Amitabh Dhar Dubey vs Nishi Mishra
2010 Latest Caselaw 5109 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                 CRP No.178/2010 and C.M.No.19799/2010


                           Judgment delivered on: 10.11.2010

Amitabh Dhar Dubey           ..... Petitioner
                  Through: Mr. Ruchir Mishra, Advocate.

                        Versus

Nishi Mishra                       ..... Respondent
                        Through: Nemo.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Yes

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported
   in the Digest?                                        Yes

KAILASH GAMBHIR, J. Oral:
*

1. By this revision petition filed under Section 115 r/w

Section 151 of the Code of Civil Procedure, 1908, the petitioner

seeks to set aside the order dated 12.5.2010 passed by court

of the learned ADJ, Delhi.

2. A brief conspectus of facts relevant for deciding the

present petition is that vide order dated 24.7.08 the

respondent wife was granted maintenance along with

maintenance of the child and litigation expenses, but no date

from which date the said maintenance was to be paid was

mentioned in the order. Seeking clarification of the said order,

the respondent filed an application under Section 151 and 152

of the Code of Civil Procedure and vide order dated 12.5.2010

the learned trial court directed the maintenance to be paid

from the date on which the application for maintenance was

filed and not from the date of the order i.e 24.7.08. Feeling

aggrieved with the same, the petitioner has preferred the

present revision petition.

3. Mr. Ruchir Mishra, counsel for the petitioner submits that

in the absence of any specific date stated in the order dated

24.7.2008, maintenance is payable only from the date of

passing of the said order and not from the date of filing of the

application. The contention of the counsel for the petitioner is

that in the order dated 24.7.2008, no direction was given by

the learned matrimonial court to pay the amount of

maintenance from the date of the application and since the

order is silent about such date, therefore, it has to be

construed that the maintenance is payable by the petitioner to

the respondent from the date of passing of the order.

In support of his contention, counsel for the petitioner has

placed reliance on the judgment of the Apex Court in the case

of Jasbir Kaur Sehgal Vs. District Judge, Dehradun & Ors.

(1997) 7 SCC 7. Counsel submits that the order dated

12.5.2010 passed by the learned trial court on the application

of the respondent under Section 151 & 152 of CPC is clearly

illegal and perverse as the court has acted without jurisdiction.

The contention of the counsel is that under Section 152 CPC,

the court can carry out the correction only when there are

some clerical or arithmetical mistakes in the order but the

court cannot pass any substantive order afresh to decide the

rights of the parties. Counsel further submits that the denial of

maintenance amount from the date of the application was on

account of the fact that the respondent was drawing sufficient

income from her employment, being a Class-I Government

Officer and therefore, by allowing the application moved by

the respondent under Section 151 and 152 of CPC, the learned

trial court has taken a fresh decision on the main application of

the respondent moved under Section 24 of the Hindu Marriage

Act. Counsel further submits that in the order dated

10.11.2009 passed by this Court at the time of deciding the

petition bearing C.M.(M) 1196/2008 filed by the petitioner, the

Court clearly observed that the respondent was not entitled to

any maintenance for herself and the said order was duly

taken into consideration by the learned trial court at the time

of passing of the impugned order dated 12.5.2010.

4. I have heard learned counsel for the petitioner at

considerable length.

5. The present petition filed by the petitioner is totally

misconceived. The application under Section 24 of the Hindu

Marriage Act was preferred by the respondent wife on

16.7.2007 to seek grant of maintenance amount of

Rs.1,28,000/- p.m. besides claiming a sum of Rs.2 lacs towards

litigation expenses. The said application was decided by the

learned trial court vide order dated 24.7.2008, thereby giving

directions to the present petitioner to pay Rs.20,000/- p.m. as

maintenance for the respondent wife and Rs.10,000/- p.m. for

maintenance of the child. The petitioner was also directed to

pay a sum of Rs.25,000/- towards the litigation expenses. The

petitioner was also directed to clear the arrears within a period

of three months. The said order was assailed by the petitioner

by filing a petition bearing C.M.(M) No. 1196/2008. In the said

petition the respondent took a stand that the order dated

24.7.2008 is silent as to from which date the maintenance

should be paid to the respondent wife and the minor child. The

counsel for the respondent also submitted that she had

already moved an application to seek clarification of the order

dated 24.7.2008 passed by the learned trial court but the

same was kept pending by the learned trial court on account

of the pendency of CM.(M) 1196/2008 filed by the petitioner in

the High Court. This Court then gave directions to the learned

trial court to proceed with the said application filed by the

respondent to seek clarification and to decide the same as no

such clarification could be granted by this Court in the C.M.(M)

1196/2008 filed by the petitioner. Pursuant to the said

directions, the learned trial court vide order dated 12.5.2010

disposed of the application filed by the respondent under

Section 151 and 152 of CPC. The trial court observed that

perusal of the order dated 24.7.2008 clearly shows that the

date from which the maintenance was to be paid by the

petitioner was not specified and therefore the need arose to

clarify the said order. The learned trial court held that the

rules and procedures are hand maids of justice and are made

to subserve the interest of justice and therefore, the trial court

clarified the order dated 24.7.2008 to the extent of holding

that the maintenance would be payable by the petitioner to

the respondent wife and the minor child from the date of the

application.

6. Before examining the contention of the counsel for the

petitioner that the learned trial court has acted without

jurisdiction while passing the order dated 12.5.2010, it would

be useful to reproduce the Sections 151 and 152 of CPC as

under:

"151. Saving of inherent powers of Court.

