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2004 DIGILAW 68 (HP)

TEK RAM v. TOT RAM

2004-04-07

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J.—This petition is directed against the order dated 12.12.2003, passed by learned District Judge, Kullu, in Civil Appeal No. 38 of 2003, titled as Tot Ram v. Tek Ram. For ready reference this order is extracted hereinbelow : "Appellant-plaintiff preferred the present appeal against the judgment and decree dated 22.7.03 passed by learned Senior Sub-Judge, Kullu in Civil Suit No. 125/01. Vide impugned judgment and decree the learned trial court partly decreed the suit. 2. While, addressing arguments the learned counsel for the appellant contended that qua issue No. 2 the learned trial court has observed with regard to giving up claim of plaintiff for specific performance of the contract by the learned counsel for the plaintiff. According to him, infact, no such concession was ever given by counsel for the appellant-plaintiff in the trial Court. 3. In this view of the matter and keeping in view the facts and circumstances of the case, I deem it proper to send back the record of the trial court with the direction to give finding on issue No. 2 on the basis of the material on record without interfering with the impugned judgment and decree. I order accordingly. The record of the trial Court alongwith a copy of this order be sent back immediately and parties are directed to appear in that Court on 18.12.03. The learned trial Court shall take steps to send back the record by 31.3.04 after doing the needful. Put up on 31.3.04 for further order." 2. Brief facts giving rise to the filing of the appeal wherein the impugned order has been passed are, that a suit for specific performance of contract dated 2.9.1988 was filed by the respondent (hereinafter referred to as "the plaintiff"), against the petitioner (hereinafter referred to as "the defendant"). As per the averments made in the plaint, suit land was agreed to be sold for Rs. 60,000/- and out of this a sum of Rs. 37,500/- was received as earnest money and the balance of the sale consideration of Rs. 22,500 was payable by the plaintiff to the defendant at the time of registration of the sale deed. This sale transaction was to be completed by or before 31.12.1998. 60,000/- and out of this a sum of Rs. 37,500/- was received as earnest money and the balance of the sale consideration of Rs. 22,500 was payable by the plaintiff to the defendant at the time of registration of the sale deed. This sale transaction was to be completed by or before 31.12.1998. Since defendant failed to do the needful, therefore, decree for specific performance of the agreement to sell and get the sale deed registered through Court of law or for payment of Rs. 75,000/- being the double of the amount of the earnest money was prayed for. Plaintiff claimed to be ready and willing to perform his part of the agreement and with a view to get the needful done he remained present in the office of Sub Registrar, Kullu, along with money. Hence on the failure of the defendant, the suit. 3. Defendant denied having entered into agreement dated 2.9.1998, as well as having agreed to sell the land as alleged. He also denied the claim of the plaintiff. 4. Parties joined issue on a number of pleas. Trial Court framed following issues on the basis of the pleadings of the parties. "1. Whether the defendant entered into an agreement to sell the land in suit to plaintiff for a sum of Rs. 60,000/-, as alleged? OPP 2. Whether the plaintiff has been ready and willing to perform his part of contract, as alleged? OPP 3. Whether in the alternative, the plaintiff is entitled to recover a sum of Rs. 60,000/ on account of earnest money with interest at the rate of 18% per annum, as prayed for? OPP 4. Whether the plaintiff has no cause of action to file the suit? OPD 5. Whether the agreement to sell is forged and fictitious, without consideration and is not legally enforceable as alleged? OPD 6. Relief.” 5. For the purpose of the present petition issue No. 2 is relevant. Trial Court recorded following finding on this issue: "The learned counsel for the plaintiff, at the time of argument, has given up the claim of the plaintiff for the specific performance of the contract, therefore, this issue has become redundant, and decided accordingly, against the plaintiff." 6. Finally suit of the plaintiff was decreed for a sum of Rs. 37,500, being the alternative relief, with pendente-lite and future interest at the rate of 12 per cent per annum. Finally suit of the plaintiff was decreed for a sum of Rs. 37,500, being the alternative relief, with pendente-lite and future interest at the rate of 12 per cent per annum. Proportionate costs were also allowed. 7. Plaintiff in this aforesaid background, facts and circumstances, filed the appeal in question wherein impugned order has been passed. 8. Learned Counsel for the defendant submitted that learned appellate Court below has not only acted illegally but has ignored the fundamental principle of law by passing the impugned order. According to him, he has instructions from his client to state that issue No. 2 was given up specifically during the course of hearing before the trial court, so findings on it have been correctly recorded by the said Court. Alternatively and without conceding, he submitted that even if it be assumed for the sake of argument that this issue was not given up, remedy to the plaintiff was to have approached trial Court itself at the earliest by filing appropriate proceedings. In no case appeal was the remedy. 