# Sanjay Singh v. Civil Judge J.D. Kadipur Sultanpur & Anr

- **Citation:** (2020) 9 ILRA 292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-18
- **Case number:** Misc Single No. 4053 of 2018
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-singh-v-civil-judge-j-d-kadipur-sultanpur-anr-45937
- **Pages:** 4

## Headnote

amending order and some time limit be
fixed to civil Judge to decide the suit-no
amendment
application
touching
the
merit is maintainable.

Writ Petition dismissed. (E-9)

Cases referred: -

1.Bharat
Amratlal
Kothari
Vs
Dosukhan
Samadkhan Sindhi, (2010) 1 SCC 234

## Text

292 INDIAN LAW REPORTS ALLAHABAD SERIES
made by the petitioner in paragraph 22 of
the writ petition that he was not aware of
the said order and he came to know about it
only in February, 2012 is not only incorrect
but is also palpably false. There is, thus, no
satisfactory explanation for the inordinate
delay in filing the writ petition.

16. The writ petition is, accordingly,
dismissed on the ground of delay and laches.
----------
(2020)09ILR A292
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2020

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc Single No. 4053 of 2018

Sanjay Singh ...Petitioner
Versus
Civil Judge J.D. Kadipur Sultanpur & Anr.
 ...Respondents

Counsel for the Petitioner:
Sunil Kumar Singh

Counsel for the Respondents:

Amendment
Application-filed
for
amending order and some time limit be
fixed to civil Judge to decide the suit-no
amendment
application
touching
the
merit is maintainable.

Writ Petition dismissed. (E-9)

Cases referred: -

1.Bharat
Amratlal
Kothari
Vs
Dosukhan
Samadkhan Sindhi, (2010) 1 SCC 234

2. State of Punjab Vs Darshan Singh, (2004) 1
SCC 328

3. Bijay Kumar Saraogi Vs St. of Jharkhand,
(2005) 7 SCC 748
4.State of Haryana & ors. Vs M.P. Mohla, (2007)
1 SCC 457

5. Ram Chandra Singh Vs Savitri Devi & ors.
(2004) 12 SCC 713

6.Ram Jethmalani & ors. Vs U.O.I. & ors.(2011)
9 SCC 751

7.Delhi Administration Vs Gurdip Singh Urban &
ors. (2000) 7 SCC 296

(Delivered by Hon'ble Rakesh Srivastava, J.)

(In Re:- C.M. Application No. 57454 of 2019)

1. Heard Sri Sunil Kumar Singh,
learned counsel for the petitioner.

2. This is an application by the
petitioner-applicant for amendment of the
judgment and order dated 12.02.2018
passed by this Court in the above
mentioned writ petition.

3. It appears that the petitioner had
filed a Regular Suit No. 85 of 2007 for
permanent injunction against the private
respondent before the Court of Civil Judge
(Junior
Division),
Kadipur,
District
Sultanpur.

4. On 31.10.2018, the petitioner had
filed the above mentioned writ petition
praying inter alia the following prayer:-

"Wherefore,
it
is
most
respectfully prayed that this Hon'ble Court
may kindly be pleased to direct/command
the opposite party no. 1 to decide the Suit
No. 85 of 2007 in case of Prahlad Singh
Vs. Land Management Committee and
others which is still pending since very
long time before the opposite party no. 1
within a stipulated time as contemplated in
Annexure
No.
1
to
this
petition."
9 All. Sanjay Singh Vs. Civil Judge, J.D. Kadipur Sultanpur & Anr.
293
 (emphasis supplied)

5. On 12.02.2018, after hearing the
counsel for the petitioner the writ petition
was disposed of by this Court with a
direction to the Court concerned to dispose
of the said suit expeditiously. The order
dated 12.02.2018 is extracted below:-

"Heard learned counsel for the
petitioner and perused the record.

This writ petition has been filed
by the petitioner for a direction to the
opposite party No.1 Civil Judge (Junior
Division), Kadipur, District Sultanpur for
expeditious disposal of Suit No.85 of 2007.

