Full Judgment Text
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PETITIONER:
SMT. SOORAJ DEVI
Vs.
RESPONDENT:
PYARE LAL AND ANR.
DATE OF JUDGMENT08/01/1981
BENCH:
PATHAK, R.S.
BENCH:
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
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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]
JUDGMENT:
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
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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 Ist 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 Ist 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
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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 Ist
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.
490