{"id":205455,"date":"2009-07-13T00:00:00","date_gmt":"2009-07-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arvind-singh-mewar-vs-smt-yogeshwari-kumari-ors-on-13-july-2009"},"modified":"2018-08-21T10:38:19","modified_gmt":"2018-08-21T05:08:19","slug":"arvind-singh-mewar-vs-smt-yogeshwari-kumari-ors-on-13-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arvind-singh-mewar-vs-smt-yogeshwari-kumari-ors-on-13-july-2009","title":{"rendered":"Arvind Singh Mewar vs Smt.Yogeshwari Kumari & Ors on 13 July, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Arvind Singh Mewar vs Smt.Yogeshwari Kumari & Ors on 13 July, 2009<\/div>\n
                                                              1\n\n  IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR\n  --------------------------------------------------------\n\n\n               S.B. CIVIL MISC. APPLICATION No. 47 of 2008\n\n                                     IN\n\n              S.B. CIVIL MISC. APPLICATION NO. 74\/2005\n\n\n                             ARVIND SINGH MEWAR\n                               V\/S\n                           SMT. YOGESHWARI KUMARI & ORS.\n\n\n    Mr. MS SINGHVI & Mr. ARUN BHANSALI, for the appellant \/\npetitioner\n\n    Mr. JP JOSHI, Mr. MIRNAL KANTI, Mr. S.MUKHERJEE & Mr.\n    PS CHUNDAWAT, for the respondent\n\n\n    Date of Order :                       13th July, 2009\n\n\n                      HON'BLE SHRI N P GUPTA,J.\n\n                             ORDER\n<\/pre>\n
         This application has been filed on behalf of<\/p>\n
respondent no.1 in Civil Misc. Application No. 74\/2005,<\/p>\n
hereafter to be referred to as the applicant, impleading<\/p>\n
the petitioner of Application No. 74\/2005 as respondent<\/p>\n
no.1, and four more respondents being respondents no. 2 to<\/p>\n
5 in the said Application No. 74\/2005. The present<\/p>\n
application has been filed under Section 152 C.P.C. read<\/p>\n
with Section 151 C.P.C. for correction of date in S.B.<\/p>\n
Civil Misc. Application No. 74\/2005 Smt. Yogeshwari Kumari<\/p>\n
Vs. Arvind Singh Mewar & Ors., decided on 5.9.2007.<\/p>\n
         The averments of the application are, that civil<\/p>\n
Misc. Application no. 74\/2005 was filed under Section 301<\/p>\n
and 302 of Indian Succession Act for removal of executor.<\/p>\n
When the application came up before the Court on 17.8.2007<\/p>\n
the matter was adjourned for two weeks, with a direction to<\/p>\n
the parties to produce material on record in support of
\n                                                               2<\/span><\/p>\n
their respective stand. The office fixed 3.9.2007 as the<\/p>\n
date for listing the matter, but then it was not listed on<\/p>\n
3.9.2007, and came up before the Court on 5.9.2007, on<\/p>\n
which date, after hearing submission on behalf of the<\/p>\n
parties, the Court dismissed the Application No. 74\/2005.<\/p>\n
It is then alleged in para-5, that it appears that due to<\/p>\n
accidental slip, in the order passed by this Court on<\/p>\n
5.9.2007, the date of order has been indicated as 3.9.2007<\/p>\n
on page 1 of the order and at page 10 line 6 of the order,<\/p>\n
which factually should have 5.9.2007. Then, in para-6 it is<\/p>\n
pleaded that above accidental slip came to the knowledge of<\/p>\n
the applicant when he was served with the notices of D.B.<\/p>\n
Special Appeal Civil No. 19\/2008 Smt. Yogeshwari Kumari Vs.<\/p>\n
Arvind Singh Mewar, wherein the fact that the matter was<\/p>\n
listed in court on 5.9.2007, and the order was allegedly<\/p>\n
passed by the Court on 3.9.2007, has been made basis for<\/p>\n
challenging the order dated 5.9.2007. Then, in para-7 it is<\/p>\n
pleaded that Civil Misc. Application No. 74\/2005 was listed<\/p>\n
before, heard and decided by the Court on 5.9.2007, in the<\/p>\n
presence of counsel for the parties, and that the matter<\/p>\n
did not appear in the cause list dated 3.9.2007. Thus, it<\/p>\n
was pleaded that it is apparent, that due to accidental<\/p>\n
slip or omission, the date 3.9.2007 has been indicated in<\/p>\n
the order instead of 5.9.2007, the same needs consideration<\/p>\n
of this Court for correction. With this, it is prayed, that<\/p>\n
the date be corrected at both the places to be 5.9.2007 in<\/p>\n
place of 3.9.2007.\n<\/p>\n<\/p>\n
       This petition came up in the Court on 4.9.2008; on<\/p>\n
which date notices were ordered to be issued, returnable<\/p>\n
within three weeks, and were give dasti. Then, on 6.11.2008<\/p>\n
fresh notices were ordered to be issued, and one set of<\/p>\n
notice was directed to be sent by registered post. Then, on
