Punjab-Haryana High Court
Tek Chand vs Balbir Singh And Ors. on 18 July, 1995
Equivalent citations: (1996)112PLR456
JUDGMENT G.S. Singhvi, J.
1. Aggrieved by the order dated 12.2.1994 passed by the Additional District Judge, Faridabad, dismissing the appeal of the petitioner against the order dated 20.9.1993 passed by the Senior Sub Judge, Faridabad, the petitioner has preferred this revision petition and has prayed for setting aside the order dated 20.9.1993.
2. From the record, it is revealed that in a suit for permanent injunction filed by the plaintiff-petitioner an application was filed on behalf of the defendants for grant of permission to take manure from manure pits. After hearing the learned counsel for the pasties, the learned Senior Sub Judge allowed the application filed by the non-petitioners and permitted them to lift the manure. This order was passed by the Senior Sub Judge on 20.9.1993 and an appeal against that order was filed by the appellant on 6.11.1993. This appeal was accompanied by an application for condonation of delay. After hearing the parties, the learned Additional District Judge held that the appellant has failed to make out a case for condonation of delay. He, there fore, dismissed the application filed by the petitioner and also dismissed the appeal filed by him against the order dated 20.9.1993.
3. Shri Jain, learned counsel for the petitioner made strenuous efforts to persuade this court to exercise its revisional jurisdictional by arguing that the version given by the petitioner regarding the proceedings of the trial Court on 20.9.1993 should have been accepted by the appellate Court. Shri Jain argued that members of the Bar Association, Faridabad, had gone on strike on 30.9.1993 on account of alleged assault on Shri R.S. Rathore, Advocate and no one was present on behalf of the plaintiff-petitioner when the trial Court pronounced the order on the application filed by the defendant-non-petitioner. But on account of apparent mistake the presence of Shri Rathore came to be recorded in the proceedings sheet of the trial Court. Shri Jain submitted that though the petitioner was present in the court on 20.9.1993, he did not hear of the order permitting the defendant-non-petitioners to lift the manure and what he heard was that the order of status quo was paused by the trial court and if that was not the position, the petitioner would have certainly made an application for certified copy of the order and have challenged the same by filing an appeal. Learned counsel further submitted that immediately after acquiring the knowledge of the order or permission to the defendant-non-petitioner to lift the manure, the petitioner contacted his lawyer who in turn inspected the file after securing a certified copy of the order. Shri Jain pointed out that in pursuance of the direction given by this Court affidavit of the petitioner and his counsel Shri R.S. Rathore have been filed and there is no reason for the court to disbelieve or discard these Affidavits. Shri R.S. Rana, learned counsel for the respondents, submitted that the learned Additional District Judge has after due consideration of all the facts and circumstances recorded a finding that the case set up by the plaintiff for condonation of delay was not credible and, therefore, there is no justification for exercise of revision jurisdiction Under Section 115 of the Code of Civil Procedure.
4. A look at the averments made in the affidavit of the petitioner, Tek Chand, shows that he was present in the court on 20.9.1992 when the order was pronounced by the trial Court. According to him, the court has pronounced the order that the parties to the suit should maintain status quo regarding possession of the suit land. According to him, he conveyed this order to Shri R.S. Rathore, Advocate. He has further stated that the trial Court did not pronounce any order regarding excavation of manure from the manure pit from the suit land. A look at the verification of this affidavit shows that Tek Chand (deponent) has verified the averments made in the affidavit on the basis of his knowledge and belief. Affidavit of Shri R.S. Rathore shows that the Bar Association of Faridabad had gone on strike due to alleged attack on Shri Rathore and he had not attended the court on that date. He further says that Tek Chand informed, him about the order of The court. Verification of this affidavit also shows that the averments made in the affidavit have been verified on the basis of knowledge and belief as well as the information received by the deponent. A look at the order dated 20.3.1993 passed by the learned Senior Sub Judge clearly shows that the learned Senior Judge had passed an order permitting the defendant non-petitioner to lift the manure from manure-pit in unequivocal terms. A comprehensive reading of that order shows that the direction permitting the defendant-non-petitioners to lift the manure was necessary and logical conclusion of the discussion made in the earlier part of the order of the learned Senior Sub Judge. The learned Additional District Judge has, in my opinion rightly observed that the proceedings of the courts have to be believed and no amount of assertion or statement made by the counsel or party to contradict the statement of facts recorded in the proceedings of the court could discredit the record of the court. The order dated 20.9.1993 records presence of Shri R.S. Rathore, as well as Shri M.C. Sharma, Advocates, who were proceeding the contesting parties. If at all Shri Rathore felt that his presence has been wrongly recorded in the order dated 20.9.1993, the least which was expected from him was to file an application before the said Court in order to bring in the notice of learned Senior Sub Judge that his presence has been wrongly recorded and to make a request for correction of the record. No such step was taken by Shri R.S. Rathore, and, therefore, his indirect assertion before this Court that his presence has been erroneously recorded by the learned Senior Sub Judge cannot but be rejected. Another reason for not believing the averments made in the affidavits filed before this Court is that the petitioner and his Advocate are said to have made inspection of the file on 5.11.1993. In this order, learned Additional District Judge observed that no application for inspection of the file was filed by the plaintiff or his counsel on 5.11.1993. Shri Jain has not been able to show to this Court that any such application was filed by the plaintiff him self or his counsel. It is not possible to believe that the petitioner or his counsel made a gratuitous inspection of the file. Therefore, the story set up by the petitioner in his application for condonation of delay has rightly been disbelieved by the learned Additional District Judge.
5. In my opinion, the learned Additional District Judge has not committed any illegality in holding that the order dated 20.9.1993 was pronounced in the presence of the learned counsel for the petitioner and there was no sufficient cause for condoning the delay. In this context, I would do no better than quoting the observation of the Supreme Court in State of Maharashtra v. Ramdas Shrinivas Nayak, A.I.R. 1982 S.C. 1249, in regard to the record of the Court :-
"The Court is bound to accept the statement of the judge recorded in their judgment, as to what transpired in Court. It cannot allow the statement of the Judges to be contradicted by statement 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 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 to the fact that the statement made 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."
6. Shri Jain referred to the decision of the Supreme Court in Collector Land Acquisition , Anantnag v. Mst. Katiji Matiji, A.I.R. 1981 S.C. 1353, in support of his argument that the courts should adopt a lenient approach for condoning the delay in filing of appeal etc. That proposition of law is unexceptionable but the very fact that the apex Court used the word 'ordinarily' in its judgment is clearly indicative of the fact that the question of condoning the delay has to be considered in the facts and circumstances of each case and I am of the opinion that in the facts and circumstances of this case no indulgence deserves to be shown by this Court Under Section 115 of the Code of Civil Procedure in the exercise of discretionary power by the appellate Court Under Section 5 of the Limitation Act. Hence, this revision petition is dismissed.
7. Before parting with the case, I would like to add a word regarding the affidavits filed in this court. Often it is noticed by the Court that affidavit is filed with the verification that the averments made in the affidavit are true and correct to the best of my knowledge and belief and information's received from the party'. Such affidavits are clearly contrary to the provisions of Order 19, Rule 3 of the Code of Civil Procedure. It is hoped that the members of the bar would take notice of the provisions of law while drafting the affidavits of the parties or any of else.