Without entering into the merits
of the case, the writ petition is finally
disposed of with direction to the Civil
Judge (Junior Division) Kadipur, District
Sultanpur to decide the Suit No.85 of 2007
(Prahlad Singh vs. Land Management
Committee and others) as expeditious as
possible in accordance with law, if there is
no legal impediment."

(emphasis supplied)

6. The record reveals that the
petitioner again approached this Court by
filing Writ Petition No. 10111 (M/S) of
2019, Sanjay Singh Vs. Civil Judge (J.D.),
Kadipur, Sultanpur & Ors. praying for a
direction to the Civil Judge to dispose of
the said suit within a certain time frame.
After arguing at some length the counsel
for the petitioner requested that the said
writ petition be dismissed as withdrawn
with with liberty to the petitioner to
approach the appropriate forum. This Court
acceded to the request made and passed the
following order:

"Heard learned counsel for the
petitioner.

After
making
submission
at
length, learned counsel for the petitioner
requested that this writ petition may be
dismissed as withdrawn with liberty to
approach the appropriate forum.

Prayer is allowed.

Accordingly, the writ petition is
dismissed as withdrawn with liberty to
approach appropriate forum."
 (emphasis supplied)

7. It is, thereafter, that the petitioner
has moved the present application for
amendment praying that the order dated
12.02.2018 be amended and some time
limit be fixed for the Civil Judge to decide
the suit mentioned above.

8. The learned counsel for the
petitioner has submitted that the order
dated 12.02.2018 was served upon the
Court concerned on 26.02.2018 but despite
that till date no progress has been made in
the said suit and only general dates are
being fixed. In the circumstances, the
counsel submits that the order dated
12.02.2018 be amended and some time
limit be prescribed.

9. The application for amendment
moved by the petitioner-applicant
is
absolutely misconceived and is an abuse of
the process of the Court and is liable to be
dismissed.

10. It is now well settled that an
application
for
clarification
or
modification/amendment
touching
the
merit of the matter is not maintainable. If
there is an error apparent on the face of the
record, an application for review would be
maintainable
but
an
application
for
clarification
and/or
modification/amendment
cannot
be
entertained.
294 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Though the provisions of the
Code of Civil Procedure are not applicable
to the proceedings under Article 226 of the
Constitution, the general principles made in
the Code will apply even to writ petitions.
(see Bharat Amratlal Kothari v. Dosukhan
Samadkhan Sindhi, (2010) 1 SCC 234).

12. Section 152 of the Code
postulates
correction
of
clerical
or
arithmetical
mistakes
or
errors
in
judgments, decrees or orders. In State of
Punjab v. Darshan Singh, (2004) 1 SCC
328 the Apex Court has held as under:

"12. Section 152 provides for
correction of clerical or
arithmetical
mistakes in judgments, decrees or orders or
errors arising therein from any accidental
slip or omission. The exercise of this power
contemplates the correction of mistakes by
the court of its ministerial actions and does
not
contemplate
passing
of
effective
judicial orders after the judgment, decree
or order. The settled position of law is that
after the passing of the judgment, decree or
order, the same becomes final subject to
any further avenues of remedies provided
in respect of the same and the very court or
the tribunal cannot and, on mere change of
view, is not entitled to vary the terms of the
judgments, decrees and orders earlier
passed except by means of review, if
statutorily provided specifically therefor
and subject to the conditions or limitations
provided therein. The powers under Section
152 of the Code are neither to be equated
with the power of review nor can be said to
be akin to review or even said to clothe the
court concerned under the guise of
invoking after the result of the judgment
earlier rendered, in its entirety or any
portion or part of it. The corrections
contemplated
are
of
correcting
only
accidental omissions or mistakes and not
all omissions and mistakes which might
have been committed by the court while
passing the judgment, decree or order. The
omission sought to be corrected which goes
to the merits of the case is beyond the scope
of Section 152 as if it is looking into it for
the first time, for which the proper remedy
for the aggrieved party, if at all, is to file
an appeal or revision before the higher
forum or review application before the very
forum, subject to the limitations in respect
of such review. It implies that the section
cannot be pressed into service to correct an
omission which is intentional, however
erroneous that may be. It has been noticed
that the courts below have been liberally
construing and applying the provisions of
Sections 151 and 152 of the Code even
after passing of effective orders in the lis
pending before them. No court can, under
the cover of the aforesaid sections, modify,
alter or add to the terms of its original
judgment, decree or order. Similar view
was expressed by this Court in Dwaraka
Das v. State of M.P. and Jayalakshmi
Coelho v. Oswald Joseph Coelho."

