2001 Supreme(SC) 403

2001(2) Supreme 209
SUPREME COURT OF INDIA
(From Bombay High Court)
D.P. Mohapatra & Brijesh Kumar, JJ.
Jayalakshmi Coelho -Appellant
versus
Oswald Joseph Coelho -Respondent
Civil Appeal No. 3609 of 1998
Decided on 28-2-2001
Counsel for the Parties :
For the Appellant : Ms. Indra Jaisingh, Sr. Advocate, Ms. Vanita Bhargava, (Mrs. Rakhi Ray) Advocate for Ms. Bina Gupta, Advocates.
For the Respondent : A.S. Bhasme and Manoj Kumar, Advocates.

IMPORTANT POINT
The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification.

Headnote:Code of Civil Procedure, 1908-Section 152-Amendment of judgment/decree-Scope of power of Court-Mutual consent divorce petition-Separate memorandum of agreement between parties-Averment in divorce petition that agreement be treated as part and parcel of petition-No prayer made that agreement be made part of decree-Decree dissolving marriage passed-Subsequent petition for modification of decree seeking mandatory injunction directing other party to transfer house property in terms of agreement between them-No prayer made even in application for modification to incorporate terms of agreement-Nothing to indicate that judge of family Court intended to incorporate terms and conditions of agreement in decree-No accidental slip on part of Court indicated nor substantiated-Rectification of decree by granting mandatory injunction was totally misconceived-Orders of lower Courts set aside.

       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 arith metical 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 in 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 mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Court s inherent powers as contained under Section 152 C.P.C. It is to be confined to something initially intended but left out or added against such intention. (Para 14)

       In the instant case in paragraph 8 of the main petition for dissolution of the marriage it has been averred that the agreement arrived at between the parties on 26.7.91 may be treated as part and parcel of the petition while passing the order in the case accordingly. The relief however claimed in paragraph 14 of the petition as quoted earlier indicates that specifically decree for divorce alone was prayed for. There was no prayer to the effect that the agreement may be made a part of the decree or the terms and conditions given in the agreement may be incorporated in the decree. It may be observed that whatever forms part of the petition does not automatically become a part of the decree unless specifically it is so provided. It can only be kept in mind while passing the decree. The same seems to be the averment in paragraph 8 of the petition. Next, coming to the prayer made in the application dated June 30, 1992 for modification of the decree, it is for grant of orders of mandatory injunctions of different nature and in different terms as quoted in the earlier part of this judgment. Again, there is no prayer for incorporating the terms and conditions of the agreement dated 26.7.1991 in the decree. So it is not something which can he said to have been left out accidentally earlier. Paragraph 3 of the application for modification quoted earlier, indicates a different reason for not passing decree relating to other matters. It is not shown to be on the ground of clerical error or accidental slip on the part of the Court. The case of the respondent-husband was that it was due to inadvertence that the terms of the contract were not included in the decree but we find that this was not the case of the respondent-husband in Paragraph 3 of his application for modification of the order, according to which the parties being lay persons without assistance of lawyers had failed to ask for the relief as per the agreement in their prayer clause. Consequently order was silent on those reliefs. No averment of inadvertence by reason of which court may not have included those terms in the decree has been indicated in the application for modification of the decree. It is only an effort to improve upon the case as taken up by the respondent in his application. Paragraph 8 of the petition for dissolution of the marriage only averred that the agreement be treated as part and parcel of the petition while passing the order accordingly. We have already adverted to this aspect of the matter in the earlier part of this judgment. The learned judge therefore arrived at the conclusion that it appeared that the predecessor in office has inadvertently forgotten to incorporate the terms and conditions of the agreement in the decree which was an accidental omission. It is against the case as taken up by the respondent in his application vide its Paragraph 3. The unfounded observation of accidental omission on the part of the Court as made by the Family Court seems to have been taken into account by the learned Single Judge in the writ petition and the learned Division Bench deciding the matter in appeal. There is nothing on the record to indicate that the learned judge of the family court intended to incorporate the terms and conditions of the agreement in the decree. It would have been a different case if it was shown that the Court intended to incorporate those terms but accidentally it slipped or the court forgot to do so. But there is no material on the basis of which intention of the family court can be inferred for incorporating the terms and conditions of the agreement in the decree for divorce on the basis of which it can be said that whatever was intended by the court could not be reflected in the decree. There is not even a whisper about the Memo of Agreement dated 26.7.91 in the narration made in the decree dated 7.3.92. The respondent s prayer for grant of mandatory injunction, as quoted in the earlier part of this judgment, by way of modification of the decree dated 7.3.1992, has been rightly not granted. The application was thus liable to be rejected instead of incorporating the terms and conditions of the agreement, in the decree in respect of which no prayer was made in the application for modification of decree. In the above background and looking to the prayers made by the respondent-husband for granting mandatory injunction in our view the application for rectification of decree was totally misconceived and was only liable to be dismissed rather to incorporate terms and conditions of the agreement dated 26.7.1991 in respect of which no prayer was made in the application for modification nor in the original petition for dissolution of marriage more particularly when no accidental slip on the part of the Court was indicated in the application nor the same being substantiated. (Paras 16, 17, 19, 20 and 22)