Velayudhan v. Joseph — 1954 DIGILAW 145 (KER)

Judgment :- 1. The 5th defendant is the appellant in this Second Appeal. The suit out of which this arises was for eviction with arrears and future rent on foot of a pattomchit, Ext. A, dated 4.10.1077. The plaintiff's case was that the property belonged to one Kadutha Kochayyappan who leased it to Kunjan Thampi under Ext. A. The lease-hold by successive transfers devolved, according to the plaintiff, on Paru Mathevi who was the wife of the 5th defendant and the mother of defendants 1 to 4. There are two items in the schedule attached to the plaint, the second being a building in the first. The 5th defendant's case was that Kadutha Kochayyappan had nothing to do with the property and it belonged to one Tharayil Kunjayyappan who leased it to Ayyappan Kunjan on 15.10.1054. There was a sub-lease by Kunjan in the year 1070 to one Kunjan Kuttan. The sub-lessor assigned his lease-hold interest subsequently to the sub-lessee. The interest of Kunjan Kuttan thus obtained devolved upon one Kunjipennu who in 1099 gave a lease of the property to the 5th defendant and in the year 1104 gave also a mortgage to him. It is in this way that the 5th defendant contends that he is in possession of the property. The connection between Ext. A, the lease to Kunjan Thampi, with the 5th defendant in the manner mentioned in the plaint as aforesaid was repudiated by the defendant. Upon these pleadings nine issues were settled of which 1 to 4, 6 and 8 are the following: "1. Whether Kadutha Kochaiyyapan had any right over the plaint property? 2. Is the sale deed in favour of the first plaintiff valid? Is the executant of the sale deed competent to execute the same? 3. Are not the defendants enjoying the properties as per the leasee deed of 1077 relied on by the plaintiff? 4. Whether the arrears of pattom is true? 6. What is the annual mesne profits? Is not the plaintiff entitled to get the same? 8. Whether the set off claimed is allowable"? Why the burden on issue 3 was cast on the defence is not clear. Plaintiffs claim title to the reversion under Ext. B dated 25.4.1095 which is a transfer given by the said Kadutha Kochaiyyappan to them. What is the annual mesne profits? Is not the plaintiff entitled to get the same? 8. Whether the set off claimed is allowable"? Why the burden on issue 3 was cast on the defence is not clear. Plaintiffs claim title to the reversion under Ext. B dated 25.4.1095 which is a transfer given by the said Kadutha Kochaiyyappan to them. Sri K.M. Ipe, the Principal Munsiff of Sherthallai, who heard the case gave judgment to the plaintiff on 12.3.1115 and in doing so mentioned in paragraph 7 of the judgment. "Issues 1 to 4, 6 and 8. These issues were not pressed." There is no discussion, therefore, upon the matters covered by these issues. The result of their not being pressed was to necessitate a decree in favour of the plaintiffs because if issue No. 3 which asks "Are not the defendants enjoying the properties as per the lease deed of 1077 relied on by the plaintiff" is found in plaintiffs' favour a judgment to them must follow and it did. The 5th defendant appealed to the District Judge of Alleppey and in that appeal an affidavit sworn to by counsel who appeared for the 5th defendant, Sri N. Gopalakrishna Prabhu, was presented. The Judge in paragraph 6 of the judgment with reference to this affidavit says: "In the first place, it is significant to note that in the affidavit filed, the learned advocate appearing for the appellant in the court below, does not state that he had argued those issues. He simply says that he had not stated that he did not press those issues". The learned judge went on to consider whether counsel could have pressed those issues on the materials on record and reached the conclusion that he could not. 2. Mr. Krishnamoorthi Iyer, learned counsel for the appellant in this court, contends that the court below should have acted upon the affidavit of Sri Gopalakrishna Prabhu, set aside the judgment of the trial court and remanded the case for fresh disposal. I cannot accede to that contention. 2. Mr. Krishnamoorthi Iyer, learned counsel for the appellant in this court, contends that the court below should have acted upon the affidavit of Sri Gopalakrishna Prabhu, set aside the judgment of the trial court and remanded the case for fresh disposal. I cannot accede to that contention. In Krishna Iyer v. Lakshmanan (7 DLR Travancore-Cochin 201) at page 202, this court observed: "As to what transpired in a court at the trial the statement of the judge who presided thereat is conclusive: The statement of the judge who presides at the trial whether it be in a criminal or civil case, as to what has taken place at the trial is conclusive. Neither the affidavit of bystanders nor of the jurors nor the notes of the counsel nor of shorthand writers are admissible to controvert the notes or statement of the judge." "said Estropp, C.J. in Reg. v. Prestanji Dinsha (10 Bom.H.C.R.75) quoting Coleridge, J., at page 131 in Reg. v. Aaron Mellor (27 LJNS 12) Mag. Cal.): "I apprehend that we are bound to give credence to statement of the judge, and to take what the judge so states to be incontroversibly the fact." and Martin B at page 137: "We must consider the statement of the judge as absolute verity, and we ought to take his statement precisely as a record, and act on it in the same manner as on a record of Court, which of itself imports absolute verity". (See also Timmalapatlli Virabhadra Rao v. Sokalchand Chunilal (1951 (1) M.L.J. 244 = 6 DLR Mad. 249)". This view was affirmed by the Supreme Court in Mar Basselios Catholicos v. Mar Poulose Athanasius (1954 KLT 385). At page 413 (paragraph 35) the Supreme Court said: "Learned