R.B. Agarwalla and Company and Another vs Union of India and Others

Pratap Kumar Ray, A.C.J.

Heard the learned Advocates appearing for the parties. Having regard to the contention made in the application u/s 5 of the Limitation Act, we are satisfied that sufficient grounds have been made to condone the delay. Accordingly, the delay is condoned. The application is allowed. The appeal is now in order. The Registry is directed to make necessary endorsement. The stay application is taken up for hearing.

Having regard to the tenor of the order impugned in this appeal, we are of the view that appeal and stay application both could be disposed of today upon hearing the appeal. Appeal is taken up as on day''s list by dispensing with all formalities. The impugned order dated 14th June, 2012 was passed in an application for modification of the judgment and order dated 28th July, 2011 passed in the writ petition No. 631 of 2008. The impugned order reads such:

The Court: The writ application was disposed of by a final judgment and order dated July 28, 2011. If the petitioners were aggrieved by the judgment and order, the remedy of the petitioners lay in filing an appeal therefrom. Even if this Court erred in law, the issues that have been decided finally cannot be reopened by way of an application for modification. This is not an application for review and is not supported by any Memorandum of Review in accordance with the Rules of this Court.

This application is misconceived and is dismissed.

Learned Trial Judge rejected that application on the ground of maintainability. Learned Advocate for the appellant submits that in the application for modification, prayer was made to modify, recall the observation namely. ''It is reiterated that any decision necessarily had to be taken by the Commissioner of Customs, in view of the proviso to Rule 12(1).'' By the judgment and order dated 28th July, 2011 Learned Trial Judge directed the Commissioner of Customs to consider the application/representation of the present appellant and to take a decision within a time limit as fixed by the Court. While passing such order, learned Trial Judge observed that the decision must be on taking notice of the proviso to Rule 12(1) of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995. In the writ application the basic question framed as to whether public notice under challenge issued by Commissioner of Customs (Port) can override Rule 12 of the said Rule. Besides such there was other questions involved in the writ application. Learned Trial Judge adjudicated the matter accordingly. The modification application being G.A. No. 89 of 2012 was filed praying modification of the portion of the order by which Learned Trial Judge directed that while considering the issue, the concerned Commissioner of Customs should take care of the proviso to Rule 12(1) of the aforesaid Rule. Learned Trial Judge did not entertain the application on the ground of maintainability. Against that order, this appeal has been filed by the appellant.

We are of the view that Learned Trial Judge was absolutely justified to hold that the application for modification was not maintainable. From the very nature of the modification application, it appears that the appellant intended to have modification of the direction to look into the proviso to Rule 12(1) of the said Rule which practically is falling within the adjudicatory field of the Court. It is settled legal position of law that once the judgment is delivered by a Court, the Court becomes functus officio and cannot enter into in the adjudicatory field further by entertaining any application for clarification/modification. After delivery of judgment, the Court may entertain any application for review or application for contempt on the ground of breach of the judgment and order. Except the aforesaid two contingencies, the Court when becomes functus officio, cannot entertain any type of other applications. Reliance is placed to the judgments in the cases of Mahanath Ram Dey v. Ganga Dey reported in AIR (1961) SC 884: Anandi Nath Roychowdhury v. Sudhangshu Kumar Bhattacharjee reported in (1987)1 CLJ 370 and Nikhil Kumar Saha Vs. Hedayat Ali Molla and Another, respectively.

Following the aforesaid judgments one of us (Pratap Kumar Ray, A.C.J.) has also delivered judgment in the case of Snehendu Chowdhury and Others Vs. State of West Bengal and Others discussing jurisdictional limit of entertainability of the application for modification/clarification once the Court becomes functus officio. In the aforesaid case, several decisions of the Apex Court were considered and dealt with. In that case it is held that when there is no adjudication of any issue further but merely a technical issue namely, extension of time or time to deposit certain amount etc.. functus officio doctrine will not debar the Court to entertain it. In the instant case, from the submission of the learned advocate for the appellant and from the records it appears that application for modification being G.A. 89 of 2012 was filed before the learned Court below praying for adjudication of the issue further with reference to the direction to adhere proviso to Rule 12(1) by the Commissioner of Customs. In view of such position, we are not finding any illegality in the order under appeal passed by the learned Trial Judge. The appear accordingly has no merit and it stands dismissed.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Subal Baidya, J.

I agree.