1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- S.B. CIVIL MISC. APPLICATION No. 47 of 2008 IN S.B. CIVIL MISC. APPLICATION NO. 74/2005 ARVIND SINGH MEWAR V/S SMT. YOGESHWARI KUMARI & ORS. Mr. MS SINGHVI & Mr. ARUN BHANSALI, for the appellant / petitioner Mr. JP JOSHI, Mr. MIRNAL KANTI, Mr. S.MUKHERJEE & Mr. PS CHUNDAWAT, for the respondent Date of Order : 13th July, 2009 HON'BLE SHRI N P GUPTA,J. ORDER This application has been filed on behalf of respondent no.1 in Civil Misc. Application No. 74/2005, hereafter to be referred to as the applicant, impleading the petitioner of Application No. 74/2005 as respondent no.1, and four more respondents being respondents no. 2 to 5 in the said Application No. 74/2005. The present application has been filed under Section 152 C.P.C. read with Section 151 C.P.C. for correction of date in S.B. Civil Misc. Application No. 74/2005 Smt. Yogeshwari Kumari Vs. Arvind Singh Mewar & Ors., decided on 5.9.2007. The averments of the application are, that civil Misc. Application no. 74/2005 was filed under Section 301 and 302 of Indian Succession Act for removal of executor. When the application came up before the Court on 17.8.2007 the matter was adjourned for two weeks, with a direction to the parties to produce material on record in support of 2 their respective stand. The office fixed 3.9.2007 as the date for listing the matter, but then it was not listed on 3.9.2007, and came up before the Court on 5.9.2007, on which date, after hearing submission on behalf of the parties, the Court dismissed the Application No. 74/2005. It is then alleged in para-5, that it appears that due to accidental slip, in the order passed by this Court on 5.9.2007, the date of order has been indicated as 3.9.2007 on page 1 of the order and at page 10 line 6 of the order, which factually should have 5.9.2007. Then, in para-6 it is pleaded that above accidental slip came to the knowledge of the applicant when he was served with the notices of D.B. Special Appeal Civil No. 19/2008 Smt. Yogeshwari Kumari Vs. Arvind Singh Mewar, wherein the fact that the matter was listed in court on 5.9.2007, and the order was allegedly passed by the Court on 3.9.2007, has been made basis for challenging the order dated 5.9.2007. Then, in para-7 it is pleaded that Civil Misc. Application No. 74/2005 was listed before, heard and decided by the Court on 5.9.2007, in the presence of counsel for the parties, and that the matter did not appear in the cause list dated 3.9.2007. Thus, it was pleaded that it is apparent, that due to accidental slip or omission, the date 3.9.2007 has been indicated in the order instead of 5.9.2007, the same needs consideration of this Court for correction. With this, it is prayed, that the date be corrected at both the places to be 5.9.2007 in place of 3.9.2007. This petition came up in the Court on 4.9.2008; on which date notices were ordered to be issued, returnable within three weeks, and were give dasti. Then, on 6.11.2008 fresh notices were ordered to be issued, and one set of notice was directed to be sent by registered post. Then, on 3 6.3.2009, when the matter came up, Mr. Singhvi informed that to his information as gathered from the computer, reply has been filed on behalf of respondent no. 1 on 11.12.2008. Therefore, the office was directed to locate it and place it on record, and at the same time the Dy. Registrar (Judicial) was also directed to enquire into the matter, and submit a report on the factual aspect of the matter, as to how the things, as alleged in the appeal, and as alleged in the application have come about. The name of the counsel who may be appearing on behalf of any of the respondent and/or, who may have filed reply, should also be shown in the cause list, and the matter was directed to be listed after four weeks. Then, the matter came up on 4.5.2009 by which time the report of Dy. Registrar (Judicial) was received, and Mr. Joshi prayed for time to look into the report, therefore, the matter was adjourned to 14.5.2009. This date 14.5.2009 was given because otherwise I was sitting in Division Bench, and on 14.5.2009 other S.B. matters were also fixed to be listed before me. Then, on 14.5.2009 Mr. Joshi submitted that he has applied for certified copy of the report of Dy. Registrar (Judl.) on 4th itself which he has received on 12th only, and therefore, prayed for time to make submission on that report. Accordingly, the matter was adjourned to 9.7.2009, on which date, the matter was heard. On that day appearance was put in on behalf of the applicant, and the present respondent no. 1 and 4 only. A reply to this petition