Attorney-General strongly objects to any reference being made to the facts contained in the affidavit of E.J. Philipose or the letters produced along with it and he refers us to the decisions of this Court in Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd. (1953 S.C.R. 351 at p. 366) and the cases therein referred to and to the case of Reg. v. Pestanki Dinesh and another 10 Bombay H.C.R. 75. Ltd. v. Jawahar Mills Ltd. (1953 S.C.R. 351 at p. 366) and the cases therein referred to and to the case of Reg. v. Pestanki Dinesh and another 10 Bombay H.C.R. 75. It will, however, be noticed that what was deprecated in that case was the fact that no affidavit had been filed before the trial court for the rectification of what, in the appeal court, was alleged to have been wrongly recorded by the trial Judge. The Privy Council in Madhu Sudan Chowadri v. Musammat Chandrabati Chowdrani (1917) 21 C.W.N. 397 also suggested that the proper procedure was to move the court in whose judgment the error is alleged to have crept in. In this case, as already stated, an affidavit was filed before the appeal court itself while the Chief Justice and Nokes, J. were still in office. Further, if, as laid down in the judgment of this Court to which reference has been made, the proper procedure is to apply to the Court whose judgment is said to be founded on a misconception as to the concession made by the learned Advocate, appearing before it, by what procedure, unless it be by way of review, could that Court be moved? Indeed, the Madras case referred to in the judgment of this Court freely indicates that the application should be by way of review. Patanjali Sastri, J. (as he then was) sitting singly in the Madras Court definitely took the view in Rekhanti Chinna Govinda Chettiar v. S. Varadappa Chettiar, AIR 1940 Madras 17 that a misconception by the Court of a concession made by the advocate of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney General contends that this affidavit and the letters accompanying it cannot be said to be part of "the record" within the meaning of O.47 R.1. We see no reason to construe the word "record" in the very restricted sense as was done by Denning, L.J. in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw (1952) 2 (sic) 1 K.B. 338 at pp. We see no reason to construe the word "record" in the very restricted sense as was done by Denning, L.J. in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw (1952) 2 (sic) 1 K.B. 338 at pp. 351-352, which was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error complained of is that the Court assumed that a concession has been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the Court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only be done by way of review. The cases to which reference has been made indicate that the misconception of the court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion, it is permissible to rely on the affidavit as an additional ground for review of the judgment". Review, therefore, is and is the only remedy of a party aggrieved by a record made by a court as to what transpired before it. The affidavit presented in the lower appellate court could not and need not, therefore, have been adverted to much less acted upon by it. 3. Mr. Krishnamoorthi Iyer then urged that the action of counsel of his client in the trial court in not having pressed these issues amounted in the circumstances to totally giving up of the entire defence which is beyond the competence of counsel. This is a point which has to be considered. If it is beyond the counsel's competence to give up the case in this fashion it will be as though the case has not been given up and the court would be bound to consider the questions on their merits which has not been done. Mr. Abraham, learned counsel for the respondent, did not dispute that this question of counsel's competency is of vital importance and should be considered by the court. Mr. Abraham, learned counsel for the respondent, did not dispute that this question of counsel's competency is of vital importance and should be considered by the court. He, however, submitted that the point not having been raised in the lower appellate court it is too late for the appellant to raise it here in second appeal. Under the circumstances and in view of the fact that the appeal was presented in 1950 before the decision of this Court and of the Supreme Court which were rendered in the years 1951 and 1954 respectively and in view of the practice that appears to have been prevalent of presenting affidavits in appellate courts challenging the record made by lower courts as to what transpired before them and particularly in view of the fresh point raised here which may give a totally different turn to the case I consider that I must use my discretion in the appellant's favour, set aside the decree of the lower appellate court and send the case back to that court for fresh disposal after giving an opportunity to the appellant to raise the question of the competency of counsel to not press issues 1 to 4, 6 and 8. If the appellate court finds it beyond the counsel's competency so to do, then, that court will consider the case on the merits independent of that conduct. The disposal by the lower appellate court is seen to be influenced by the concession made by counsel in the trial court which had not been sufficiently contradicted in the affidavit presented in appeal. 4. The second appeal is accordingly allowed, the decree of the lower appellate court set aside and the case remanded to the lower appellate court for fresh disposal in the manner above mentioned. The appellant will pay the costs of the respondent in this second appeal. Refund Court Fee to the appellant. Allowed.