Smt. Sooraj Devi Vs. Pyare Lal & ANR
[1981] INSC 7 (8 January 1981)
PATHAK, R.S.
PATHAK, R.S.
SARKARIA, RANJIT SINGH
CITATION: 1981 AIR 736 1981 SCR (2) 485 1981
SCC (1) 500 1981 SCALE (1)46
CITATOR INFO :
R 1990 SC1605 (6)
ACT:
Code of Criminal Procedure, 1973, S.
362-Scope of.
Whether the High Court can alter or review
its own judgment in exercise of inherent powers under s. 482.
Words and Phrases-'otherwise provided by this
Code or by any other law for the time being in force'-'Clerical or arithmetical
error'-Meaning of.
HEADNOTE:
Section 362 of the Code of Criminal
Procedure, 1973, mandates a court not to alter its judgment. It declares that:
"save as otherwise provided by this Code or by any other law for the time
being in force, no Court, when it has signed its judgment or final order
disposing of a case, shall alter or review the same except to correct a
clerical or arithmetical error." The house property owned by the husband
of the appellant was sold in a court auction sale and the first respondent
purchased the property and obtained possession through the Civil Court Amin. In
his absence, it was alleged, that the second respondent (son of the appellant)
had removed the lock and entered into possession. The first respondent,
instituted a criminal proceeding against the second respondent, and he was
ultimately convicted and sentenced by the High Court under section 448 of the
Indian Penal Code, with the further direction that 'the house property be
restored to the possession of the first respondent'. Pursuant to that order the
first respondent applied for possession, but the appellant objected asserting
her right to the property. The Magistrate overruled the objection and observed
that it was open to the appellant to establish her right by way of a civil
suit. This order was upheld by the High Court.
The appellant thereafter filed a Criminal
Miscellaneous Application before the High Court under section 482 of the Code
of Criminal Procedure, 1973 alleging that she was not a party to the criminal
proceedings against the first respondent and that she was in possession in her
own right and that the earlier order of the High Court in the criminal
proceedings directing restoration of possession to the first respondent be
clarified by a declaration that it was not binding on her and did not affect
her possession. The High Court dismissed this application.
Dismissing the appellant's appeal ^
HELD : 1. The High Court was right in
declining to entertain the application. [489 C]
2. "A clerical or arithmetical
error" is an error occasioned by an accidental slip or omission of the
Court.
It represents that which the court never 486
intended to say. It is an error apparent on the face of the record and does not
depend for its discovery on argument or disputation. An arithmetical error is a
mistake of calculation, and a clerical error is a mistake in writing or typing.
[488 G] Master Construction Co. (P) Ltd. v. State of Orissa and Another, [1966]
3 S.C.R. 99 referred to.
In the instant case what the appellant sought
by the application, was not the correction of a clerical or arithmetical error,
but a declaration that the High Court order in the criminal proceedings did not
affect her right in the house property and that the direction to restore
possession to the first respondent was confined to that portion only of the
house property respecting which the offence of trespass was committed so that
she was not evicted from the portion in her possession. This controversy cannot
be brought within the description "clerical or arithmetical error".
[488 D-F]
3. The inherent power of the Court under
section 482 of the Code is not contemplated by the saving provision contained
in section 362 and, therefore, the attempt to invoke that power by the
appellant can be of no avail.
[488H-489A]
4. The inherent power of the Court cannot be
exercised for doing that which is specifically prohibited by the Code.
[489-B] Sankatha Singh v. State of U.P.
A.I.R. 1962 SC 1208 referred to.
5. The prohibition in section 362 against the
Court altering or reviewing its judgment is subject to what is "otherwise
provided by this Code or by any other law for the time being in force."
These words refer only to those provisions where the Court has been expressly
authorised by the Code or other law to alter or review its judgment. [489- B]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.
471 of 1979.
From the Judgment and Order dated 5-1-1979 of
the Allahabad High Court in Criminal Case No. 5127 of 1978.
Kameshwar Prasad and Pramod Swarup for the
Appellant.
S. K. Jain for the Respondent.
The Judgment of the Court was delivered by
PATHAK, J : This appeal by special leave is directed against an order of the
Allahabad High Court dismissing an application for "clarification" of
an earlier order made by the court in a criminal proceeding.
The dispute in this appeal relates to a
property described as house No. 24/47, Birhana Road, Kanpur. A suit filed by
the South India Trading Company against Jethmal Laxmichand was decreed and
execution proceedings were taken for the attachment and sale of the 487
aforesaid house property. The house was owned by one Khem Raj, who died leaving
a widow, Smt. Sooraj Devi (the appellant) and a son, Kailash Chandra Jain (the
second respondent). The property was purchased by Pyare Lal (the first
respondent). Pyare Lal obtained possession through the Civil Court Amin on 8th
October, 1965, but in his absence Kailash Chandra Jain is said to have removed
the lock and entered into possession. In a criminal proceeding against him on a
complaint by Pyare Lal, he was ultimately convicted and sentenced by the High
Court under s. 448, Indian Penal Code by an order dated Ist September 1970,
under which the High Court also directed "that house No. 24/47, Birhana
Road, Kanpur be restored to the possession of the complainant". Pursuant
to that order, Pyare Lal applied for possession. The appellant filed an
objection, asserting a right to the property. The Magistrate overruled her
objection, observing that it was open to her to establish her right by way of
suit. The rejection of her objection was upheld by the High Court by its order
dated 21st July, 1978.