9. Mr. Kuthiala on the other hand submitted that there is no infirmity in the impugned order passed by the appellate Court below in this case, as according to him, trial Court under Order XX Rule 5, Civil Procedure Code was duty bound to have recorded findings on issue No. 2 on the basis of the evidence before it, even if this issue had been given up by his client. He, however, hastened to add that it was never given up. 10. For the reasons stated hereinbelow and the matter having been set at rest by the Supreme Court in a number of decision, as well as by two decisions of this Court, (one being by a Division Bench), this petition deserves to be allowed. 11. As to what transpired in Court of law is seen in the judicial record. Such record is conclusive. No party should be allowed to raise a plea like the one, which weighed with the learned appellate Court in having passed the impugned order. Why the plaintiff did not approach the trial court, when findings on issue No. 2 were incorrectly recorded, according to him. Mr. Kuthiala was not in a position to satisfy this Court. No party should be allowed to raise a plea like the one, which weighed with the learned appellate Court in having passed the impugned order. Why the plaintiff did not approach the trial court, when findings on issue No. 2 were incorrectly recorded, according to him. Mr. Kuthiala was not in a position to satisfy this Court. Judges do not come to controvert the facts and/or claims made by a lawyer and/or by a litigant like the plaintiff in the present case. How to proceed in such a situation had been attending the attention of the different courts. Reference to some cases, by way of illustration is being made hereinbelow. 12. In State of Maharashtra v. Ramdas Shrinivas Nayak and another, AIR 1982 SC 1249, what was observed and which has material bearing of this case is extracted hereinbelow:— "4. 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 intervened and protested that he never 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 to 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 arena. "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 their judgment that something 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 facts so stated and no one can contradict such statements by affidavit or other evidence. 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 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 Buckmaster 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 rare 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. 7. So the Judges record in conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." 13. In Didar Singh v. State of Himachal Pradesh and others, AIR 1987 HP 42, a Division Bench of this Court in almost identical situation while dealing with case, like the present one, negatived the plea that the judgment of the Single Judge does not correctly reflect what transpired at the hearing. It was further held that such plea cannot be allowed to be raised nor any plea can be taken as a ground or, on that basis, to advance any other grounds in support of the appeal. For ready reference paragraph 5, which is relevant is extracted hereinbelow:— "5. In view of the declaration of law in the aforesaid terms, the learned counsel for the appellant cannot be allowed to urge before us that what has been recorded in the judgment of the learned Single Judge does not correctly reflect what transpired at the hearing before him and to attack the judgment on that ground or, on that basis, to advance any other grounds in support of the appeal." 14. To the similar effect is the judgment of this case in Girish Kumar Mehra v. Sh. K.K. Sharma, Branch Manager, Bank of India, 1990(1) Shim. L.C. 27. 15. In Chitra Kumari (Smt.) v. Union of India and others, (2001) 3 SCC 208, what was held and is relevant is extracted hereinbelow : "35. When the respondents went in second appeal before the High Court, at this stage also, no cross-objections were filed. Before the High Court it was not disputed that the land was on old-grant terms. The High Court has so recorded in its judgment. It is settled law that one has to proceed on the basis of what has been recorded by the court. If any partly feels aggrieved by what has been recorded by the courts a clarification has to be sought from that same court. In this case the clarification was sought, by way of the review petition, to which as stated above, fresh documents were purported to be attached for the first time. The High Court has rejected the review petition. The High Court has thus confirmed that at the time the second appeal was argued it was not disputed that the land was on old-grant terms. This Court has to go by what has been recorded in the judgment. What is recorded in the judgment is supported by the conduct of the parties inasmuch as no evidence was led to dispute the fact, no documents were tendered or marked as exhibits and no submissions were made on this aspect. That it was not disputed that the land was on old-grant terms is also supported by what has been recorded in the judgments of the trial court and the first appellate court. There is no evidence that the written admissions were taken forcibly and/or that they were not binding or not correct. Admissions are relevant evidence if not explained away. Thus these cases have been fought over the last 17 years on an admitted position. Mr. Rohatgi is right that it would be a travesty of justice and would amount to permitting parties to misuse laws delays if at this stage they are permitted to change their stand and take contentions which are contrary to what has been the admitted position all these years." 