TaxTMI 
TaxTMI 
TaxTMI 
2001 (2) TMI 980
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Marriage Act, 1954. Out of the said wedlock, a female child Neisha Anne Coelho was born on August 1, 1978. Later, however, differences seem to have arisen between the appellant and her husband, ultimately, culminating into, the parties agreeing for dissolution of their marriage and they entered into an agreement to that effect on 26th July, 1991. It is stated in the agreement that it had become impossible for them to live any longer as husband and wife so they had decided to dissolve the marriage by mutual consent. They had also settled other issues amicably relating to their properties and custody of the child etc. in terms as indicated in the agreement. According to the agreement, the flat in which the parties had been living as husband and wife, on certain terms and conditions, was to be transferred by the wife in the name of the husband. The other matters relating to jewelry, ornaments, utensils, personal belongings etc. had also been mentioned in the agreement as well as about the fixtures and furniture in the house. It also mentioned about the custody of the daughter. The petition for divorce by mutual consent was filed in the Family Court at Bandra, Bombay on 21.8.1991 un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....June 30, 1992 stating therein that decree by mutual consent was granted to the parties on 7th March, 1992 but the order remained silent on other reliefs which were mentioned in the agreement and in paragraph 8 of the petition relating to transfer of Flat No.11, Mon-Bijou Co- operative Housing Society, 60-D, Chimbai Road, Bombay. According to the agreement dated 26.7.91, the flat was to be transferred in the name of the husband on payment of Rs.1,70,000/- to the wife. But the said prayer was not made for the reason as indicated below in paragraph 3 of the petition for modification of decree:- I say that though all these averments and facts were put on record, in the petition, both the Petitioners being lay persons, and appearing in this Honble Court without the assistance of any lawyer, failed to ask for relief, as per the said agreement in their prayer clauses. Consequently the Order passed by this Honble Court remained silent on those reliefs. It has not been said that the court wanted to or intended to pass order about transfer of flat but it was not so ordered due to any clerical error or accidental slip. Thereafter, in the application for modification, averments have been mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncorrect. It is not necessary to mention all other averments made in reply, about ownership etc. of the flat. It is also denied that in the absence of lawyers, there was any handicap, as the parties are quite educated. It was, however, also submitted in the reply that the payment of Rs.1,60,000/- was to be made by the husband-respondent to the appellant-wife within 4 months from the date of execution of the Memorandum of Agreement. The agreement was entered into on 26.7.1991 and the decree of divorce was granted on 7.3.1992, after about 7 to 8 months of the agreement, but no payment was made. Raising several other pleas, she prayed for the rejection of the application. The Family Court, on the aforesaid application, passed an order on 11.11.1992 amending the decree inserting all the Clauses (1) to (11) of the agreement in the amended decree. The order of amendment of the decree first states about the decree passed on 7.3.1992 and makes the amendment observing :- It is hereby ordered and decreed that the consent terms incorporated in Memorandum of Agreement which is the part and parcel of the Petition be included in decree from condition No.1 to Condition No.11. It is to be noticed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r omit. No new arguments or re-arguments on merits are required for such rectification of mistake. In a case reported in (1999) 3 S.C.C. 500 Dwarakadas Versus State of M.P. and Another this Court has held that the correction in the order or decree should be of the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial court had not granted the interest pendente lite though such a prayer was made in the plaint but on an application moved under Section 152 C.P.C. the interest pendente lite was awarded by correcting the judgment and the decree on the ground that non-awarding of the interest pendente lite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152 C.P.C. by the Courts beyond its scope has been deprecated. While taking the above view this Court had approved the judgment of the Madras High Court in Thirugnanavalli Ammal versus P....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... should be passed.. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Courts inherent powers as contained under Section 152 C.P.C. It is to be confined to something initially intended but left out or added against such intention. So far the legal proposition relied upon by the learned Single Judge and the Honble Division Bench deciding the matter in its LPA jurisdiction, we are totally in agreement with the same i.e. an unintentional mistake which occurred due to accidental slip has to be rectified. The question however which requires consideration is as to whether on the facts of the present case and the principles indicated above, it could be said that there was any clerical or arithmetical error or accidental slip on the part of the Court or not. Thus coming to the facts of the case it is to be noticed that in Paragraph 8 of the main petition ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h 3 of his application for modification of the order. according to which the parties being lay persons without assistance of lawyers had failed to ask for the relief as per the agreement in their prayer clause. Consequently order was silent on those reliefs. No averment of inadvertence by reason of which court may not have included those terms in the decree has been indicated in the application for modification of the decree. It is only an effort to improve upon the case as taken up by the respondent in his application. Again we find that in Para 16 of the order the learned judge of the family court after referring to certain decisions cited by the parties holding some of them to be applicable and others not, held as follows: I have already pointed out in the earlier paragraph of my judgment that both the parties intended to get divorce and agreement to that effect was entered into between the parties which form part of the pleading and both parties initially accepted that it should also form part of the decree (underlined by us to emphasize) It is to be noticed that no such prayer was ever made by the parties that the agreement should form part of the decree. Paragraph 8 of the p....