PRASANTA KUMAR DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) AGAINST the clarification of the order dated 19th May, 1986 by an order passed on 16th July, 1986, the instant appeal has been preferred and this application for stay has been made in connection with the said appeal.

(2.) IT appears that in a writ proceeding concerning C. O. 6066 (W)of 1986, a prayer for interim order was made by the writ petitioner and interim order was made and was extended until the hearing of the application. When the said application was called, the counsel for the writ petitioner was not present and it appears from the order sheet that an order was recorded to the effect "let the matter go out of list". The petitioner thereafter proceeded on the footing that since the interim order which was parsed and extended subsequently was not vacated by, any further order and on 19th May, 1986 the application went out of list, the interim order was continuing. As it appeared to the petitioner that the interim order was violated by the respondents deliberately, he made an application for contempt of court for violating the said interim order and it appears that a notice of the said contempt application has been issued. Thereafter, the respondents in the said writ petition after being served with the contempt application mentioned the matter to the learned trial Judge and it is the case of the appellant that the matter thereafter appeared for orders in the list with notice to the writ petitioner. It is the case of the appellant petitioner in the instant application that the learned counsel of the petitioner was not allowed to make submission but the order dated 19th May, 1986 was modified by the learned Judge by an order passed on 16th July, 1986 to this effect

(3.) MR. Banerjee, learned counsel appearing in support of this application for stay of the said order dated 16th July, 1986 has strenuously argued that the order dated 19th May, 1986 which was recorded in the order-sheet should not have been varied or corrected simply on the basis of the recollection of the learned Judge, more so. when sufficient time had lapsed and various other consequences have taken place on the basis of the order since gone down in the order sheet. He has contended that if the order is corrected On 16th July, 1986 by way of clarification as has been done by the learned Judge, the petitioner in the writ petition will be put to a difficult position because he had no opportunity to prefer " any appeal against the said order vacating the interim order within time because such an order had not been recorded in the order and as such he had no occasion to know that the order was something else. Mr. Banerjee has also con tended that the court should also take serious note of the fact that "to err is human" and the learned Judges are not exceptions to the said , malady of human frailty. He has contended that after lapse of considerable time it becomes very difficult for the learned Judge to remember facts correctly and in all probabilities it is not possible for the learned Judge to recollect what order was passed in a particular case, more so, when there was no contested hearing and for that reason there was no special occasion to remember. He has submitted that if simply on the basis of the recollection "of the learned Judge an order is corrected at a later stage there is every likelihood that such correction is not done on a proper footing thereby causing injustice to a party against whom the subsequent correction is made. He has, therefore, contended that the said order dated 16th July, i986 which virtually replaced the order dated 19th May, 1986 as gone down in the record, should be set aside by this court by allowing the appeal. We are, however, unable to accept the said contention of Mr. Banerjee. It is true that "to err is human" and Judges are not infallible. But it appears to us that when order has been wrongly noted by the officer of the court and has gone down in the order book wrongly and the attention of the Judge is drawn to such incorrect recording of the order, the learned Judge has not only the power to correct the incorrect order, but in our view, he has also the duty to do that It is true that with the lapse of time when various orders are being passed by a learned Judge in different matters, it is often very difficult for the learned judge to recollect what particular order was passed in a particular meter, more so, when there was no contested hearing and by that process, there was any special occasion to remember the order passed in the said occasion to remember the order passed in the said proceeding. But if for any reason, the learned Judge recollects such event and on such basis corrects the order wrongly gone down in the order book, we do not think there will be any occasion for the Appeal Court to take a contrary view and or set aside the said order. There is no manner of doubt that before making the correction, the learned Judge must have considered the facts in the proper perspective and he had definitely remembered the order actually passed by him but wrongly gone down in the order book and it is only on that score, he has corrected the same.