JUDGMENT S.R. Singh and S.P. Mehrotra, JJ.
1. The petitioner, a Judicial officer of H.J.S. cadre, has moved this application for expunction of certain remarks which find mention in the judgment rendered by this Court on 16.10.1995 in Civil Misc. Writ Petition No. 6424 of 1978, Sri Bal Krishna Arora v. Civil Judge. Agra and Ors.
2. The necessary facts which bear on the controversy Involved in this petition are that one Smt. Sharda Devi instituted Civil Suit No. 205 of 1969 as indigent person against Balkrishna Arora and two others for the relief of partition and separate possession of her share in the suit property and for the recovery of Rs. 8,536.79 p. as her share of other Joint properties already sold off by the defendants prior to the institution of suit. The suit culminated in being dismissed on 30.9.1997 with costs on parties attended with the direction that the defendant Balkrishna Arora would defray the required amount of court fee to the State. The writ petition was preferred by defendant Bal Krishna Arora canvassing the correctness of the said order in so far as it directed payment of required amount of court fee by the defendant to the State. This Court, after noticing the provisions of Order XXXIII, Rule 11, C.P.C.. held that when the suit of an Indigent person failed, the plaintiff would be liable to pay the due amount of court fee in that there was nothing in the Code of Civil Procedure to indicate that in case the suit of an indigent person failed, the defendant and not the plaintiff would be liable to pay the due amount of court fee. However, while allowing the writ petition vide Judgment and order dated 16.10.1995, the Court made the following anim-adversion on the applicant who is presently posted as District Judge, Bulandshahr :
"In giving direction regarding recovery of court fee from the defendant after dismissing the suit by indigent person, the learned Civil Judge has shown his utter Ignorance of the provisions of Code of Civil Procedure. It is disappointing that even after putting in seven years of service, he did not make himself conversant even with the basic provisions of the Code of Civil Procedure."
3. The suit was decided by the applicant as Civil Judge, Agra and at the relevant time, the applicant had put in seven years of service as Judicial officer. In his application for expunging/deleting the afore-extracted observations from the Judgment, the applicant has stated that on the findings recorded in the Judgment, the applicant dismissed the suit but considering the over-all facts, applicant's judicial conscience was moved to Issue the direction that the defendants should pay the court fee. In fact the plaintiff, a widow had instituted the suit for partition and possession of her share in the family property. The suit was resisted as being barred by "estoppel" due to plaintiff's electing to claim maintenance of Rs. 25 per month instead of share in the family property. The applicant while dismissing the suit held that although the plaintiff had 1/3rd share in the suit property, but having chosen to enforce the right of maintenance, she was "estopped from filing the suit for partition or claiming any mesne profits". The direction to the defendant to pay the court fee was given by the applicant, while dismissing the suit on the premises that the defendant was benefited by the election of the plaintiff to have maintenance of Rs. 25 per month in lieu of her 1/3rd share in the property. The direction so given by the applicant, while dismissing the suit, was. no doubt, legally unsustainable but in giving the said direction, the applicant seems to have fallen prey to emotive considerations emanating from the fact that the plaintiff was the hapless widow and the defendant exploited her hapless condition to his advantage. To rephrase it, the direction aforestated seems to be not a product of law but the circumstances of the case seem to have struck the emotional cord of a young judicial officer as he then was. In Kashinath Rai v. State of Bihar, JT 1996 (4) SC 605, the Apex Court held as under:
"It cannot be forgotten that in our system, like elsewhere, appellate and revisional courts have been set up on the presupposition that lower courts would tn some measure of cases go wrong in decision-making, both on facts as also on law, and they have been knit-up to correct those orders. The human element, in justicing being an important element, computer-like functioning cannot be expected of the Courts ; however, hard they may try and keep themselves precedent-trodden in the scope of discretions and in the manner of judging".
In K.P. Tiwari v. State of M.P., AIR 1994 SC 1031. the Apex Court came across certain observations made by a learned Judge of High Court expressing stricture against a Judge of the subordinate judiciary. The Apex Court observed as under :
"The higher courts everyday come across orders of the lower courts which are not justified either in law of In fact and modify them or set them aside. That is one of the functions of the superior courts. Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err..... It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more correctly upto their nostrils. They do not have the benefit of a detached atmosphere of the higher Courts to think coolly and decide patiently. Every error, however, gross it may look, should not, therefore, be attributed to improper motive".
In Braj Kishore Thakur v. Union of India, AIR 1997 SC 1157, the Apex Court has held as under :
"Judicial restraint is a virtue. A virtue which shall be concomitant of every judicial disposition. It is an attribute of a Judge which he is obliged to keep refurbished time to time, particularly while dealing with matters before him whether in exercise of appellate or revisional or other supervisory jurisdiction. Higher Courts must remind themselves constantly that higher tiers are provided in the judicial hierarchy to set right errors which could possibly have crept in the findings or orders of Courts at the lower tiers. Such powers are certainly not for belching diatribe at judicial personages in lower cadre. It is well to remember the words of a jurist that "a Judge who has not committed any error is yet to be born".
4. The verdict in the suit was given on 30th September. 1977 and the writ petition in this Court arising out of the said order, came to be decided vide judgment and order dated 16.10.1995, i.e., after an Interregnum of about 18 years of the judgment. In between and even prior to 1977 and subsequent to 1995, the officer has consistently earned many laudatory entries to his credit in the A.C.Rs. which were summoned and perused by us. Having regard to the facts and circumstances of the case. It cannot be gainsaid that the widow's hapless condition was exploited by the defendants to their advantage. Otherwise, she would not have bartered her 1/3rd share in the family property in lieu of maintenance of Rs. 25 per month and it was in these circumstances that the applicant while dismissing the suit filed as an indigent person directed the defendant to pay court fee and upon regard being had to these facts and the fact that the applicant was still a greenhorn with seven years standing, we are of the view that the strictures passed against the officer are liable to be expunged in the interest of justice.
5. As a result of foregoing discussion, the application is allowed. The strictures passed against the officer as excerpted hereinabove are ordered to be expunged from the judgment dated 16.10.1995. As a result of expunction of the strictures passed by the Court, the applicant shall be entitled to all consequential benefits Including removal of the remarks contained in the penultimate paragraph of the Judgment dated 16.10.1995. delivered in Writ Petition No. 6424 of 1978 from the service record.
Let a copy of this order be placed before the Registrar General for follow-up steps and necessary action in the light of this order.