had been sent by post by Shri Vishvaraj Singh, the present non applicant no. 4, which appears to have been received by the Registry on 25.9.2008. In parawise reply, regarding para-1 it was denied being part of record, and referring to para-2 of the 4 preliminary objection, wherein referred Civil Writ Petition No. 74/2005. Then, paras no. 2 to 5 have been replied as answering respondent is not aware of the contents. However, regarding para-5 it is pleaded that the matter be investigated, as the accidental slip had not occurred just once but twice. Then, para-6 has been denied, and it is pleaded, that it is misleading to state that the matter of incorrect dates is the basis of the appeal. Regarding para- 7 it was pleaded, that the answering respondent is not aware. Then, a reply has been filed on behalf of the present respondent no.1 Smt. Yogeshwari Kumari on 10.12.2008, pleading interalia, that the non applicant denies each and every allegation, averment, contention and/or submission made in the present application which is contrary to, and/or inconsistent with what is stated herein below, and in the D.B. Civil Special Appeal No. 19/2007, as well as in the records of the case, and unless specifically admitted. Then, as preliminary objection, the submissions have been made. In para-1 it is pleaded that the non- applicant has already challenged the judgment dt. 3.9.2007 by preferring appeal, in which appeal the main ground is, that the order passed by the learned Judge is liable to be set aside mainly on the ground, that on 3.9.2007 the matter was not listed before the learned Single Judge and, therefore, there was no occasion for him to have decided the application filed by the appellant under Sections 301 and 302. The judgment is said to have been pronounced on 3.9.2007, when the matter was not listed before the learned Single Judge. Therefore, the question of the order coming into existence on 3.9.2007, does not arise. The order passed by the learned Single Judge is liable to be set 5 aside, for this reason alone. Then, in para-2 it is pleaded that the application is misconceived and misleading, and that the applicant is guilty of stating incorrect facts, stating half truths, stating facts out of context. Instead of filing an objection in the said appeal, the applicant has filed present misconceived application. It is pleaded that it is not just believable, that the alleged accidental slip came to the knowledge of the applicant only when he was served with the notice of the said appeal filed by the non applicant no.1, wherein the judgment/order impugned in the said appeal having been passed on a date when the matter was not listed, has been taken as a ground for challenging the judgment. It is pleaded, that the alleged accidental slip ought to have, and must have, come to the knowledge of the applicant immediately upon getting a copy of the said judgment/order dt. 3.9.2007 or the certified copy thereof, rather the application is only a ploy to extend the period of limitation for filing the said application. Then, in para-3 it is pleaded that an application for review has been filed in the garb of the said application for correction of date, and has been filed for the sole purpose of having a hearing on review petition, which is not permissible under the rules of High Court, particularly when the judgment/order has already been challenged, and is pending before the Division Bench of this Court. Then, in para-4 it is pleaded that the discrepancy and/or the error in the said judgment/order dt. 3.9.2007, which is being sought to be corrected by filing the said application, is not in the nature of typographical error, and as such, if at all such correction can be made, it could have been done only upon the filing of an application for review, limitation where for has already expired. As such, the applicant cannot now be permitted to 6 do the same indirectly, what he failed to do directly by not filing an application for review. It is also pleaded that after passing of the judgment/order dt. 3.9.2007 this Court becomes functus officio for anything other than an application for review, as it would tantamount to intrusion into the jurisdiction of the Appellate Court, before which the said appeal has been filed. With raising these preliminary objections parawise reply has also been incorporated. In parawise reply paras 1 to 3 were pleaded to relating to matter of record requiring no reply. Regarding para-4 it was pleaded, that so far as it relates to matter of record, it needs no reply. However, it was denied that the non applicant no. 1 on 5.9.2007 was heard at all. It