\n                                                               3<\/span><\/p>\n
6.3.2009, when the matter came up, Mr. Singhvi informed<\/p>\n
that to his information as gathered from the computer,<\/p>\n
reply has been filed on behalf of respondent no. 1 on<\/p>\n
11.12.2008. Therefore, the office was directed to locate it<\/p>\n
and place it on record, and at the same time the Dy.<\/p>\n
Registrar (Judicial) was also directed to enquire into the<\/p>\n
matter, and submit a report on the factual aspect of the<\/p>\n
matter, as to how the things, as alleged in the appeal, and<\/p>\n
as alleged in the application have come about. The name of<\/p>\n
the counsel who may be appearing on behalf of any of the<\/p>\n
respondent and\/or, who may have filed reply, should also be<\/p>\n
shown in the cause list, and the matter was directed to be<\/p>\n
listed after four weeks. Then, the matter came up on<\/p>\n
4.5.2009 by which time the report of Dy. Registrar<\/p>\n
(Judicial) was received, and Mr. Joshi prayed for time to<\/p>\n
look into the report, therefore, the matter was adjourned<\/p>\n
to 14.5.2009. This date 14.5.2009 was given because<\/p>\n
otherwise I was sitting in Division Bench, and on 14.5.2009<\/p>\n
other S.B. matters were also fixed to be listed before me.<\/p>\n
Then, on 14.5.2009 Mr. Joshi submitted that he has applied<\/p>\n
for certified copy of the report of Dy. Registrar (Judl.)<\/p>\n
on 4th itself which he has received on 12th only, and<\/p>\n
therefore, prayed for time to make submission on that<\/p>\n
report. Accordingly, the matter was adjourned to 9.7.2009,<\/p>\n
on which date, the matter was heard. On that day appearance<\/p>\n
was put in on behalf of the applicant, and the present<\/p>\n
respondent no. 1 and 4 only.\n<\/p>\n<\/p>\n
        A reply to this petition had been sent by post by<\/p>\n
Shri Vishvaraj Singh, the present non applicant no. 4,<\/p>\n
which appears to have been received by the Registry on<\/p>\n
25.9.2008. In parawise reply, regarding para-1 it was<\/p>\n
denied being part of record, and referring to para-2 of the
\n                                                               4<\/span><\/p>\n
preliminary objection, wherein referred Civil Writ Petition<\/p>\n
No. 74\/2005. Then, paras no. 2 to 5 have been replied as<\/p>\n
answering respondent is not aware of the contents. However,<\/p>\n
regarding para-5 it is pleaded that the matter be<\/p>\n
investigated, as the accidental slip had not occurred just<\/p>\n
once but twice. Then, para-6 has been denied, and it is<\/p>\n
pleaded, that it is misleading to state that the matter of<\/p>\n
incorrect dates is the basis of the appeal. Regarding para-<\/p>\n
7 it was pleaded, that the answering respondent is not<\/p>\n
aware.\n<\/p>\n<\/p>\n
         Then, a reply has been filed on behalf of the<\/p>\n
present respondent no.1 Smt. Yogeshwari Kumari on<\/p>\n
10.12.2008, pleading interalia, that the non applicant<\/p>\n
denies each and every allegation, averment, contention<\/p>\n
and\/or submission made in the present application which is<\/p>\n
contrary to, and\/or inconsistent with what is stated herein<\/p>\n
below, and in the D.B. Civil Special Appeal No. 19\/2007, as<\/p>\n
well as in the records of the case, and unless specifically<\/p>\n
admitted. Then, as preliminary objection, the submissions<\/p>\n
have been made. In para-1 it is pleaded that the non-<\/p>\n
applicant has already challenged the judgment dt. 3.9.2007<\/p>\n
by preferring appeal, in which appeal the main ground is,<\/p>\n
that the order passed by the learned Judge is liable to be<\/p>\n
set aside mainly on the ground, that on 3.9.2007 the matter<\/p>\n
was not listed before the learned Single Judge and,<\/p>\n
therefore, there was no occasion for him to have decided<\/p>\n
the application filed by the appellant under Sections 301<\/p>\n
and 302. The judgment is said to have been pronounced on<\/p>\n
3.9.2007, when the matter was not listed before the learned<\/p>\n
Single Judge. Therefore, the question of the order coming<\/p>\n
into existence on 3.9.2007, does not arise. The order<\/p>\n
passed by the learned Single Judge is liable to be set
\n                                                               5<\/span><\/p>\n
aside, for this reason alone. Then, in para-2 it is pleaded<\/p>\n
that the application is misconceived and misleading, and<\/p>\n
that the applicant is guilty of stating incorrect facts,<\/p>\n
stating half truths, stating facts out of context. Instead<\/p>\n
of filing an objection in the said appeal, the applicant<\/p>\n
has filed present misconceived application. It is pleaded<\/p>\n
