Gopal Krishna Saha vs Smt. Sutara Saha

Amitava Lala, J.—By an order dated 4th December, 1997 in the Appeal No. 55 of 1993 arising out of Suit No. 754 of 1990 a Division Bench of this Court disposed of the Suit in terms of the terms of settlement filed therein and the decree was passed accordingly, Parties have acted on the basis of such terms. Terms of settlement are available being the part and parcel of the order of the Division Bench aforesaid under Annexure ''D'' herein.

Clause 21 of the terms provides as follows:

The parties would be at liberty to take such appropriate steps in terms of the order dated Ist December, 1997 in respect of the following criminal cases before the Chief Metropolitan Court being principles:

(1) G.R. Case No. 1448/91 (State v. Madan Mohan Saha)

(Defacto complainant-Subrata Saha)

Ref. Section AC/No.208 dated 24.7.91, 17th M.M. Court.

(2) G.R. Case No. 1344/90 (State v. Protap Kumar Saha) (Defacto complainant-Prosanto Saha).

Ref. Section "A" C/No. 189 dated 28.6.91 11th M.M. Court.

(3) G.R. Case No. 1269/90 (State v. Protap Kumar Saha) (Defacto complainant Prosanto Saha).

Ref. Section "A"C/No.74 dated 13.6.90,8th M.M. Court.

(4) G.R. Case No. 1318/90 (State v. Ruby Rani Saha and Ors.)

Re. Section "A"C/No.l83 dated 23.6.90, 11th M.M. Court pending between the parties. These cases will be deemed as compromised and settled and only formal petition that the disputes were settled before this Hon''ble Court may be filed by de facto complainants before the Criminal Courts in question.

Clause 26 of the terms provides as follows:

Liberty to apply.

It appears from the Annexure ''F'' of the present application that appropriate applications in respect of dropping the proceedings before the criminal Court as above were taken out specifically mentioning in the petitions that the same has been done pursuant to an assurance given before the Division Bench to withdraw or drop the proceedings as above.

However, no steps were taken thereafter to withdraw the same nor the Court proceeded with such applications in the due compliance of the order of the Division Bench of this Court.

As a result of whereof some of the parties and/or their representatives herein took out an application praying inter alia as follows:

(a) Shri Prosanto Saha and Shri Subrota Saha be directed to take all necessary and appropriate steps to comply with their respective submissions recorded by the Hon''ble Court and/or their respective undertakings recorded by this Hon''ble Court and/or the terms of settlement arrived at between the parties and to withdraw and/or have the criminal cases described in paragraph 7 herein dropped against all persons accused therein within seven days of the order to be made herein or within such time as this Hon''ble Court may deem fit and proper;

(b) Appropriate directions be given upon the said Shri Prosanto Saha and Subrota Saha directing each of them to comply with the order dated December 1, 1997 passed by this Hon''ble Court and to comply with the conditions in Clause 21 of the terms of settlement within seven days from the date of the order to be made herein or within such time as this Hon''ble Court may deem fit and proper;

(c) Stay of all proceedings of the criminal cases stated in paragraph 7 herein until disposal of this application;

(d) Shri Prosanto Sha and Shri Subrota Saha be directed to countersign the Provident Fund Form of the Petitioners Protap Saha and Madan Mohan Saha in respect of K.K. Saha and Company Private Limited and to submit statement on account of the said Company to the Provident Fund Commissioner forthwith or within such time as this Hon''ble Court may deem if and proper;

(e) Ad interim orders in terms of prayers above;

(f) All costs and incidental of this application be paid by Shri Prosanto Saha and Subrota Saha;

(g) Such further order/orders and direction or directions be given as this Hon''ble Court may deem fit and proper.

Although so many prayers are made but the real intention of the Petitioners herein is to get an order in terms of prayer in view of the terms and settlement filed before the Appeal Court.

In answer to the question as to how the Appeal Court can intervene and take up the application for the purpose of passing an appropriate order, the same was replied by the Petitioners herein by saying that one of the clauses of the terms of settlement gives ''liberty to apply''. Under such circumstances we do not find any difficulty in entertaining the application.