16. Again in Central Bank of India v. Vrajlal Kapur Chand Gandhi and another, (2003) 6 SCC 573. Again in Central Bank of India v. Vrajlal Kapur Chand Gandhi and another, (2003) 6 SCC 573. In paragraph 12 the Supreme Court has observed as under:— "12. The only course open to a party taking the stand that an order does not reflect actual position is to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463: 1982 SCC (Cri) 478. In respect decisions i.e. Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003 ) 2 SCC 111: 2002 AIR SCW 4939 and Roop Kumar v. Mohan Thedani, (2003) 3 Scale 611: (2003) 6 SCC 595, the view in the said case was reiterated. 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 an 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. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend before this court to the contrary. This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in court." 17. Again in Shankar K. Mandal and others v. State of Bihar and others, (2003) 9 SCC 519, while dealing with almost similar situation Supreme Court held as under:— "10. It is not open for the appellants to take such stand before this court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands, the course to be adopted is well known. 11. It is not open for the appellants to take such stand before this court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands, the course to be adopted is well known. 11. If really there was no concession, or a different stand was taken, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463:1982 SCC (Cri) 478. In a recent decision Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111: 2002 AIR SCW 4939, the view in the said case was reiterated by observing 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. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. 12. It is also not open to contend that a plea raised was net considered. In Daman Singh v. State of Punjab, (1985) 2 SCC 670: AIR 1985 SC 973, it was observed (in para 13) as follows : (SCC p. 682) "13. The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not?" 18. So far reliance placed by Mr. Kuthiala on Order XX Rule 5, Code of Civil Procedure, on the basis of a decision of the Supreme Court in M/s. Fomento Resorts and Hotels Ltd. v. Gustavo Ranato da Cruz Pinto and others, AIR 1985 SC 736, is concerned, it is wholly misconceived. In this case, while remitting back the case to the High Court, Supreme Court observed in paragraph 27 as under:— "In a matter of this nature where several contentions factual and legal are urged and when there is scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the court should, when dealing with any matter dispose of all the points and not merely rest its decision on one single point." 19. This decision has no applicability in the facts of this case. Reason being that suit is not disposed of by the trial Court only on a single issue i.e. No. 2 in this case. And when party like the plaintiff in this case, does not press an issue, still the court is bound to given a finding on such issue is a plea in my considered view, raised to be rejected. Similarly reference to State of Punjab v. Darshan Singh, (2004) 1 SCC 328, is of no consequence. Here the matter for consideration before the Supreme Court was what is omission by court. Meaning of "arithmetical mistake", "clerical mistake" and "error arising out of or occurring from accidental slip or omission" was being examined in it. None of these situations exists in the present case. 20. Another plea urged by Mr. Kuthiala may also be noted. Here the matter for consideration before the Supreme Court was what is omission by court. Meaning of "arithmetical mistake", "clerical mistake" and "error arising out of or occurring from accidental slip or omission" was being examined in it. None of these situations exists in the present case. 20. Another plea urged by Mr. Kuthiala may also be noted. According to him, Counsel who had appeared in the trial court had not made such a statement. This plea again has been raised simply to be rejected. Because no amount of assertion on the part of the counsel and/or his client can be allowed to controvert the judicial record. If this was the factual position, plaintiff ought to have approached the trial Court and should have highlighted the correct facts on receipt of certified copy. 21. No other point is urged. 22. In view of the aforesaid discussion, this petition deserves to be allowed and is ordered accordingly. As a consequence of it, the impugned order as extracted hereinabove is hereby quashed and set aside and parties are relegated to the stage before the passing of the said order. 23. Registry is directed to send a copy of this order to the appellate Court below for proceedings further in this case. Record of the case be also sent back to the courts below there parties through their learned Counsel are directed to appear on 15.5.2004. Since date is fixed by this Court, so no fresh notice will be issued by the appellate Court below. And it shall be duty of the party concerned to appear even if the Presiding Officer was not holding Court. No costs. CMP No. 5 of 2004 24. No order in view of the disposal of the main matter. Interim order, if any, shall stand vacated forthwith. Application stands disposed of.