Jammu & Kashmir High Court
Regional Manager And Ors. vs Abdul Hamid Guroo And Ors. on 21 August, 2003
Equivalent citations: AIR2004J&K87, AIR 2004 JAMMU AND KASHMIR 87
Author: Nisar Ahmad Kakru
Bench: Nisar Ahmad Kakru
ORDER Nisar Ahmad Kakru, J.
1. Petitioners, functionaries of Central Bank of India, defendants in the Civil Original Suit (hereinafter defendant-Bank) having occupied the premises situated at S.R. Gunj Srinagar belonging to the respondents, plaintiff in the suit (hereinafter plaintiff-respondent) on monthly rental, are alleged to have on the one hand retained the premises for use and occupation, subsequent to the termination of the lease and on the other, failed to pay the rent, thereby giving rise to a civil dispute, consequently, a suit for recovery of Rs. 5,06,850.00 (rupees five lac six thousand eight hundred and fifty). The suit was filed on 3-7-1992 in this wing of the High Court which was transferred to the Court of learned District Judge, Srinagar, for disposal in accordance with law by order dated 26-10-1995 which culminated in an ex parte decree. Being aggrieved, the ex parte decree was sought to be set aside through an application filed on 18-7-1996. Application was allowed by judgment dated 19-8-1997 subject to payment of costs to the tune of Rs. 500/- besides, Rs. 1100/-imposed as costs on an earlier occasion by this Court upon he defendant-Bank vide order dated 26-10-1995 totalling to Rs. 1600/-. Costs were not paid within the period stipulated. Consequent upon such failure, the application was dismissed on 9-9-1997 in default of payment of costs. The said order was sought to be received on the ground that defendant-Bank was not given notice of the date fixed for judgment. The contention is vehemently controverted by learned counsel for the plaintiff-respondents.
2. The case has a chequered history. The plaintiff-respondents filed the suit in the High Court on 3-7-1992 when the District Courts had limited pecuniary jurisdiction. Defendant-Bank was put on notice but chose not to appear despite service, consequently, set ex parte on 1-9-1993. The plaintiffs-respondents were directed on 7-10-1993 to adduce evidence. Evidence was produced and recorded but judgment could not be pronounced because in the meantime an application was filed on 11-7-1994 for setting aside the ex parte proceedings. In between one of the CMPs filed by defendant-Bank was dismissed by the Court for want of prosecution. It was sought to be restored by an application bearing No. 133/94. Application was allowed and CMP restored by -order dated 5-5-1995 subject to payment of costs of Rs. 300/-. Application filed on 11-7-1994 for setting aside the ex parte proceedings was allowed by order dated 26-10-1995 subject to payment of costs of Rs. 1100/- and the case was transferred to the District Court Srinagar for disposal in accordance with law. Costs were not deposited, as a consequence thereto the learned District Judge vide his order dated 6-3-1996 maintaining the ex parte proceedings against the defendant-Bank, heard the arguments finally in ex parte on 4-5-1996 and decreed the suit on 5-6-1996. Thereafter the suit entered into a decisive phase when the defendant-Bank filed an application on 18-7-1996 seeking reversal of the decree. Application was allowed on 19-8-1997 subject to payment of costs of Rs. 500/- to be paid before 6-9-1997. Costs were not paid, obviously, the decree remained unaltered, consequently a review petition was filed on 25-9-1997 which came to be disallowed by order dated 30-12-1997, resultantly, this revision petition.