Mr. Abhrajit Mitra, learned Counsel opposing the said application cited various decisions in support of his case. Firstly, he cited 1993 (3) SCC 500 (Dwarka Das v. State of M.P. and Anr.). He stated that in exercise of power u/s 152 of the Code of Civil Procedure, the correction of mistakes by the Court of its ministerial actions does not contemplate passing of effective judicial orders after the judgment, decree or order. After passing of the same the Court becomes functus officio and thus not entitled to vary the terms of the judgments, decrees or orders earlier passed. The corrections of accidental omissions and mistakes and not all omissions and mistakes which might have been committed by the Court while passing the same can only be corrected by the Court. Even the omission sought to be corrected which goes to the merits of the case is beyond the scope. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. He also cited State of Punjab and others Vs. Krishan Dayal Sharma, to establish that even this application cannot be construed as an application for the purpose of executing the earlier order passed by the Appeal Court in disposing the suit on the basis of the terms of settlement. It is bound by the terms of such decree, it cannot add or alter the decree on its notion of fairness or justice. The right of the decree-holder to obtain relief is determined in accordance with the terms of the decree.

He moulded his argument to a different point and cited another judgment being V.M. Shah Vs. State of Maharashtra and another, and contended that the findings of the Civil Court get precedence over the findings of the criminal Court. However, we fail to understand how the learned Counsel can get assistance from such judgment in support of his contention.

He also cited another judgment being Prakash Chand Sachdeva Vs. The State and another, and contended dropping of proceedings in earlier case could not furnish foundation for dropping the proceedings in the later case. The appropriate criminal authority is empowered to take cognizance in respect of the matter.

We found no justifiable stand on the part of the Respondent in opposing the prayer of the Petitioners for the purpose of dropping the proceedings. On the other hand, the stand taken by the Respondent herein is not only baseless but also reckless.

It is abundantly clear from Clauses 21 of the terms of settlement as above that the criminal cases will be deemed as compromised and settled and only formal petition that the dispute were settled before the Hon''ble Court may be filed by de facto complainants before the criminal Court in question. Therefore, as per the Division Bench of the High Court sitting in appellate jurisdiction arising out of a suit and on the basis of the terms of settlement the compromise in respect of the criminal cases has already been effected. Therefore, the applications before the criminal Court are merely formality. If we go on the basis of the judgment of the Supreme Court as reported in V.M. Shah Vs. State of Maharashtra and another, as cited by the learned Counsel appearing for the Respondent himself we will find that the order or orders of the civil Court has or have binding effect over and in respect of criminal proceedings by applying the principle of precedence. Therefore, withdrawal or no withdrawal of the applications before the criminal Court is a mere formality. As soon as the application in view of the above clause is filed before the criminal Court it will be deemed to have been a due compliance under clause 21 of the terms of the settlement itself. The appropriate Magistrate sitting in the jurisdiction of the criminal cases will only perform the formality but nothing else. This resolves the issue. So far as the ratio of Prakash Chand Sachdeva Vs. The State and another, is concerned, we are of the view that the decision was rendered on totally distinguishable facts from the present case. There the proceedings before the criminal Court were not dropped or automatically dropped on the ground of the pendency of civil case which is totally distinct and different from the present one. So far as the other part being technicality is concerned, neither the ratio of the judgment reported in Dwaraka Das Vs. State of Madhya Pradesh and Another, nor State of Punjab and others Vs. Krishan Dayal Sharma, is applicable in the present case. It is an admitted position that there is no scope of correction of mistakes by the Court after reaching his finality save and except ministerial actions. But such well settled principles cannot be made applicable herein since this Court is inclined to vary or modify and correct any mistake which will go to the merit of the case being beyond the scope of the Section 152 of the Code of Civil Procedure. Similarly, this Court is not functioning as an Executing Court and trying to add or alter at this stage.

The stand of the Respondent suffers a misconception of law. The terms of settlement itself provide the terms under clause 26 being ''liberty to apply''. Both the parties are bound by the terms. Therefore, the stand of the Petitioners herein is not beyond such terms or for incorporation of additional terms. Such terms of ''liberty to apply'' gives a liberty to either of the parties to apply before the appropriate Court of Law in which such terms have been filed for the purpose of the ends of justice and/or to prevent the abuse of the process of Court of Law. Therefore, the action on the part of the Petitioners has given an authority to the Court to go into the terms of settlement and interpret the same in the manner as prescribed. Such action on the part of this Court is neither beyond the scope as prescribed u/s 152 of the CPC nor substantial variation or modification of the order which can go to the root of the matter. The clause 21 of the terms of settlement gives an authority on the basis of the ''liberty to apply'' to interpret the same.

Therefore, we interpret the clause 21 of the terms of the settlement that in view of such clause and by making applications before the appropriate criminal Court, no criminal case seems to have any exist. The appropriate criminal Court is directed to complete the formality, if any, within 7 days from the date of communication of the order. This resolves the issue. However, no order is passed as to costs.

Xerox certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites.

All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above.