GHEWAR CHAND Vs. STATE BANK

JUDGEMENT

(1.) THIS revision petition has been filed against the order of the learned District Judge, Jodhpur dated November 3, 1989 by which he has rejected the application of the defendants moved under section 151, C. P. C. for taking on record their written-statement. The facts of the case giving rise to this revision petition may be summarised thus.

(2.) THE plaintiff non-petitioner No. 1 has filed a suit for the recovery of certain amount in the court of the District Judge, Jodhpur against the defendant Ghewar Chand (petitioner) and his father Tejmal (non petitioner No. 2.), Shri P. K. Bhansali, Advocate- put his appearance for and on their behalf on July 15, 1987, he sought time for filing their written statement and October 8, 1987 was fixed for filing it. Written statement was not filed on this date and December 16, 1987 was fixed for the same purpose. Again the written statement was not filed and adjournment was sought by Shri P. K. Bhansali, Advocate for filing it. THEreafter, February 25, April 28, July 6, and August 29, 1988 were fixed for filing the written statement. On August 29, 1988, time was granted for filing it on payment of Rs. 150/- and October 13, 1988 was fixed. Due to the strike of the employees, the case could not be taken up on October 13, 1988 but was taken up on December 7, 1988. On December 7, 1988, Shri P. K. Bhansali, Advocate again sought time for filing written statement, it was granted on payment of Rs. 300/- as cost and January 11, 1989 was fixed for filing it. On January 11,1989, Shri P. K. Bhansali moved an application for time to file written statement and to make payment of costs, the learned counsel for the plaintiff seriously objected it and the application was allowed and last opportunity was given to the defendants to file their written statement on payment of Rs. 200/- as costs. On March 7, 1989, the written statement was filed but the amounts of costs of Rs. 650/- were not paid. On March 8, 1989, a copy of the written statement was given to the plaintiffs' counsel and the learned counsel for the defendants stated that the said amount of Rs. 650/- would be paid on the next date i. e. April 20, 1989. On April 20, 1989, Shri P. K. Bhansali, Advocate again sought time for making payment of Rs. 650/- and it was granted. On May 8, 1989, time was again sought for making payment of Rs. 650/- and May 15, 1989 was fixed. On May 15, 1989, Shri P. K. Bhansali, Advocate again sought time for making payment of the said amount of Rs. 650/ -. THE learned District Judge passed order that if the cost was not paid on the next date, the written-statement would not be taken on record and May 27, 1989 was fixed. On May 27, 1989, Shri P. K. Bhansali, Advocate again sought time, it was seriously opposed by the learned counsel for the plaintiff, the learned District Judge passed order that the written statement of the defendants would not be taken on record and fixed August 5, 1989 for the plaintiffs evidence. On August 5, 1989, the defendants moved an application under section 151, C. P. C. for taking on record their written statement. Its reply was filed by the plaintiff. After hearing the parties, the learned District Judge dismissed the application by his order under revision.

(3.) IN State of Maharashtra V. Ramdas Shrinivas Nayak (1), it has been observed as under : " When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A. K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us interferred and protested that he neaver made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arera. "judgments cannot be treated as mere counters in the game of litigation. " (Per Lord Atkinson in Somasundaran V. Subramanian, AIR 1926 PC 136 ). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in then-judgment that some thing was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Backmaster in Madhusudan V. Chandrabati, AIR 1917 PC 30 ). That is the only way ,to have the record corrected. If no such step is taken, the matter must necessarily and there. Of course a party may resile and an Appellate Court may permit him in rate and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but he may not call in question the very fact of making the concession as recorded in the judgment. " To say the least, the averments made in the revision petition and quotted in para 5 above, are not correct. They have falsely been made to give weight to the revision petition. On this ground alone, the revision petition deserves to be rejected.