that it is not just believable, that the alleged accidental<\/p>\n
slip came to the knowledge of the applicant only when he<\/p>\n
was served with the notice of the said appeal filed by the<\/p>\n
non applicant no.1, wherein the judgment\/order impugned in<\/p>\n
the said appeal having been passed on a date when the<\/p>\n
matter was not listed, has been taken as a ground for<\/p>\n
challenging the judgment. It is pleaded, that the alleged<\/p>\n
accidental slip ought to have, and must have, come to the<\/p>\n
knowledge of the applicant immediately upon getting a copy<\/p>\n
of the said judgment\/order dt. 3.9.2007 or the certified<\/p>\n
copy thereof, rather the application is only a ploy to<\/p>\n
extend the period of limitation for filing the said<\/p>\n
application. Then, in para-3 it is pleaded that an<\/p>\n
application for review has been filed in the garb of the<\/p>\n
said application for correction of date, and has been filed<\/p>\n
for the sole purpose of having a hearing on review<\/p>\n
petition, which is not permissible under the rules of High<\/p>\n
Court, particularly when the judgment\/order has already<\/p>\n
been challenged, and is pending before the Division Bench<\/p>\n
of this Court. Then, in para-4 it is pleaded that the<\/p>\n
discrepancy and\/or the error in the said judgment\/order dt.<\/p>\n
3.9.2007, which is being sought to be corrected by filing<\/p>\n
the said application, is not in the nature of typographical<\/p>\n
error, and as such, if at all such correction can be made,<\/p>\n
it could have been done only upon the filing of an<\/p>\n
application for review, limitation where for has already<\/p>\n
expired. As such, the applicant cannot now be permitted to
\n                                                               6<\/span><\/p>\n
do the same indirectly, what he failed to do directly by<\/p>\n
not filing an application for review. It is also pleaded<\/p>\n
that after passing of the judgment\/order dt. 3.9.2007 this<\/p>\n
Court becomes functus officio for anything other than an<\/p>\n
application for review, as it would tantamount to intrusion<\/p>\n
into the jurisdiction of the Appellate Court, before which<\/p>\n
the said appeal has been filed. With raising these<\/p>\n
preliminary objections parawise reply has also been<\/p>\n
incorporated. In parawise reply paras 1 to 3 were pleaded<\/p>\n
to relating to matter of record requiring no reply.<\/p>\n
Regarding para-4 it was pleaded, that so far as it relates<\/p>\n
to matter of record, it needs no reply. However, it was<\/p>\n
denied that the non applicant no. 1 on 5.9.2007 was heard<\/p>\n
at all. It was specifically purportedly pleaded, that as<\/p>\n
mentioned in the appeal, that on 5.9.2007 Shri Vivek Patwa,<\/p>\n
Advocate appeared on behalf of counsel for the non<\/p>\n
applicant no.1 Mr. J.P. Joshi, and made a request, that the<\/p>\n
matter be adjourned, whereupon the Hon’ble Court made some<\/p>\n
query and informed the advocate appearing on behalf of Mr.<\/p>\n
Joshi, that the order will be passed in the case later on.<\/p>\n
As such it is misleading and incorrect to allege, that the<\/p>\n
non applicant no. 1 was heard on the said date. Contents of<\/p>\n
para-5 were denied, pleading it to be contrary to record of<\/p>\n
the case. Para-6 was denied. It was reiterated what has<\/p>\n
been said in the preliminary objection no. 2, to the effect<\/p>\n
that it is just not believable that the alleged accidental<\/p>\n
slip came to the knowledge of the applicant only when he<\/p>\n
was served with the notice of the appeal, wherein order<\/p>\n
having been passed on the date when the matter was not<\/p>\n
listed has been taken as a ground for challenging the same.<\/p>\n
It was also maintained that the alleged accidental slip<\/p>\n
ought to have and must have come to the knowledge of the<\/p>\n
applicant immediately upon getting a copy of the said
\n                                                               7<\/span><\/p>\n
judgment. As such it was contended that the averments in no<\/p>\n
circumstances can be accepted as reasonable, cogent,<\/p>\n
plausible, and the same is an after thought, and only a<\/p>\n
ploy to extend the period of limitation for filing the said<\/p>\n
application. Then, para-7 was denied. It was maintained<\/p>\n
that the non applicant no. 1 was heard by the Court on<\/p>\n
5.9.2007 in the presence of counsel for the parties, as<\/p>\n
alleged. Then, para-8 was also denied. It was denied that<\/p>\n
it is an accidental slip or omission, and it was pleaded<\/p>\n
that since the order dt. 3.9.2007 has already been appealed<\/p>\n