was specifically purportedly pleaded, that as mentioned in the appeal, that on 5.9.2007 Shri Vivek Patwa, Advocate appeared on behalf of counsel for the non applicant no.1 Mr. J.P. Joshi, and made a request, that the matter be adjourned, whereupon the Hon’ble Court made some query and informed the advocate appearing on behalf of Mr. Joshi, that the order will be passed in the case later on. As such it is misleading and incorrect to allege, that the non applicant no. 1 was heard on the said date. Contents of para-5 were denied, pleading it to be contrary to record of the case. Para-6 was denied. It was reiterated what has been said in the preliminary objection no. 2, to the effect that it is just not believable that the alleged accidental slip came to the knowledge of the applicant only when he was served with the notice of the appeal, wherein order having been passed on the date when the matter was not listed has been taken as a ground for challenging the same. It was also maintained that the alleged accidental slip ought to have and must have come to the knowledge of the applicant immediately upon getting a copy of the said 7 judgment. As such it was contended that the averments in no circumstances can be accepted as reasonable, cogent, plausible, and the same is an after thought, and only a ploy to extend the period of limitation for filing the said application. Then, para-7 was denied. It was maintained that the non applicant no. 1 was heard by the Court on 5.9.2007 in the presence of counsel for the parties, as alleged. Then, para-8 was also denied. It was denied that it is an accidental slip or omission, and it was pleaded that since the order dt. 3.9.2007 has already been appealed against and the said appeal is pending, the correction sought would tantamount to intrusion into the jurisdiction of the Appellate Court. Affidavit in support of this reply has been filed pleading “the statements of facts in the accompanying reply are true to my knowledge and/or are true to the records of the case. Rest of the statements in the accompanying reply are in the nature of submissions to this Hon’ble Court”. The Dy. Registrar (Judicial) in his report has reported, that the matter was listed before the Court on 17.8.2007, and on that date, the matter was adjourned for two weeks, with a direction to the parties to produce material on record in support of their respective stand. Thereafter, the office fixed the next date as 3.9.2007, for listing the matter in the Court for passing order. A perusal of cause list dated 3.9.2007 reveals that the matter was not listed before the Court on 3.9.2007, and it was listed on 5.9.2007, at S.No. 3 in the cause list. It is also reported, that it is evident from the record of the result of the cause list, that the matter was dismissed on 5.9.2007. Then, he has perused the stenographer’s diary 8 maintained by private secretary, which revealed, that the order was not dictated on 3.9.2007, and the computer print of the file history from the properties in the computer was taken, which showed that it was created in the computer by the concerned stenographer on 11.9.2007, and was modified on 12.9.2007. He has produced the necessary material on the basis of which he submitted the report. To this report objections have been filed on behalf of the present non applicant no. 1. First preliminary objection raised is, that the non applicant questions the opinion given by the Deputy Registrar on 1.5.2009, and also disputes the contents thereof. It is pleaded that the report is contrary to and/or inconsistent with the records of the case, inasmuch as, the main issue of dispute has not been addressed at all. It is pleaded that the contents of the report are contrary to and/or inconsistent with not only the records of the case but also to the statements of the non applicant no.1, which has not been denied anywhere, that in fact no hearing took place on the date which was scheduled to be fixed, either on 3rd or on 5th of September, 2007. It was reiterated that the judgment/order has already been challenged by way of appeal by raising the grounds mentioned above. The second preliminary objection raised is that the Dy. Registrar’s report is tailored not only to support and second the applicant’s contention, as would appear from the application, rather the Dy. Registrar has traveled beyond the ambit and scope of report sought by the Court, by giving a conclusive opinion, which includes persuasive elements and recommendations motivating conclusions indicating possible future actions that this Court may take. The report is also contended to have gone beyond its