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2016 DIGILAW 1076 (MP)

Kanhaiya Namdeo v. Rani Bhawsar

2016-11-25

G.S.AHLUWALIA, N.K.GUPTA

body2016
ORDER 1. The applicant has preferred the present review application to review the order dated 26.3.2014 passed by the Division Bench of this Court in First Appeal 11/2011 whereby the appeal filed by the respondent was disposed of by grant of permanent alimony under section 25 of the Hindu Marriage Act. 2. Facts of the case, in short, are that the applicant moved a petition of divorce before the concerned District Court. The Second Additional District Judge [FTC], Ganj Basoda, District Vidisha (M.P.) in Civil Suit No.17-A/2010 HMA vide judgment and decree dated 30.7.2010 granted the decree of divorce and the respondent filed an appeal. When the case was listed for settlement on 19.3.2014, learned counsel for the respondent expressed his view that if a permanent alimony is fixed then respondent has no objection to divorce decree and thereafter the case was reserved for judgment. On 26.3.2014, the order was passed and the permanent alimony of Rs.5,00,000/- in lumpsum was granted under section 25 of the Hindu Marriage Act to respondent- Rani Bhawsar. 3. After considering the challenge made by the applicant and submissions made by the learned counsel for the respondent, it appears that there are some discrepancies between the pleadings and facts in the affidavit given by the applicant and his previous counsel Shri Pradeep Katare. There is a discrepancy as to whether the applicant took the case file back from Shri Pradeep Katare or he could know about the decree passed by the High Court when execution was started. There is also a discrepancy as to how the applicant got the knowledge of decree. If affidavit is filed in support of final decision then it is deprecated by the apex Court in the case of Ram Bali v. State of U.P. [ (2004)10 SCC 598 ]. Para 9 of the said judgment may be reproduced which goes as under : “We notice that the High Court specifically records that only two points were urged before it. It has to be noted that the statement of as to what transpired at the hearing, the record in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statement on affidavit or by other evidence. It has to be noted that the statement of as to what transpired at the hearing, the record in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statement on affidavit or by other evidence. If a party thinks that the happenings in Court have been erroneously recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges who have made record, to make necessary rectification. That is only way to have the record corrected. It is not open to the appellant to contend before this Court to the contrary. {See : State of Maharashtra v. Ramdas Shrinivas Nayak and another [ (1982)2 SCC 463 ), Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others [ (2003)2 SCC 111 ], and Roop Kumar v. Mohan Thedani [ (2003)6 SCC 595 ]}.” 4. It is also submitted by the learned senior counsel for the applicant that if learned counsel for the applicant had accepted the settlement then there was no problem to the parties to appear before the Court on 19.3.2014 to show the amount of alimony and it was not required for the Court to reserve the case for order to settle the alimony. If compromise took place between the parties finally then nothing can be left on the Court to decide anything whereas in the present case quantum of alimony was not at all settled. Hence, the affidavit of Shri Pradeep Katare, Advocate, appears to be correct that he did not give his consent for settlement. 5. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, first, it should be made clear that the order dated 26.3.2014 passed by the Division Bench of this Court was dependent upon the order dated 19.3.2014 and therefore the validity of order dated 19.3.2014 shall also have to be considered simultaneously. In the order dated 19.3.2014, it was not mentioned by the Division Bench that after giving proposal by respondent’s counsel whether counsel for the applicant Kanhaiya Namdeo accepted the same proposal or not. In the order dated 19.3.2014, it was not mentioned by the Division Bench that after giving proposal by respondent’s counsel whether counsel for the applicant Kanhaiya Namdeo accepted the same proposal or not. It is not specifically mentioned in the order sheet dated 19.3.2014, however, if Shri Pradeep Katare, the then counsel of the applicant, has submitted an affidavit that he did not give any consent to that proposal then such affidavit cannot be accepted in the light of the order passed by the apex Court in the case of Ram Bali (supra). If learned counsel for the applicant had not given any consent then Court could not reserve the matter for orders on the basis of compromise and therefore it may be a clerical mistake in the order dated 19.3.2014 that it was not mentioned that Shri Pradeep Katare, Advocate, has given his consent to the proposal of the respondent. 6. However, in a compromise case, compromise is required to be done by the parties. When the matter was listed before the Division Bench for settlement then it was expected that the applicant and the respondent would have appeared before the Court in person to give consent of settlement and to reach a particular settlement. If notice given by the applicant to his counsel Shri Pradeep Katare is perused then it is clearly mentioned in the notice that he never instructed Shri Pradeep Katare to give such a consent. It is the settled view of the apex Court in so many cases that learned counsel for the party cannot go beyond the instructions given by his party and therefore it is not establish by any of the parties in the case that Shri Pradeep Katare was competent to give such consent without the instructions of the applicant Kanhaiya Namdeo. It is apparent from the record that on the date of settlement, neither the applicant Kanhaiya Namdeo nor the nonapplicant Rani Bhawsar was present and therefore it cannot be said presumed they had authorized their counsel to do such compromise. Also if any valid settlement took place then there was no problem to settle the amount of lump sum alimony and there was no need to reserve the case for judgment/order. After grant of settled alimony, appeal against decree of divorce would have been dismissed. Also if any valid settlement took place then there was no problem to settle the amount of lump sum alimony and there was no need to reserve the case for judgment/order. After grant of settled alimony, appeal against decree of divorce would have been dismissed. If Shri Pradeep Katare gave his consent for compromise then such consent cannot be accepted as given by the applicant. It was for the Division Bench to call for the applicant as well as the respondent for confirmation of that compromise whereas such procedure was not adopted and hence it appears that a glaring mistake has been crept in while passing of the impugned order that no verification of settlement done by calling parties in person. Thus it is an appropriate case in which the order dated 19.3.2014 and 26.3.2014 may be recalled. 7. On the basis of the aforesaid discussion, it is a good case in which review application may be accepted and consequently, the same is hereby accepted. Orders dated 19.3.2014 and 26.3.2014 passed in First Appeal No.11/2011 are hereby recalled and First Appeal No.11/2011 is hereby restored to its original number.