against and the said appeal is pending, the correction<\/p>\n
sought would tantamount to intrusion into the jurisdiction<\/p>\n
of the Appellate Court.\n<\/p>\n<\/p>\n
         Affidavit in support of this reply has been filed<\/p>\n
pleading “the statements of facts in the accompanying reply<\/p>\n
are true to my knowledge and\/or are true to the records of<\/p>\n
the case. Rest of the statements in the accompanying reply<\/p>\n
are in the nature of submissions to this Hon’ble Court”.<\/p>\n
         The Dy. Registrar (Judicial) in his report has<\/p>\n
reported, that the matter was listed before the Court on<\/p>\n
17.8.2007, and on that date, the matter was adjourned for<\/p>\n
two weeks, with a direction to the parties to produce<\/p>\n
material on record in support of their respective stand.<\/p>\n
Thereafter, the office fixed the next date as 3.9.2007, for<\/p>\n
listing the matter in the Court for passing order. A<\/p>\n
perusal of cause list dated 3.9.2007 reveals that the<\/p>\n
matter was not listed before the Court on 3.9.2007, and it<\/p>\n
was listed on 5.9.2007, at S.No. 3 in the cause list. It is<\/p>\n
also reported, that it is evident from the record of the<\/p>\n
result of the cause list, that the matter was dismissed on<\/p>\n
5.9.2007. Then, he has perused the stenographer’s diary
\n                                                                8<\/span><\/p>\n
maintained by private secretary, which revealed, that the<\/p>\n
order was not dictated on 3.9.2007, and the computer print<\/p>\n
of the file history from the properties in the computer was<\/p>\n
taken, which showed that it was created in the computer by<\/p>\n
the concerned stenographer on 11.9.2007, and was modified<\/p>\n
on 12.9.2007. He has produced the necessary material on the<\/p>\n
basis of which he submitted the report.\n<\/p>\n<\/p>\n
        To this report objections have been filed on behalf<\/p>\n
of the present non applicant no. 1. First preliminary<\/p>\n
objection raised is, that the non applicant questions the<\/p>\n
opinion given by the Deputy Registrar on 1.5.2009, and also<\/p>\n
disputes the contents thereof. It is pleaded that the<\/p>\n
report is contrary to and\/or inconsistent with the records<\/p>\n
of the case, inasmuch as, the main issue of dispute has not<\/p>\n
been addressed at all. It is pleaded that the contents of<\/p>\n
the report are contrary to and\/or inconsistent with not<\/p>\n
only the records of the case but also to the statements of<\/p>\n
the non applicant no.1, which has not been denied anywhere,<\/p>\n
that in fact no hearing took place on the date which was<\/p>\n
scheduled to be fixed, either on 3rd or on 5th of September,<\/p>\n
2007. It was reiterated that the judgment\/order has already<\/p>\n
been challenged by way of appeal by raising the grounds<\/p>\n
mentioned above. The second preliminary objection raised is<\/p>\n
that the Dy. Registrar’s report is tailored not only to<\/p>\n
support and second the applicant’s contention, as would<\/p>\n
appear from the application, rather the Dy. Registrar has<\/p>\n
traveled beyond the ambit and scope of report sought by the<\/p>\n
Court, by giving a conclusive opinion, which includes<\/p>\n
persuasive elements and recommendations motivating<\/p>\n
conclusions indicating possible future actions that this<\/p>\n
Court may take. The report is also contended to have gone<\/p>\n
beyond its purpose of reporting to\/informing this Court
\n                                                               9<\/span><\/p>\n
with regard to the specific query. Third objection raised<\/p>\n
is that on 5.9.2007 the non applicant no. 1 was not heard<\/p>\n
by this Court, inasmuch as Mr. Vivek Patwa learned Advocate<\/p>\n
appeared and sought an adjournment\/accommodation on behalf<\/p>\n
of Mr. J.P. Joshi, who was to appear and argue the case on<\/p>\n
behalf of the non applicant, whereupon this Court made some<\/p>\n
query and observed that some order would be passed later<\/p>\n
on. As such the contention of the applicant about the<\/p>\n
matter being heard on 5.9.2009 is incorrect, and is not<\/p>\n
borne out from the records\/proceedings of the case. The<\/p>\n
order impugned in D.B. Civil Special Appeal No. 19\/2007<\/p>\n
pending before the Division Bench is erroneous in the fact<\/p>\n
and circumstances of the case, to the effect that since no<\/p>\n
hearing took place on 5.9.2009, this Court in no<\/p>\n
circumstance could have recorded the submissions of either<\/p>\n
of the parties, as has been recorded at page 10 of the said<\/p>\n