The appellant then filed Criminal
Miscellaneous Application No. 5127 of 1978 before the High Court under s. 482
of the Code of Criminal Procedure alleging that she was not a party to the
criminal proceeding against Kailash Chandra Jain, that she was in possession in
her own right, and that the earlier order of the High Court dated 1st
September, 1970 directing restoration of possession to Pyare Lal be clarified
by a declaration that it was not binding on her and did not affect her
possession. On 5th January, 1979, the High Court dismissed the application in
view of the decision of this Court in State of Orissa v. Ram Chander Agarwala
etc. The order has led to this appeal.
Before passing on the merits of this appeal,
we may observe that the house property has been, and still is, the subject of
civil litigation. Civil Suit No. 73 of 1963 was filed by Kailash Chandra Jain
and his minor sons alleging that they were entitled to the house property and
the decree obtained by the South India Trading Company was not binding on them
and could not be executed against them. As the property was meanwhile sold and
the sale confirmed the suit was regarded as infructuous and the plaint was
allowed to be rejected for want of court fee. Instead, Civil Suit No. 53 of
1964 was filed by the minor sons of Kailash Chandra Jain claiming that they
were joint owners of the property, that the sale conferred no right, title or
interest in Pyare Lal and that they were entitled to an injunction. The
appellant, who had originally been impleaded as a defendant in the suit, was
transposed to the array of plaintiffs. The suit was dismissed in default, but
subsequently restoration was allowed by the 488 Trial Court on payment of
costs, and the time for payment of costs was extended by the High Court. A
third suit, Civil Suit No. 18 of 1977, was filed by the appellant for
partition. An application for interim injunction for preserving the appellant's
possession in the house property has been dismissed by the trial court.
The sole question before us is whether the
High Court was right in refusing to entertain Criminal Miscellaneous
Application No. 5127 of 1978 on the ground that it had no power to review its
order dated 1st September, 1970. Section 362 of the Code of Criminal Procedure
declares :
"Save as otherwise provided by this Code
or by any other law for the time being in force, no Court, when it has signed
its judgment or final order disposing of a case, shall alter or review the same
except to correct a clerical or arithmetical error".
It is apparent that what the appellant seeks
by the application is not the correction of a clerical or arithmetical error.
What she desires is a declaration that the High Court order dated Ist
September, 1970 does not affect her rights in the house property and that the
direction to restore possession to Pyare Lal is confined to that portion only
of the house property respecting which the offence of trespass was committed so
that she is not evicted from the portion in her possession. The appellant, in
fact, asks for an adjudication that the right to possession alleged by her
remains unaffected by the order dated 1st September, 1970. Pyare Lal disputes
that the order is not binding on her and that she is entitled to the right in
the property claimed by her. Having considered the matter, we are not satisfied
that the controversy can be brought within the description "clerical or
arithmetical error". A clerical or arithmetical error is an error
occasioned by an accidental slip or omission of the court. It represents that
which the court never intended to say. It is an error apparent on the face of
the record and does not depend for its discovery on argument or disputation. An
arithmetical error is a mistake of calculation, and a clerical error is a
mistake in writing or typing. Master Construction Co. (P) Ltd. v. State of
Orissa and Another.
The appellant points out that he invoked the inherent
power of the High Court saved by s. 482 of the Code and that notwithstanding
the prohibition imposed by s. 362 the High Court had power to grant relief. Now
it is well settled that the inherent power of the 489 court cannot be exercised
for doing that which is specifically prohibited by the Code. Sankatha Singh v.
State of U.P. It is true that the prohibition in s. 362 against the Court
altering or reviewing its judgment is subject to what is "otherwise
provided by this Code or by any other law for the time being in force".
Those words, however, refer to those provisions only where the Court has been
expressly authorised by the Code or other law to alter or review its judgment.
The inherent power of the Court is not contemplated by the saving provision
contained in section 362 and, therefore, the attempt to invoke that power can
be of no avail.
The High Court, in our opinion, is right in
declining to entertain the application. The appeal must be dismissed.
But we may observe that anything said by the
High Court in the criminal proceeding against Kailash Chandra Jain should not
be allowed to influence the judgment of the court in the civil suits mentioned
above or in any proceeding arising therefrom.
The appeal is dismissed.
N.V.K. Appeal dismissed.
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