be applied while evaluating a contention whether what is termed as a mistake or an omission would be rectifiable in exercise of powers conferred by Section 152 of the Civil Procedure Code. As the Supreme Court explained, the power to rectify as conferred by that provision, is not akin to that of the review power of the Court. It stands confined to correction of what would fall within the genre of an inadvertent slip or oversight. It would extend to situations of miscalculation or mistakes in the mentioning of particulars on account of an unintended or innocent lapse on the part of the Court. It is in the aforesaid context that the Supreme Court in Darshan Singh uses the expression “ministerial powers” of the Court. The corrective power enshrined in Section 152 of the Civil Procedure Code, however, cannot extend to all mistakes that may come to beset a judgment. The power so conferred, would clearly not extend to sanctioning a Court altering, modifying or adding to the final decision rendered. It is pertinent to bear in mind the clear distinction that must necessarily be recognized to exist between a clerical or ministerial error in a judgment and what may be termed as an error apparent on the face of the record and which relates to the merits of the cause. While the latter may warrant or justify an action in review, it would clearly fall beyond the purview of a petition for rectification under Section 152 of the Civil Procedure Code. Having noticed the basic principles which would apply, the Court proceeds to consider whether the prayers made in the instant applications are liable to be granted.

14. The Court notes that the issue of apportionment was duly noticed and considered by the Reference Court in its judgment. That decision held that the landholders were entitled to retain the compensation in its entirety. While it is true that the said decision in turn was based on the order of 29 May 2001 delivered inter partes in Section 30/31 proceedings which held the field at that time and came to be subsequently set aside on 4 January 2013, this does not detract from the undisputed fact that the present applicants did not take any legal recourse against the decision handed down by the Reference Court or to seek a reopening of the judgment so rendered in this regard. The findings with respect to the entitlement of the landholders as recorded in that judgment were thus permitted to remain intact. This issue then came to be raised by the applicants in the present set of appeals as would be evident from the order of 29 November 2018. However, a careful reading of that order establishes that no final verdict on the contention as raised came to be entered by the Court. More fundamentally, the Court notes that this issue neither appears to have been raised or agitated at the stage when the appeals were taken up for final hearing. This is clearly evident from the recordal of rival submissions by the learned Judge in the final decision which was rendered. Even in the present applications, it is not the case of the Union that this issue was in fact raised and addressed at the time when the appeals were taken up for final hearing. The applicants rest their case solely upon the contents of the order of 29 November 2018 in this respect.

15. That then takes the Court to evaluate the import of the orders passed by the learned Judge on 21 May 2021 and 9 July 2021on the miscellaneous applications for release and noted hereinabove. This Court at the outset notes that the learned Judge has while requiring the landholders to furnish security to the extent of 25% of the compensation awarded as a precondition to the release of securities deposited, formulated that direction “without prejudice to the rights and contentions of parties…”. It is thus manifest that the direction for the landholders to furnish security to the extent of 25% as framed in that order is not based on any authoritative adjudication with respect to entitlement or apportionment. To the contrary, in these proceedings the Court is invited by the applicants to directly rule upon the rights of respective parties and to return a categorical finding with respect to the extent of entitlement of parties in the ultimate compensation which was awarded. This the Court notes since notwithstanding the prayer though innocently couched as being one for clarification and correction, if granted may cast a serious cloud upon the terms of the final judgment rendered by this Court on these appeals. It would essentially amount to the Court impliedly according an imprimatur upon the right of the Union to claim 25% of the compensation awarded. More importantly and as is manifest from a reading of the order of 29 November 2018, the Court had merely recorded the contention of the Union with respect to its claim for the compensation being apportioned to the extent of 25% in its favor. The order cannot possibly be interpreted as accepting that contention addressed on behalf of the applicants. In any case and as was noticed hereinabove, that contention does not appear to have been argued or raised at all when these appeals were heard finally.

16. This Court upon thoughtful consideration thus finds itself in an unenviable position for it is convinced and of the firm view that adopting the course taken by the order of 21 May 2021 would be legally unsustainable on a more fundamental plane. The introduction of an apportionment proportion during the course of consideration of an application under Section 152 of the Civil Procedure Code would clearly amount to a critical modification and variation of the final judgment of 4 May 2021. It would undoubtedly result in a vital alteration of a concluded adjudication relating to the merits of the case and the rights of parties as finally determined. The adoption of this course would clearly fall foul of the interdict as entered in Darshan Singh of courts proceeding to pass “an effective judicial order after the judgment in the case”.