order, sought to be corrected. Then, parawise comments have<\/p>\n
also been made, and therein para-1 has been contended to be<\/p>\n
requiring no comment. Then, regarding para-2 it was pleaded<\/p>\n
to be requiring no comment. However, it was specifically<\/p>\n
denied, that the case was dismissed on 5.9.2007 which is<\/p>\n
contrary to record. Then, para-3 was also pleaded to be<\/p>\n
requiring no comment. Then, regarding para-4 it was pleaded<\/p>\n
that the report relates to matters of record, and as such<\/p>\n
need no comment. However, contents of para-4 of the report,<\/p>\n
in any case would remain same whether the matter was<\/p>\n
decided on 3.9.2009 and\/or 5.9.2009. Then, regarding para-5<\/p>\n
of the report it was reiterated that what has been stated<\/p>\n
herein above in the preliminary objections to the effect<\/p>\n
that Deputy Registrar’s report is tailored not only to<\/p>\n
support and second the applicant’s contention as would<\/p>\n
appear from the application for correction of the date, but<\/p>\n
has also traveled beyond the ambit and scope of a report
\n                                                              10<\/span><\/p>\n
sought by this Court by giving a conclusive opinion which<\/p>\n
includes persuasive elements and recommendations,<\/p>\n
motivating conclusions indicating possible future actions<\/p>\n
that this Court may take. Interalia with this it is pleaded<\/p>\n
that the report deserves to be rejected by this Court, and<\/p>\n
the present petition requires to be dismissed.<\/p>\n
       These objections are also supported by the affidavit<\/p>\n
of non applicant no.1 verifying the facts, to the effect<\/p>\n
that “the statements of facts in the accompanying objection<\/p>\n
petition are true to my knowledge and\/or are true to the<\/p>\n
records of the case. Rest of the statements in the<\/p>\n
accompanying objection petition are in the nature of<\/p>\n
submissions to this Hon’ble Court”.\n<\/p>\n<\/p>\n
         Arguing the application, it was contended by the<\/p>\n
learned counsel for the applicant, that at page-1 and in<\/p>\n
line 6 of page-10 the date “3.9.2007” has come to be<\/p>\n
mentioned only as accidental slip, or omission while it<\/p>\n
should have been “5.9.2007” as neither the case was listed<\/p>\n
on 3.9.2007, nor was it heard, and was actually heard on<\/p>\n
5.9.2007. It was contended that the question as to whether<\/p>\n
the matter was heard or not in the matter sought to be<\/p>\n
contended by the non applicant is a question which is<\/p>\n
already subject matter of appeal, and need not be gone into<\/p>\n
in this application. Then, it was submitted that an over<\/p>\n
all reading of the pleading, even comprised in the reply,<\/p>\n
there is no dispute, that the order has been passed on<\/p>\n
5.9.2007, and simply because by accidental slip the date<\/p>\n
has been mentioned as 3.9.2007, on which date even<\/p>\n
according to the non applicants neither the matter was<\/p>\n
listed, nor was heard, the order could possibly not be<\/p>\n
passed on 3.9.2007. Then, it was submitted, that it is not
\n                                                              11<\/span><\/p>\n
a case of review, rather it being only an accidental slip,<\/p>\n
or omission, which is required to be brought to the notice<\/p>\n
of this Court only, and for that purpose relied upon four<\/p>\n
judgments, being Bhagwati Prasad Vs. Delhi State Mineral<\/p>\n
Development Corporation reported in (1990) 1 SCC-361 (Para-<\/p>\n
5), Central Bank of India Vs. Brajlal Kapurchand Gandhi<\/p>\n
reported in AIR 2003 SC-3028 (Para-11 & 12), R.S.E.B. Vs.<\/p>\n
Narmda Industries reported in 1992(3) WLC (Raj.)-458 (Para-<\/p>\n
17), and Ram Kanwar Vs. Kewal Singh reported in 2006(1) WLC<\/p>\n
(SC)-92 (Para-2). It was then submitted, that as a matter<\/p>\n
of fact on 5.9.2007 Mr. Vivek Patwa, appeared on behalf of<\/p>\n
Mr. Joshi, he argued the matter for about half an hour, and<\/p>\n
after hearing both the sides, Court pronounced the order of<\/p>\n
dismissal, and observed, that the order will be dictated in<\/p>\n
the chambers, and it is precisely for this reason, that now<\/p>\n
Mr. Vivek Patwa is not coming before this Court, nor has he<\/p>\n
dared to file affidavit in support of the plea taken in the<\/p>\n
reply, lest that might have amounted to contempt of Court<\/p>\n
on his part. Then, commenting on affidavits of non<\/p>\n
applicant no. 1, it is contended that those affidavits are<\/p>\n
no affidavits in the eye of law, as she was neither present<\/p>\n
in the Court, nor had she deposed the facts\/information<\/p>\n
