DAYANAND Vs. SHANTI

JUDGEMENT

(1.) HEARD on admission.

(2.) THE facts of this case are peculiar. In a suit on a date of hearing when the evidence was to be taken, as the parties did not produce evidence the court proceeded to pronounce judgment. According to the petitioner who was the plaintiff in the suit, he was not present on the concerned date and his counsel was also not present because he had noted a wrong date in his diary. The petitioner -plaintiff complains that the court wrongly marked the presence of the counsel of the plaintiff showed him to be present and finding that no evidence was produced on that date proceeded to dispose of the suit under Order 17 Rule 3. The plaintiff petitioner filed a review petition before the trial court challenging the action of the court in marking presence of the plaintiffs counsel on the relevant date. The court found this review application not worth admission and against that order this revision petition is filed. After filing the review application a regular first appeal against the decree passed by the court has also been filed by the petitioner plaintiff. But according to him in that appeal the court will be precluded from going into the question whether the plaintiffs counsel Was present on the relevant date or not. The learned Counsel for the revision petitioner relies on the decision of the Supreme Court in Bank of Bihar v. Mahabir Lal : [1964]1SCR842 , on this point. It is observed in that case that whether a statement appears in a judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong or the Court itself admits that the statement is erroneous. The remedy of a party aggrieved is by way of a review. There is nothing said in this decision about whether the appellate court can go into the question after a review application of a party is disposed of by the lower court. I do not find that this decision imposes a blanket prohibition against consideration by an appellate court of such disputed questions. What has been laid down appeals to be that the proceedings of the courts below are not to be allowed to be challenged lightly and whenever a party contests that his concession was wrongly recorded or his presence was wrongly recorded or he was shown absent when he was present, such matters should not be decided without having the version of the Judge in the lower court who is alleged to have wrongly recorded the concession, the presence or the. absence. In the present case the party had filed a review petition and beyond that It could not have done anything. If that review petition is rejected the appellate court can very well go into the question and on the basis of material on record can find out whether the contention of the party before it could be correct in the circumstances or not. It is true that at times the proceedings may not reflect the truth but presumption shall always be that the proceedings are rightly recorded and there will be a heavy burden on the party who challenges the proceedings to prove that the proceedings were wrongly recorded.