17. In view of the aforesaid discussion, this Court is of the firm view that the instant applications seeking to invoke the powers of this Court conferred by Section 152 of the Civil Procedure Code lack merit. The grounds on which these applications are pressed if countenanced would clearly amount to the Court touching upon the merits of the dispute. While this is not to say that the applicants are rendered remediless, the applications clearly fail to establish the existence of an accidental omission or mistake which may justify the Court accepting the prayers as made and that too in exercise of its limited powers of rectification as conferred by the said provision.

18. While parting the Court also bears in mind the fact that against the final judgment of this Court of 4 May 2021, appeals are stated to have been filed by respective parties and are pending consideration of the Supreme Court. In fact, the attention of the Court has been drawn to the interim orders passed on the Special Leave Petitions and the fact that those appeals have been entertained and placed for further consideration. In the considered opinion of this Court, it would be wholly inappropriate for this Court to reopen the final judgment of this Court at this stage especially when it has come to the conclusion that the facts do not warrant the invocation of the powers conferred by Section 152 of the Civil Procedure Code and additionally when it would be open to respective parties to assert all rights and contentions in those appeals.

19. For all the aforesaid reasons, these applications shall stand dismissed. The Court further clarifies that the observations made in this order are confined to the consideration of whether the final judgment of this Court suffered from an accidental mistake or omission thus warranting the invocation of the powers conferred upon the Court by Section 152 of the Civil Procedure Code. They are thus neither liable to be read as prejudicial to any other remedy that may be available for redressal nor to foreclose the rights and contentions of respective parties in any independent proceedings that may be chosen to be initiated. CM APPL. 36387/2021 (For Release/Discharge of the Security Bond) in LA.APP. 921/2008

1. The aforesaid application has been made by the second respondent in the aforenoted appeal seeking release of the security bonds which were furnished pursuant to the interim orders passed by the Court during the pendency of the appeal. The prayer as made reads thus:- “It is, therefore, most respectfully prayed that this Hon‟ble Court may kindly be pleased to discharge/release the Security Bond dated 14.11.2008 furnished by Mr. Indrave Singh Mann and the Security Bond dated 15.01.2009 (Mark „A‟) jointly furnished by Mr. Indrave Singh Mann and Mr. Shivender Pal Singh Mann (since deceased) and to release the title documents of the property No. 11, Kautilya Marg, Chanakya Purl, New Delhi-110021, to Mr. Indrave Singh Mann, owner of the said property. Any other or further order as this Hon‟ble Court may deem fit and proper be also passed in favour of the Respondent No.2.”

2. The appeal preferred by the Delhi Metro Rail Corporation [DMRC] came to be dismissed in terms of the judgment rendered by the Court on 4 May 2021. During the pendency of the appeal, the Court by an order of 23 September 2008 had required the appellant to deposit the entire amount as awarded by the Reference Court with liberty to the respondents to withdraw the amount so deposited subject to furnishing security for restitution in case the appeal succeeded. The aforesaid order was clarified on 13 February 2009 with the Court providing that the amount lying in deposit would be released in favour of the second respondent [the present applicant] alone. It further transpires that alongwith security bonds that were furnished in compliance with the conditions imposed by the Court in its order of 23 September 2008, the title documents relating to property no. 11 Kautilya Marg, Chanakyapuri New Delhi were also submitted and are stated to be in the possession of the Registry of this Court. The title documents are stated to have been taken on board by the Registrar General of the Court after recording the statements of Sri Indrave Singh Mann [the husband of the present applicant and whose affidavit supports the application for release] and Sri Shivendra Pal Singh Mann. The latter is stated to have passed away on 31 March 2017.

3. The applicants have urged that since the present appeal has come to be dismissed, the title documents are liable to be released and handed over to Mr. Indrave Singh Mann the sole surviving owner of the property in question.

4. The applicants have also apprised this Court that against the judgment of 4 May 2021, DMRC as well as the landholders have filed separate Special Leave Petitions before the Supreme Court. The Union which was the first respondent in the appeals disposed of by this Court is yet to challenge the judgment of 4 May 2021.The petitions preferred by DMRC and the landholders were initially called on 15 September 2021 when it was provided that the compensation amount as enhanced by this Court would be deposited in the Registry and the landholders would be entitled to withdraw fifty percent of the deposited amount without furnishing security and the remaining amount upon furnishing third party security together with an undertaking to make good the amount withdrawn in the event of modification of the market value as determined by this Court in terms of its judgment of 4 May 2021. The appeals were thereafter called on 4 October 2021 when the Supreme Court clarified that the amount would have to be deposited with the Reference Court. Significantly the final judgment which forms the subject matter of those appeals has not been placed in abeyance.