received from Mr. Vivek Patwa, as such, the facts could<\/p>\n
possibly be not true to her personal knowledge. As such the<\/p>\n
affidavits are no affidavits in the eye of law, and are<\/p>\n
simply required to be discarded.\n<\/p>\n<\/p>\n
         Mr. Joshi, on the other hand submitted, that it is<\/p>\n
only an attempt to overreach appellate forum. It was then<\/p>\n
contended that the applicant has not given details of dates<\/p>\n
of his filing application for certified copy of the order,<\/p>\n
or about his having received the copy of the order. Then,<\/p>\n
referring to para-2 of the affidavit, it was contended that
\n                                                              12<\/span><\/p>\n
the verification is proper. It was maintained that the<\/p>\n
applicant can always make submissions, that are being made<\/p>\n
before this Court, before the appellate forum. It was also<\/p>\n
submitted that since the matter is already pending before<\/p>\n
the Division Bench, proceeding with this application<\/p>\n
amounts to contempt of Court, and for this purpose reliance<\/p>\n
was placed on a judgment of the Hon’ble Supreme Court in A.<\/p>\n
Haleem Vs. M.S. Tajudeen reported in 1994 Supp (3) SCC-644.<\/p>\n
         Since the argument was not clear, it was pointed<\/p>\n
out to Mr. Joshi, that he should clarify as to what he<\/p>\n
means in this submission, i.e. whether it would be<\/p>\n
amounting to contempt on the part of the applicant, or on<\/p>\n
the part of the Court, and after hesitating a lot, he<\/p>\n
submitted, that contempt will be committed by this Court. I<\/p>\n
then straightway advised him to initiate appropriate<\/p>\n
proceeding for contempt, to which he submitted, he does not<\/p>\n
propose to initiate any such contempt.\n<\/p>\n<\/p>\n
       Then, regarding Dy. Registrar’s report it was<\/p>\n
submitted, that there is no basis for this report, it is<\/p>\n
beyond the point referred, rather it is not a report on the<\/p>\n
point referred.\n<\/p>\n<\/p>\n
         I have considered the submissions, and have gone<\/p>\n
through the papers, and the judgments.\n<\/p>\n<\/p>\n
         At the outset, so far A. Haleem’s case is<\/p>\n
concerned, the matter, that was pending before the Hon’ble<\/p>\n
Supreme Court, related to selection of trustees to<\/p>\n
Madrasathul Salalhi Fir Adrabail Kilhai, a trust, which<\/p>\n
trust was founded in the year 1980, and after the death of<\/p>\n
the founders, dispute arose, and a scheme was framed by the
\n                                                              13<\/span><\/p>\n
Court, and the administration of trust was carried on in<\/p>\n
accordance with the Scheme Decree modified from time to<\/p>\n
time. For the administration of the trust six hereditary<\/p>\n
trustees were required to be selected from three main<\/p>\n
branches of the founders, two from each branch, besides non<\/p>\n
hereditary trustees to be selected by the District Judge,<\/p>\n
and in all there were to be nine trustees. The correctness<\/p>\n
of the selection ultimately reached the Hon’ble Supreme<\/p>\n
Court, and by the order dt. 18.9.1991 it was directed, that<\/p>\n
the then trustees could continue upto 31.5.1992. Thereafter<\/p>\n
a new set of trustees was to be appointed by proper<\/p>\n
advertisement in the newspapers inviting applications, and<\/p>\n
if any objection was made to any one of the trustees, the<\/p>\n
High Court was directed to look into the same. Pursuant to<\/p>\n
that order of the Hon’ble Supreme Court the learned<\/p>\n
District Judge called the application, and by his order dt.<\/p>\n
25.9.1992 he selected respondents no. 1 to 9. A revision<\/p>\n
was preferred challenging that selection, which was<\/p>\n
dismissed by the High Court. Challenging that, special<\/p>\n
leave petition was filed. Therein, on 16.8.1993, order was<\/p>\n
passed by the Hon’ble Supreme Court, noticing that vide<\/p>\n
order dt. 15.4.1993 the Hon’ble Supreme Court reconstituted<\/p>\n
the Board of Trustees pending disposal of the special leave<\/p>\n
petition, nominating certain persons, and keeping certain<\/p>\n
persons out, meaning thereby that the entire constitution<\/p>\n
of Board was seized of, and pending decision of the Hon’ble<\/p>\n
Supreme Court, and no other court had jurisdiction or<\/p>\n
business to interfere with the cause of the matter pending<\/p>\n
before the Hon’ble Supreme Court, inspite of that clear<\/p>\n
position respondent no. 5 moved application before the<\/p>\n
learned District Judge, which was entertained for removal<\/p>\n
of one of the trustees nominated by the Hon’ble Supreme<\/p>\n
