S.R.Singh, 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 & 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 Bal Krishna 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. 8536.79 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 30.9.97 with costs on parties attended with the direction that the defendant Bal Krishna 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 CPC 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 petition vide judgment and order dated 16.10.95, the Court made the following animadversion on the applicant who is presently posted as District Judge, Bulandshahar ; "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 overall facts applicant's judicial conscience was moves 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 form 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 afore stated 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 pre-supposition that lower Courts would in 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 justifying 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 discretion's and in the manner of judging".;