TMI Blog2001 (2) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... allowing the application for rectification/modification of the decree dated 7.3.1992. - Appeal (civil) 3609 of 1998 - - - Dated:- 28-2-2001 - Brijesh Kumar, D.P.Mohapatro , JJ. JUDGMENT:- This appeal is preferred against the Judgment and Order dated February 17, 1998 passed by a Division Bench of the Bombay High Court in Letters Patent Appeal No.204 of 1997. The Court of the Principal Judge, Family Court, Bombay, modified its earlier decree which order was challenged by means of a Writ Petition. The Writ Petition was dismissed upholding the order passed by the Principal Judge, Family Court. The impugned order passed by the Division Bench confirmed the order of the learned Single Judge giving cause of grievance to the appellant. Hence, the present appeal. We have heard Ms. Indra Jaising, learned Senior Counsel appearing for the appellant and Shri A.S. Bhasme, learned counsel appearing for the respondent. The appellant Jayalakshmi Coelho and the respondent Oswald Joseph Coelho got married on January 6, 1977 in accordance with the Special Marriage Act, 1954. Out of the said wedlock, a female child Neisha Anne Coelho was born on August 1, 1978. Later, however, differences se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is joint petition under Section 23 of Special Marriage Act, 1954 to get a decree of divorce by mutual consent. 2. Marriage between the petitioners Jayalakshmi and Oswald took place under the provisions of the Special Marriage Act, 1954 at Bombay on 6th January 1977. Thereafter they started dwelling together at Bandra. Their marital life was also fruitful by birth of daughter Neisha Anne Coelho, who was born on 1st August 1978. But it seems that thereafter differences arose between the two and in July 1986, Jayalakshmi left the matrimonial house and went to her parental house. Both the parties decided to take divorce by mutual consent. 3. This petition is coming on 7.3.1992 before Shri S.D. Pandit, Judge, Family Court, Bandra. In presence of Petitioner No.1 and 2, suit is decreed. O R D E R Marriage between the petitioners Jayalakshmi and Oswald is hereby dissolved by decree of divorce by mutual consent. No order as to costs. The respondent, namely, the husband, after passing of the consent decree, as indicated above, moved an application dated June 30, 1992 stating therein that decree by mutual consent was granted to the parties on 7th March, 1992 but the order remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding the hearing and final disposal of this application the Opponent Original Petitioner No.1 be restrained by an order of injunction from disturbing the Petitioner No.2 is peaceful possession of flat No.11, Mon-Bijou Co-op. Hsg. Society Chimbai Road, Bandra, Bombay 400 050. That the pending the hearing and final of disposal of this Application opponent the original Petitioner No.1 be restrained by an order of injunction from selling parting with possession of or creating any third part rights in the said flat No.11, Mon-Bijou Co-op. Hsg. Society, Chimbai Road, Bandra, Bombay 400 050. (d) Interim and ad interi orders in terms of prayer (b) and (c). (e) For cost of this Application. (f) Any other orders that this Honble Court deem fit in the nature and circumstances of the case. The application was opposed and an affidavit in reply was filed by the appellant-wife. According to her, no payment was made by the respondent-husband as per the terms of the agreement and the allegation that any draft for payment was prepared and sent to the appellant was false and incorrect. It is not necessary to mention all other averments made in reply, about ownership etc. of the flat. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit was written in the decree in place of mesne profit. This mistake was found to be clear by looking to the earlier part of the judgment. The mistake was held to be inadvertent. In Bhikhi Lal and others versus Tribeni and others AIR 1965 S.C. 1935 it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in AIR 1966 S.C. 1047 Master Construction Co. (p) Ltd. versus State of Orissa and another it has been observed that arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits are required for such rectification of mistake. In a case repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical 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 not find 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We have also perused the order dated 11.11.1992 passed by the family court allowing the application for modification. It is a lengthy order running into 11 pages at places discussing the merits of the matter as well. Paragraph 5 of the order reads as follows: It was stated by the appellant that though original petition contain the agreement which was part and parcel of the original petition, in which the terms of the modalities were agreed upon by the parties regarding the disposal of the matrimonial flat. Inadvertently those terms were not included in decree and therefore the appellant also prays that a decree be suitably amended. According to the observations of the Court as quoted above 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 respondents 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. We may also make a brief mention of one aspect of the matter without meaning to enter into the merits of that question i.e. in regard to the transfer of the flat, which seems to be the bone of contention, on payment of Rs.1,70,000/- by the husband-respondent to the wife. Much has been said about it in the application for modification and in reply thereof. The payment was to be made within four months of entering into the agreement, that is to say, by 26th November, 1991. On such payment being made the wife was to transfer the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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