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1975 DIGILAW 351 (MAD)

R. Perumal Gounder v. K. P. Easwara Kandar

1975-07-28

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Judgment :- 1. The first respondent in I.A. 445 of 1969 in O.S. No. 60 of 1966, on the file of the Court of the Subordinate Judge of Salem, is the appellant herein. The I.A. itself was filed for passing of a final decree in a mortgage suit. The order in the I.A. against which the appeal has been filed runs as follows: “Counter of newly added parties filed. The only objection by R. 1, 3 to 5 it that all the L.Rs. of deceased P. 1 are not added. This is rectified by adding other L.Rs. The newly added parties support the case of the petitioners 2 to 4. Hence final decree is passed with costs as prayed for.” Thus the order makes it clear that the only objection raised by the appellant herein was that all the legal representatives of deceased first petitioner were not added. However, the learned counsel for the appellant now contends that this was not the only objection raised before the trial court and he also raised an objection that subsequent to the passing of the preliminary decree a sum of Rs. 15,000 had been paid to the mortgagee, namely, the plaintiff-decree-holder. It is true that such a contention had been raised in a counter affidavit filed by the appellant herein in another I.A. 446 of 1969. But we are concerned in the present appeal not with what was stated in the counter affidavit but what was argued before the court below. The court below clearly refers to the fact that objection, regarding the failure to add all the legal representatives was the only objection raised before the court below. Under these circumstances, it is now not open to the appellant to contend that the other objection had not been considered by the court below. The law in this behalf is clear. This court in Virabadra Rao v. Sokalchand Chunnilal 1951-1 M.L.J. 244. 64 L.W. 281 stated that a statement in a judgment or order as to what had taken place in court is conclusive and cannot be allowed to be controverted by an affidavit or otherwise and a party, who is aggrieved by what he considers a wrong statement in the judgment, should apply to the very same Judge by way of review. The rationale behind this was given by this court as follows: “Now, if we examine its raison detre the role that a statement in a judgment as to What happened in court should not be allowed to be controverted is seen to rest on a number of salutary reasons. One is that to depart from it and to allow such statements when they are deliberately made in judgments to be challenged would be to draw the presiding officers of courts into the controversy between the parties, a process which must inevitably and in the loug run lead to embarrassment, if not demoralisation all round. Especially when the parties are rich and obstinate vakils appearing for them would be subjected to a degree of pressure to swear to affidavits which is not to be encouraged Confidence in the impartiality of the officers presiding in the courts of Justice is the very foundation of our judicial system and indeed of any civilised system and if such officers are dragged into the battle of allegations and counter-allegations that is appropriate only to the role of litigants, their detachment and the confidence which such detachment in spires will be seriously impaired.” The above judgment of this Court was approved by the Supreme Court in Sha Mulchand and Co. v. Jawahar Mills Ltd. A.I.R. 1953 S.C. 98. As far as the present case is concerned apart from a ground in the grounds of appeal filed before this court, not even an affidavit either by the counsel or the party has been filed that such a point or objection was urged before the trial court and that court did not consider the same. Under these circumstances, the appeal fails and is dismissed. No order as to costs.