BK Tiwari Electrical Pvt. Ltd. represented by its Managing Director Shri Kededin Bhagwati Prasad Tiwari v. North Eastern Hill University (NEHU), The Registrar North Eastern Hill University (NEHU), The Executive Engineer
2010-10-26
TINLIANTHANG VAIPHEI
body2010
DigiLaw.ai
JUDGMENT T. Vaiphei, J. 1. This review petition is directed against my order dated 3-7-2009 passed in WP(C) No. 111(SH) of 2008 allowing the petitioner to withdraw the writ petition with a liberty to file a civil suit to recover the alleged outstanding liability from the respondent authorities. Contending that the prayer for withdrawal of the writ petition had been made by its counsel without its knowledge or instruction, the petitioner moved the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No. 4623/2010 for quashing my order. The Apex Court by the order dated 22-2-2010 allowed the petitioner to withdraw the special leave with a liberty to move this Court to seek appropriate modification of the said order. This is how this review petition has come up before this Court. 2. Heard Mr. S.P. Sharma, the learned Counsel for the petitioner. None appears for the respondents. Seen the review petition as well as the affidavit filed by Mr. B.K. Deb Roy, the learned Counsel appearing for the petitioner who withdrew the writ petition upon which the impugned order had been passed by me. The only question which falls for consideration is whether there is mistake apparent on the face of the impugned order. Mr. B.K. Deb Roy, the learned Counsel, in his affidavit seeks to blame this Court for wrong recording of the submissions of Mr. P. Barthakur, who is his senior, in the following manner at paragraphs 4 and 5 of the affidavit: 4. That on 03/07/2009 my senior Shri P. Barthaklur has made a prayer for withdrawal of the instant Writ Petition with a liberty to approach the Civil Court or Arbitrator to recover outstanding liabilities from the Respondents, but as per the order dated 03-7-2009 the sentence reads as follows: ... With liberty to file a civil suit to recover the alleged outstanding liability from the respondent authority. 5. That the bonafide intention of Shri P. Barthakur Senior Advocate for withdrawal of the instant Writ Petition was to approach the Civil Court which includes the arbitration proceedings and hence at the time of dictation of the aforesaid order dated 3/7-2009 by this Hon'ble Court there might have (?) some communication gap which could not be revealed by me immediately after delivery of the aforesaid order dated 3/7/2009 by this Hon'ble Court. 3. The content of the affidavit reproduced above does not reflect the correct factual position.
3. The content of the affidavit reproduced above does not reflect the correct factual position. In the first place, no affidavit is filed by Mr. P. Barthakur, the learned senior counsel, who was the counsel who made the statement which prompted me to pass the impugned order. The withdrawal with the liberty to file a civil suit was allowed by me exactly in accordance with the statement made by the learned senior counsel on that day. If mistake of the nature projected by the petitioner was made, what prevented it from approaching this Court. immediately on receipt of the copy of the impugned order instead of approaching the Hon'ble Supreme Court. In the instant case, a copy of the impugned order dated 3-7-2009 was obtained by the petitioner 6-7-2009 i.e., about three days after the order was passed. This can be seen from the copy of the certified copy of the impugned order. If there had been an error as claimed by the petitioner, what had prevented it from bringing such an error immediately to the notice of this Court, is not explained, much less, satisfactorily explained, by it. Instead, the special leave petition was also apparently preferred by it in 2010 i.e. after about 7 months. This conduct on the part of the petitioner is quite strange. This reminds me of the observations of the Apex Court in State of Maharashtra v. Ramdas Srinivas Nayak (1982) 2 SCC 463 , which are found at paragraph 4 of the judgment: 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 Maharahstra before the High Court and ld the arguments for the respondents there and who appeared for Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars 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." We are bound to accept the statement of Judges recorded in their judgment, as to what transpired in court.
It is simply not done. Public policy bars 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." We are bound to accept the statement of 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 statement of facts as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts stated and no one can contradict such statements by affidavit or other evidence. If the 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 with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course the 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 call in question the very fact of making the concession as recorded in the judgment. That apart, the fact that the petitioner and its former counsel are making false statements to obtain favourable order from this Court is evident from the fact that nowhere in the writ petition did the petitioner ever make any prayer for referring the dispute involved in the writ petition to arbitration. There was thus no occasion for the learned senior counsel for the petitioner on that day to seek the permission of this Court for withdrawal of the writ petition with a liberty to approach an "arbitrator to recover outstanding liabilities from the Respondents". The affidavit filed by Mr.
There was thus no occasion for the learned senior counsel for the petitioner on that day to seek the permission of this Court for withdrawal of the writ petition with a liberty to approach an "arbitrator to recover outstanding liabilities from the Respondents". The affidavit filed by Mr. B.K. Deb Roy is conspicuous by misrepresentation of facts: prima facie, this is a case of perjury and/or contempt of court. There is thus absolutely no case of an error apparent on the face of my order for review. No other ground for review is also made out by the petitioner. The review petition is liable to be dismissed with cost. 4. For the reasons afore-mentioned, there is no merit in this review petition, which is hereby dismissed with costs. As there is prima facie case of perjury and/or contempt of court, let a notice be issued to Mr. B.K. Deb Roy, an Advocate of this Bar, to show cause as to why an appropriate proceeding shall not be initiated against him returnable on 29.10.2010. A copy of this order shall be furnished to him immediately. 5. Let a separate Misc. Case be registered. Petition dismissed.