purpose of reporting to/informing this Court 9 with regard to the specific query. Third objection raised is that on 5.9.2007 the non applicant no. 1 was not heard by this Court, inasmuch as Mr. Vivek Patwa learned Advocate appeared and sought an adjournment/accommodation on behalf of Mr. J.P. Joshi, who was to appear and argue the case on behalf of the non applicant, whereupon this Court made some query and observed that some order would be passed later on. As such the contention of the applicant about the matter being heard on 5.9.2009 is incorrect, and is not borne out from the records/proceedings of the case. The order impugned in D.B. Civil Special Appeal No. 19/2007 pending before the Division Bench is erroneous in the fact and circumstances of the case, to the effect that since no hearing took place on 5.9.2009, this Court in no circumstance could have recorded the submissions of either of the parties, as has been recorded at page 10 of the said order, sought to be corrected. Then, parawise comments have also been made, and therein para-1 has been contended to be requiring no comment. Then, regarding para-2 it was pleaded to be requiring no comment. However, it was specifically denied, that the case was dismissed on 5.9.2007 which is contrary to record. Then, para-3 was also pleaded to be requiring no comment. Then, regarding para-4 it was pleaded that the report relates to matters of record, and as such need no comment. However, contents of para-4 of the report, in any case would remain same whether the matter was decided on 3.9.2009 and/or 5.9.2009. Then, regarding para-5 of the report it was reiterated that what has been stated herein above in the preliminary objections to the effect that Deputy Registrar’s report is tailored not only to support and second the applicant’s contention as would appear from the application for correction of the date, but has also traveled beyond the ambit and scope of a report 10 sought by this Court by giving a conclusive opinion which includes persuasive elements and recommendations, motivating conclusions indicating possible future actions that this Court may take. Interalia with this it is pleaded that the report deserves to be rejected by this Court, and the present petition requires to be dismissed. These objections are also supported by the affidavit of non applicant no.1 verifying the facts, to the effect that “the statements of facts in the accompanying objection petition are true to my knowledge and/or are true to the records of the case. Rest of the statements in the accompanying objection petition are in the nature of submissions to this Hon’ble Court”. Arguing the application, it was contended by the learned counsel for the applicant, that at page-1 and in line 6 of page-10 the date “3.9.2007” has come to be mentioned only as accidental slip, or omission while it should have been “5.9.2007” as neither the case was listed on 3.9.2007, nor was it heard, and was actually heard on 5.9.2007. It was contended that the question as to whether the matter was heard or not in the matter sought to be contended by the non applicant is a question which is already subject matter of appeal, and need not be gone into in this application. Then, it was submitted that an over all reading of the pleading, even comprised in the reply, there is no dispute, that the order has been passed on 5.9.2007, and simply because by accidental slip the date has been mentioned as 3.9.2007, on which date even according to the non applicants neither the matter was listed, nor was heard, the order could possibly not be passed on 3.9.2007. Then, it was submitted, that it is not 11 a case of review, rather it being only an accidental slip, or omission, which is required to be brought to the notice of this Court only, and for that purpose relied upon four judgments, being Bhagwati Prasad Vs. Delhi State Mineral Development Corporation reported in (1990) 1 SCC-361 (Para- 5), Central Bank of India Vs. Brajlal Kapurchand Gandhi reported in AIR 2003 SC-3028 (Para-11 & 12), R.S.E.B. Vs. Narmda Industries reported in 1992(3) WLC (Raj.)