(emphasis supplied)

13. In Bijay Kumar Saraogi v. State of
Jharkhand, (2005) 7 SCC 748, the Apex
Court reiterated what was said in the case
of Darshan Singh in the following words:

"3. We find no reason to interfere
with the order of the High Court because a
mere perusal of Section 152 makes it clear
that Section 152 CPC can be invoked for
the limited purpose of correcting clerical
errors or arithmetical mistakes in the
judgment. The section cannot be invoked
for claiming a substantive relief which was
not granted under the decree, or as a
pretext to get the order which has attained
finality reviewed. If any authority is
9 All. M/S Ansal Prop. & Infrastructure Ltd. Vs. U.O.I. & Ors.
295
required for this proposition, one may refer
to the decision of this Court in State of
Punjab v. Darshan Singh."
 (emphasis supplied)

14. There is no dearth of cases
wherein the Apex Court has held that an
order can be modified only in a review
proceeding. (See: State of Haryana and
Ors. vs. M.P. Mohla, (2007) 1 SCC 457,
Ram Chandra Singh vs. Savitri Devi and
Ors. (2004) 12 SCC 713, Ram Jethmalani
and Ors. vs. Union of India and Ors.(2011)
9 SCC 751 and Delhi Administration vs.
Gurdip Singh Urban and Ors. (2000) 7
SCC 296)

15. The writ petition filed by the
petitioner for disposal of his suit within a
certain time frame was disposed of by this
Court with a direction to the Court
concerned to dispose of the said suit
expeditiously. The petitioner thereafter
filed a second writ petition with the same
prayer which was withdrawn with liberty to
approach the appropriate forum. Instead of
moving an application before the Civil
Judge (Jr. Div.) for expeditious disposal of
the case in terms of the order passed by this
Court in the second writ petition, the
petitioner has filed the present application
for
amendment
of
the
order
dated
12.02.2020. It is a sheer abuse of the
process of the Court.

16. In view of the settled legal
position the application for amendment is
not
maintainable
and
is
accordingly
dismissed.
----------
(2020)09ILR A295
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2020

BEFORE
THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE MANISH KUMAR, J.

Misc Bench No. 5867 of 2020

M/S Ansal Prop. & Infrastructure Ltd.
 ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Singh

Counsel for the Respondents:
C.S.C., A.S.G., Shobhit Mohan Shukla

Real estate (Regulation and Development)
Act, 2016 - Section 43 (5)-challenge made
to the section-as condition of pre deposit
to be satisfied-for remedy of Appealclaimed to be unconstitutional-Remedy of
Appeal after adjudication of dispute-after
opportunity of hearing to parties-not
unconstitutional.

Held, If compliance of the order of the Real
Estate Authority is not made, powers exist for
imposition
of
penalty.
Thus,
in
such
circumstances, if a condition of pre deposit has
been imposed by the legislature under their
wisdom, it cannot be considered to be
unconstitutional not being unreasonable or
onerous. (para 28)

The object of the Act of 2016 is quite clear and
Section 43 (5) is for the purpose sought to be
achieved. It is to secure the complainant after
adjudication of the matter by Real Estate
Regulatory Authority. Thus, even on the facts of
this case and in reference to the provisions of
the Act of 2016, we find condition of pre deposit
for hearing of the appeal to be neither
unreasonable nor onerous so as to treat remedy
to be illusory. The challenge to the provision
cannot sustain rather for it, the writ petition is
liable to be dismissed. (para 31)

Writ Petition dismissed. (E-9)

Cases referred: -