5. Undisputedly the security tendered by the present applicant was pursuant to the orders passed by this Court on 23 September 2008 and in order to secure the amount which was withdrawn by the applicant here. It becomes relevant to note that the appellant at that stage was required to deposit the amount adjudicated as payable by the Reference Court. This Court by its judgment of 4 May 2021 has held the applicant and other landholders entitled to further compensation.

6. These applications are opposed by the first respondent in these appeals, namely the Union, which contends that 25% of the total compensation which was awarded by the Reference Court is liable to be apportioned in its favour and therefore the prayers as made in these applications are not liable to be granted till such time as the present applicant furnishes security to the extent of 25% of the total compensation determined. The attention of the Court is drawn to the fact that in terms of the orders passed by this Court during the pendency of these appeals, the applicant and other landholders had been permitted to withdraw the entire compensation as determined by the Reference Court without recognising the right of the Union to 25% of the same.

7. The claim of the Union to 25% of the compensation so determined rests on an order of 4 January 2013 passed in proceedings referable to Sections 30/31 of the 1894 Act and numbered as RFA 838/2002. It transpires from the record that by an order of 29 May 2001, the landholders were held entitled to withdraw the entire compensation that was awarded at that stage. This order came to be challenged by the Union by way of the RFA noted above and which came to be allowed by this Court and it being held that the Union would be entitled to 25% of the amount awarded. The respondent points out that since the Reference Court came to pronounce its judgment on 30 May 2008 and thus evidently before the RFA came to be decided, their right to receive 25% of the amount awarded was not safeguarded.

8. It is further contended on behalf of the first respondent that although the factum of the passing of the subsequent order on RFA 838/2002 was duly brought to the attention of this Court during the pendency of the appeals, the final judgment of 4 May 2021 inadvertently has failed to make a provision in this respect. It is in the aforesaid backdrop that the Union has also moved applications under Section 152 of the Civil Procedure Code for rectification of the final judgment.

9. The Court notes that those applications have by the order set out above and pronounced today been dismissed for reasons recorded therein. The Court upon due consideration and for detailed reasons recorded in that order has held that the plea for rectification, clarification or correction would not be maintainable. The Court has for reasons recorded in that order found that the prayer of the Union for the final judgment being reopened and a stipulation with respect to apportionment being made cannot be countenanced. Since elaborate reasons have been recorded by the Court while dealing with those applications and which raised pleas identical to those which are addressed in opposition to the present application, the Court deems it inexpedient to repeat that exercise except to reiterate the findings and reasons recorded therein.

10. The Court has also while passing orders on the applications for clarification, dealt with the orders of 21 May 2021 and 9 July 2021 passed by a learned Judge on separate applications for release moved by landholders and which had mandated a furnishing of security to the extent of 25% before permitting the release of security. It has found that those orders had come to be passed without prejudice to the rights and contentions of parties and without an authoritative adjudication being undertaken with regard to the claim of the Union to 25% of the compensation determined by the Reference Court.

11. Following the detailed reasons assigned while dismissing the applications for clarification made by the Union, it is held that the objections taken to this application by the first respondent cannot be sustained.

12. As was noted by the Court while dismissing those applications, till such time as the Union seeks an appropriate remedy for recognition of its right to 25% of the compensation determined, the applicant must be recognised as being entitled to the compensation in its entirety and it cannot be compelled to furnish security to the extent of 25% of the compensation. That would, in the considered opinion of this Court, clearly amount to placing a fetter upon the right of the applicant to seek release of security furnished in respect of the amount determined by the Reference Court and even before the right of the Union to claim 25% of that amount is determined or recognised, even prima facie, in accordance with law.

13. Accordingly and for the aforesaid reasons, this application is allowed. The applicant is held freed of the pledge that stood created in terms of the order of the Court of 23 September 2008. The title deeds which remain in deposit with the Registrar General of this Court may, subject to due verification, be now released in accordance with law and with expedition.

YASHWANT VARMA, J. NOVEMBER 24, 2021 BH