3. The objection to the maintainability of Review petition is raised by learned counsel for the plaintiffs-respondents simply to be rejected, for, law is no more res integra that when a party is aggrieved of an order on the ground that Court has not recorded the order correctly, the remedy to the aggrieved person is to seek review of the order before the Judge who has passed the order, thus recourse to remedy of review being permissible the objection cannot sustain, immaterial whether the defendant-Bank has a case for review or not that depends on merits of the matter to be gone into. To succeed in the petition one of the grounds urged in the review petition is that Mr. N.A. Khan Advocate had no power to represent the Bank. The facts of this case are near similar to the facts of a case decided by the Supreme Court titled Smt. Padmavati Devadatta Kamat v. Shri Vijaykumar Narayan Mehandale, AIR 2002 SC 1262. How the Court has dealt with the issue, relevant portion of the judgment may be extracted :
"..... Those applications apart, a review petition was also filed seeking the review of the order dated 11th September, 2001 on the ground that they were not properly represented by their counsel and withdrawal of the appeal was without instructions from them. Though in the normal course grounds raised in the review petition would not have been considered as sufficient grounds to entertain a review petition, still with a view to grant an opportunity to the petitioner who wanted to argue the case himself, as an exceptional case, we decided to allow the review petition and heard the 4th appellant Dinesh Devadatta Kamat on merits of the case at length . . . ."
It is clear that Supreme Court was persuaded to consider the ground of not being properly represented because case was treated to be an exceptional one in view of the fact that petitioner was not represented by an Advocate and case was argued by the petitioner himself, otherwise mandate of the judgment makes it manifestly clear that review petition cannot be entertained on such ground.
4. Let me proceed on the assumption that Mr. N.A. Khan did not have any instructions from Mr. Bashir to appear in the case on his behalf. Nonetheless the cumulative effect of the attending circumstances has to be weighed for purposes of the knowledge of the relevant events. In this behalf reference to the affidavit of Mr. Khan becomes imperative, Its perusal reveals that the fact of delivery of judgment was communicated by him to Mr. Tuba Manzoor, junior to Mr. Bashir who was specifically told that next date in the case was fixed on 6-9-1997, by which date costs were to be deposited. Mr. Tuba does not dispute the veracity of deposition of Mr. Khan but pleads inaction because of marriage of his sister. He has also attempted to show that there was delay in communication and states that he had received the information in last days of August, 1997. Although this version does not receive support from Mr. Khan's affidavit, still there were many days to go till 6-9-1997. Undisputedly, he is a practising Advocate. He knows the consequences of failure to respond to the direction. He is assisting his senior in the cases. He does not say that in this case he was not assisting his senior. He has stated that his senior was not available at station. The averment runs contrary to the stance of the defendant-Bank reflected in the review petition which does not indicate that Mr. Bashir was out of station. Height of inconsistency is that Mr. Tuba says that he was busy with arrangement of the marriage of his sister, therefore, could not attend the Court, then how he could receive the information from Mr. Khan in the Court about the pronouncement of judgment. He doesn't say when marriage of his sister was scheduled and when did it really materialize. Suppression of relevant information speaks volumes. It is worthwhile to note that defendant-Bank has not said that it had discharged all those obligations which it was required to. In absence of such averment the defendant-Bank was supposed to be in attendance. More so, it was within the knowledge of the authorities of the Bank that a decree had been passed against them and any lapse in the process of seeking reversal of the decree would render them liable to pay the decretal amount, therefore, defendant-Bank was required to go to the Court and inquire about the proceedings and watch the same. The defendant-Bank in the review petition has said that its counsel had appeared in the case twice but it does not identify the dates on which the counsel had appeared. These facts suggest that the defendant-Bank has nothing in its armory to justify the negligence and inaction. In the revision petition the defendant-Bank has come up with a different case indicating that counsel of the Bank was at Jammu those days. Apart from the fact that this Court is required to decide the revision on the basis of pleadings and material which was before the trial Court, yet the alternative, case now being raised on the ground of non availability of the counsel has worsen the stand of the Bank because it contradicts its stand taken in the review petition wherein it is averred that counsel had appeared. Question is that when learned counsel was at Jammu those days how could he appear. Be that as it may, it is clear that the Bank had the knowledge that counsel was out of station, therefore, it was obligatory upon the Bank to make alternative arrangement which was admittedly not made. There is a mention in the revision petition that one Mr. Sani an officer of the Bank had attended the Court. Although the contention is being raised for the first time in the revision petition to justify inaction yet date of alleged appearance is not given. It is also seen that the Bank was set ex parte on several occasions. In addition to that the defendant-Bank failed to appear on 30-6-1997 despite the fact that the notice of said future date was given in the open Court on 3-6-1997 at once after hearing the arguments. The casual approach on the part of the defendant-Bank depicts that it has concentrated its efforts to defeat the suit by delay and not by contest. These facts hardly offer any explanation much less reasonable or satisfactory for non appearance of the defendant-Bank, thus, following finding by the trial Court :
"...........There are no cogent, reasonable and sufficient ground shown by applicants that they were prevented from complying with the direction of the Court within the specified time. The applicants have failed to show sufficient cause to enlarge the time for complying with the direction of the Court contained in the order dated 9-8-1997 ........ the application being devoid of any merit is hereby dismissed."