Court, and the District Judge did not reflect any thought
\n                                                              14<\/span><\/p>\n
on the propriety of entertaining the application, and of<\/p>\n
issuing notice on the application. In such circumstances,<\/p>\n
it was noticed, that the conduct of respondent no. 5 in<\/p>\n
moving the application amounts to an attempt to directly<\/p>\n
interfering with the proceeding by the Hon’ble Supreme<\/p>\n
Court, besides being wholly improper. It was observed that<\/p>\n
this kind of litigation to fire the proceedings of this<\/p>\n
Court, and embarrass the Chairman nominated by this Court,<\/p>\n
should be put down, and notices were issued, as to why he<\/p>\n
should not be punished for contempt. With this explanation<\/p>\n
was called from the District Judge also, and it was<\/p>\n
observed, that whether any further action should be<\/p>\n
initiated against the District Judge would be considered<\/p>\n
after consideration of his explanation. The explanation was<\/p>\n
received. Then, the matter came up, and it was observed,<\/p>\n
that the District Judge has been callous in entertaining<\/p>\n
the application, in spite of the knowledge, that this Court<\/p>\n
was seized of the matter, and secondly there is remiss on<\/p>\n
his part in directing notice in a cavalier fashion, even<\/p>\n
without looking at the array of the parties, or going<\/p>\n
through the contents of the application. However, apology<\/p>\n
tendered by the learned District Judge was accepted, as the<\/p>\n
application had been dismissed by the learned District<\/p>\n
Judge on 17.8.1993, and the proceedings were dropped. In my<\/p>\n
view, this case, apart from fact, that it has no bearing on<\/p>\n
the controversy involved in the present case, rather has<\/p>\n
been cited, as an attempt on the part of the learned<\/p>\n
counsel for the non applicant Mr. J.P. Joshi to brow beat<\/p>\n
this Court, more so when he dared to submit that it amounts<\/p>\n
to contempt on my part. Admittedly there is no order<\/p>\n
whatever by the Division Bench, contrary to which any<\/p>\n
application might have been filed, much less entertained.
\n                                                              15<\/span><\/p>\n
         In the totality of circumstances, I stand advised<\/p>\n
to keep restrain on myself, and resist from taking any<\/p>\n
stern action against Mr. Joshi, for making this type of<\/p>\n
submissions.\n<\/p>\n<\/p>\n
         Coming to the merits of the application, all said<\/p>\n
and done, even invoking my personal memory, the order was<\/p>\n
not dictated on 3.9.2007. As the material has come on<\/p>\n
record, even in the present pleading of the parties, that<\/p>\n
the matter was listed on 5.9.2007 the matter was called,<\/p>\n
and according to Mr. Singhvi the matter was heard, and on<\/p>\n
behalf of Mr. Joshi Mr. Vivek Patwa made submissions, and<\/p>\n
after hearing both the sides, Court pronounced the order of<\/p>\n
dismissal, and observed, that the order will be dictated in<\/p>\n
the chambers, while according to Mr. Joshi, some query was<\/p>\n
put by the Court to Mr. Patwa, and then he was informed<\/p>\n
that the order will be passed in the case later on (as<\/p>\n
pleaded while replying para-4 of the application).   Thus,<\/p>\n
admittedly the matter was listed on 5.9.2007, and was heard<\/p>\n
on 5.9.2007. May be that Mr. Joshi did not appear on<\/p>\n
5.9.2007, and instead Mr. Patwa appeared, who has not dared<\/p>\n
to come forward to file any affidavit, which could be<\/p>\n
affidavit on his personal knowledge, as to what transpired<\/p>\n
in the Court on 5.9.2007, as to what was detail of the<\/p>\n
query put in the Court, and in what background the query<\/p>\n
was put, and what was the answer of the query put by the<\/p>\n
Court, and what remained to be done in the matter after the<\/p>\n
Court receiving reply of that query from Mr. Patwa, and<\/p>\n
then what was pronounced by the court. May be, that the non<\/p>\n
applicant no. 1 may be feeling, that sufficient opportunity<\/p>\n
of hearing was not given, on the parameters, as assumed by<\/p>\n
him, but then, opposing this application is not forum for<\/p>\n
ventilating that grievance.\n<\/p>\n
                                                               16<\/span><\/p>\n
          I may also observe at this stage, that I get from<\/p>\n
my personal notes as I maintain, that as a matter of fact,<\/p>\n
the judgment in this case was dictated by me to my private<\/p>\n
secretary on 9.9.2007, at my residence, in the morning<\/p>\n
hours, which was transcribed by him, and after making<\/p>\n