-458 (Para- 17), and Ram Kanwar Vs. Kewal Singh reported in 2006(1) WLC (SC)-92 (Para-2). It was then submitted, that as a matter of fact on 5.9.2007 Mr. Vivek Patwa, appeared on behalf of Mr. Joshi, he argued the matter for about half an hour, and after hearing both the sides, Court pronounced the order of dismissal, and observed, that the order will be dictated in the chambers, and it is precisely for this reason, that now Mr. Vivek Patwa is not coming before this Court, nor has he dared to file affidavit in support of the plea taken in the reply, lest that might have amounted to contempt of Court on his part. Then, commenting on affidavits of non applicant no. 1, it is contended that those affidavits are no affidavits in the eye of law, as she was neither present in the Court, nor had she deposed the facts/information received from Mr. Vivek Patwa, as such, the facts could possibly be not true to her personal knowledge. As such the affidavits are no affidavits in the eye of law, and are simply required to be discarded. Mr. Joshi, on the other hand submitted, that it is only an attempt to overreach appellate forum. It was then contended that the applicant has not given details of dates of his filing application for certified copy of the order, or about his having received the copy of the order. Then, referring to para-2 of the affidavit, it was contended that 12 the verification is proper. It was maintained that the applicant can always make submissions, that are being made before this Court, before the appellate forum. It was also submitted that since the matter is already pending before the Division Bench, proceeding with this application amounts to contempt of Court, and for this purpose reliance was placed on a judgment of the Hon’ble Supreme Court in A. Haleem Vs. M.S. Tajudeen reported in 1994 Supp (3) SCC-644. Since the argument was not clear, it was pointed out to Mr. Joshi, that he should clarify as to what he means in this submission, i.e. whether it would be amounting to contempt on the part of the applicant, or on the part of the Court, and after hesitating a lot, he submitted, that contempt will be committed by this Court. I then straightway advised him to initiate appropriate proceeding for contempt, to which he submitted, he does not propose to initiate any such contempt. Then, regarding Dy. Registrar’s report it was submitted, that there is no basis for this report, it is beyond the point referred, rather it is not a report on the point referred. I have considered the submissions, and have gone through the papers, and the judgments. At the outset, so far A. Haleem’s case is concerned, the matter, that was pending before the Hon’ble Supreme Court, related to selection of trustees to Madrasathul Salalhi Fir Adrabail Kilhai, a trust, which trust was founded in the year 1980, and after the death of the founders, dispute arose, and a scheme was framed by the 13 Court, and the administration of trust was carried on in accordance with the Scheme Decree modified from time to time. For the administration of the trust six hereditary trustees were required to be selected from three main branches of the founders, two from each branch, besides non hereditary trustees to be selected by the District Judge, and in all there were to be nine trustees. The correctness of the selection ultimately reached the Hon’ble Supreme Court, and by the order dt. 18.9.1991 it was directed, that the then trustees could continue upto 31.5.1992. Thereafter a new set of trustees was to be appointed by proper advertisement in the newspapers inviting applications, and if any objection was made to any one of the trustees, the High Court was directed to look into the same. Pursuant to that order of the Hon’ble Supreme Court the learned District Judge called the application, and by his order dt. 25.9.1992 he selected respondents no. 1 to 9. A revision was preferred challenging that selection, which was dismissed by the High Court. Challenging that, special leave petition was filed. Therein, on 16.8.1993, order was passed by the Hon’ble Supreme Court, noticing that vide order dt. 15.4.1993 the Hon’ble Supreme Court reconstituted the Board of Trustees pending disposal of the special leave petition, nominating certain persons, and keeping certain persons out, meaning thereby that the entire constitution of Board was seized of, and pending decision of the Hon’ble Supreme Court, and no other court had jurisdiction or business to interfere with the cause of the matter pending before the Hon’ble Supreme Court, inspite of that clear position respondent no. 5 moved application before the learned District Judge, which was entertained for removal of one of the trustees nominated by the Hon’ble Supreme Court, and the District Judge did not reflect any thought 14 on the propriety of entertaining the application, and of issuing notice on the application. In such circumstances, it was noticed, that the conduct of respondent no. 5 in moving the application amounts to an attempt to directly interfering with the proceeding by the Hon’ble Supreme Court, besides being wholly improper. It was observed that this kind of litigation to