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

152. Amendment of judgments, decrees or orders.

Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

The main grievance of the petitioner is that the learned

trial court has inserted the date of the grant of maintenance

while resorting to section 152 hence exceeding its jurisdiction.

Section 152 manifestly mentions that the court on application

can correct any accidental slip or omission in the order at any

time. It is a settled legal position that the provisions of Section

152 cannot be invoked to modify, alter or add to the terms of

the original decree so as to in effect pass an effective judicial

order after the judgment in the case. Here it would be relevant

to refer to the judgment of the Apex Court in the case of

Jayalakshmi Coelho vs. Oswald Joseph Coelho (2001)4

SCC 181 where the rationale and legal position with regard to

Section 152 was discussed in detail in the following

paragraphs:

"14. So far legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases on the point may be made:

15.The basis of the provision under Section 152 C.P.C. is found on the maxim "Act us Curiae Neminem Gravabit" i.e. an act of Court shall prejudice no man (Jerk Cent-118) as observed in a case reported in AIR 1981 Guwahati 41, The Assam Tea Corporation Ltd. versus Narayan Singh and another. Hence, an unintentional mistake of the Court which may prejudice cause of any party must be rectified. In another case reported in - I.L. Janakirama Iyer and others etc. etc. versus P.M. Nilakanta Iyer : AIR1962SC633 : AIR1962SC633 it was found that by mistake word "net profit" was written in the decree in place of "mesne profit". This mistake was found to be clear by looking to the earlier part of the judgment. The mistake was held to be inadvertent. In Bhikhi Lal and others versus Tribeni and others : AIR1965SC1935 : AIR1965SC1935 it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in Master Construction Co. (p) Ltd. versus State of Orissa and another it has been observed that 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 the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake.

......................

In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits some thing which was intended to be otherwise that is to say while passing the decree the court must have in its mind that the order or the decree should be passed on a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not mention in the order or the judgment or something which was intended to be there stands added to it."

(emphasis supplied)

7. Hence it would be manifest from above that the

accidental slip or omission can be rectified under the scope of

Section 152 of CPC. The omission of mentioning of the date

from which maintenance would be granted is clearly an

accidental slip as the court in the order dated 24.7.08 has

mentioned that the "...Arrears be cleared within three

months." It evinces from this very sentence that payment of

arrears would mean that the past payment which is only in

circumstances where the maintenance is to be paid prior to

the date of passing of the order. Hence this sentence provides

a clear cut indication that the non-mentioning of the date of

grant of maintenance was an accidental slip or omission. Even

otherwise, the section operates on the principle that no man

should suffer due to the mistake of the court and if the

maintenance is denied to the respondent wife and the child on

the ground that the court did not grant maintenance from the

date of application but from the date of the order, it would

cause serious prejudice to the purpose for which the

application for maintenance is filed. Therefore, this court is of

the clear view that the learned trial court has exercised its

powers well within the scope of section 152.

8. Even in the hindsight, it is a settled legal position that the

maintenance is ordinarily granted from the date of the

presentation of the application and not from the date of the

order. There are a series of judicial pronouncements to this

effect. However, it would be relevant to mention the judgment

of the Division Bench of this court in the case Vinod Kumar

Jolly vs. Sunita Jolly 2008(147) DLT 326 where the same

legal principle was reiterated in the following paragraph:

"Insofar as other appeal filed by the wife and child of the appellant is concerned, we find from the impugned judgment that no reasons are given by the learned ADJ as to why the direction is given to pay maintenance from the date of the order only and not from the date of filing of the petition. The normal rule is that the maintenance is to be allowed from the date of filing of the petition. If this rule is to be deviated, there has to be special reasons for adopting such course. We find none."

(emphasis supplied)

Hence, as already discussed above, even in the order

dated 24.7.2008, the intendment of the court was quite clear

and even direction was given to the petitioner to clear the

arrears of the maintenance amount within a period of three

months. Had the intention of the court was to grant the

maintenance only from the date of passing of the order, then

at least no such direction to clear the arrears of the

maintenance amount within a period of three months would

have been given by the court. The judgment of the Apex Court

in Jasbir Kaur Sehgal's case (Supra) cited by the petitioner is

of no help to the petitioner in the facts of the present case as

in the said case the Apex Court held that the court has

discretion in the matter as to from which date maintenance

under Section 24 of the Act should be granted. The Apex Court

also held that such discretion of the court would depend upon

multiple circumstances.

9. Clearly, in the order dated 24.7.2008 no reasons

were given by the trial court to deny maintenance amount to

the respondent from the date of the application and once no

specific reason was given; there was no reason to deny the

maintenance to the respondent from the date of the

application.

10. So far the contention raised by the counsel for the

petitioner with regard to disentitlement of the respondent to

maintenance being Class I Government Officer is concerned, it

is quite apparent that so far grant of maintenance by the trial

court for the period prior to 1.7.2009 is concerned, the same

has been upheld by the High Court. A perusal of Para 9 of the

impugned order clearly shows that as far as the quantum of

maintenance and entitlement of the respondent wife and child

for the period prior to 1.7.2009 is concerned, the order of the

trial court has been upheld by the High Court.

11. In the light of the above, I do not find any merit in

the present petition. The same is hereby dismissed in limine

with costs of Rs.10,000/- to be paid by the petitioner with the

Delhi High Court Bar Association Lawyers Social Security &

Welfare Fund within two weeks from the date of the order. Let

the matter be put up before the Registrar General for

compliance on 10.12.2010.

November 10, 2010                KAILASH GAMBHIR, J
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