necessary corrections of typographical mistakes in the<\/p>\n
print, a fresh print was taken out, and that was signed. Of<\/p>\n
course, I could not notice, that the date in the judgment<\/p>\n
at the two places, being at page no. 1 and at page no. 10<\/p>\n
in the 6th line, has been incorrectly mentioned to be 3rd<\/p>\n
September, 2007, while it should have been 5th September,<\/p>\n
2007. Obviously, when admittedly on 3rd September, 2007     the<\/p>\n
matter was not listed nor was heard, it could not be as<\/p>\n
appeared at page no. 10 of the order, that on 3rd September,<\/p>\n
2007 the counsel for the respondent invited my attention to<\/p>\n
Annexure R 1\/9, and made submissions, as contained in that<\/p>\n
para. This all actually happened on 5.9.2007, and this was<\/p>\n
the query put, and this was the answer given, this was the<\/p>\n
conclusion as I could arrive at, and after receiving the<\/p>\n
answer from Mr. Patwa I had pronounced the dismissal of the<\/p>\n
application, and gave out that the detailed order would be<\/p>\n
dictated in chambers, which ofcourse could be dictated on<\/p>\n
9th September 2007 only. Correctness of my conclusions is of<\/p>\n
course subject matter of decision by Division Bench,<\/p>\n
therefore, regarding correctness of conclusions I am not<\/p>\n
supposed to make any observation.\n<\/p>\n<\/p>\n
        So far present application being the correct forum<\/p>\n
is concerned, the judgments cited by the learned counsel<\/p>\n
for the applicant are complete answer to the objection, and<\/p>\n
in view of these judgments, in my view, the present<\/p>\n
application, is the only appropriate forum. The error
\n                                                              17<\/span><\/p>\n
pointed out is only an accidental slip, or error, plain and<\/p>\n
simple, having no bearing on the merits of the matter, and<\/p>\n
is clearly correctable in an application under Section 152<\/p>\n
C.P.C. May be that a review also could be filed for this<\/p>\n
purpose, but then, it cannot be said, that Section 152<\/p>\n
C.P.C. is not appropriate forum, permissible to be invoked.<\/p>\n
       I do not hesitate in admitting, that one should have<\/p>\n
been more cautious in reading every letter and word of the<\/p>\n
judgment, in which event this error would not have<\/p>\n
occurred. To commit error is human, and the non applicant<\/p>\n
is simply trying to make mountain out of a mole, which too<\/p>\n
does not exist. I may simply refer to page 3 and 4 of the<\/p>\n
objections to the report of Dy. Registrar (Judicial),<\/p>\n
submitted by the non applicant no. 1, and notice, that at<\/p>\n
page 3 in para-3, in the 9th line, it is mentioned, that<\/p>\n
hearing of the Civil Misc. Application no. 74\/2005 took<\/p>\n
place on 5.9.2009 is incorrect. Obviously we are only in<\/p>\n
July, 2009, and September, 2009 is yet to come. Likewise,<\/p>\n
in this very para in the 14th line again the date has been<\/p>\n
mentioned as 5.9.2009. Not only this on page no. 4 in para<\/p>\n
3.4 again, the dates have been mentioned as 3.9.2009 so<\/p>\n
also 5.9.2009, by submitting that the question would remain<\/p>\n
same, whether the matter was decided on 3.9.2009 and\/or<\/p>\n
5.9.2009. Obviously, the case was neither decided on<\/p>\n
3.9.2009, nor 5.9.2009. This I am mentioning only for the<\/p>\n
purpose of showing, that there may be human error in<\/p>\n
mentioning dates or figure. In the judgment it has occurred<\/p>\n
at two places, while in these objections it has occurred at<\/p>\n
four places. Be that as it may.\n<\/p>\n<\/p>\n
         The net result of the aforesaid discussion is that<\/p>\n
the application requires to be allowed, and is accordingly
\n                                                             18<\/span><\/p>\n
allowed. The date appearing at page-1, and in 6th line at<\/p>\n
page-10, as “3.9.2007” is corrected to be read as<\/p>\n
“5.9.2007”.\n<\/p>\n<\/p>\n
                                       ( N P GUPTA ),J.\n<\/p>\n
\n\/Sushil\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Arvind Singh Mewar vs Smt.Yogeshwari Kumari & Ors on 13 July, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-205455","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nArvind Singh Mewar vs Smt.Yogeshwari Kumari & Ors on 13 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arvind-singh-mewar-vs-smt-yogeshwari-kumari-ors-on-13-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arvind Singh Mewar vs Smt.Yogeshwari Kumari & Ors on 13 July, 2009 - 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