5. In the given facts and circumstances I don't find any reason to take a contrary view, for negligence of defendant-Bank is writ large. More so, law is settled that even if a different view on facts is possible it should not be opted for in exercise of the revisional jurisdiction as is held by the apex Court in Bhojraj Kunwarji Oil Mill & Ginning Factory v. Yograjsinha, AIR 1984 SC 1894 Para 4 may be noticed :
".......... Therefore, we are of the opinion that both the learned Assistant Judge and the High Court were not justified in interfering with the order of the trial Court, in exercise of the revisional jurisdiction on the only ground that a different view on facts elicited was possible. This approach hardly permits interference in exercise of revisional jurisdiction."
6. The defendant-Bank has filed a composite application under Order 47, Rule 1 and Section 151 of CPC. Power of review may be exercised if there is an error apparent on the face of the record or for any other ground as envisaged by the relevant provision but power of review is not an appellate power so that evidence is revaluated to dig out errors to be corrected, therefore, indulgence is not called for. As far as exercise of power of revisional jurisdiction goes it is purely discretionary but has to be exercised along recognized principles and not arbitrary and one of the limitations imposed by the Courts on themselves is that they will not allow themselves to be turned into Courts of appeal to go for reappraisal of evidence so as to set right errors of fact. More so, exercise of inherent powers is permissible when ends of justice demand so or if it is necessary to prevent the abuse of process of Court but there are no ends of justice to be served by extending the time because it will have the effect of relegating the suit to its infancy for no fault of the plaintiffs-respondents who are justifiably hopeful that decision will attain finality after having pursued the suit for more than a decade. What answer this Court has to the plaintiffs-respondents who have pursued their case through and through with vigour and diligence and have in no way faltered. On the contrary the defendant-Bank has taken the matter so casually consuming the time of the public in restoration proceedings. On such conduct the defendant-Bank does not deserve any sympathy of the Court. On top of all there has to be some reason to persuade the Court for exercise of inherent power and fact remains that defendant-Bank has failed to show any cause much less sufficient one.
7. Learned counsel for the defendant-Bank has vehemently argued that part of the relief is barred by time prescribed by law of limitation. The contention has the answer from the judgment of the apex Court in Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907 at 910, Para 8 may be noticed:
"Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it had acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities ....."
The same view was reiterated by the Supreme Court in Sri Budhia Swami v. Gopinath Deb reported in 1999 (5) Supreme 49 : (AIR 1999 SC 2089) where claim was laid beyond the prescribed period of limitation. Thus it emerges from the ratio of judicial pronouncements supra that if She suit is barred by time, remedy is appeal against the decree and not review or revision.
8. A great deal of controversy is raised in this petition about the truthfulness of the order dated 30-6-1997 indicating that defendant-Bank's counsel had appeared before the Court, conversely, order aforementioned recorded by the Court reveals that the judgment could not be pronounced because parties were not present and case was adjourned to await their appearance. Apparently, the contention of the defendant-Bank runs contrary to the judicial record. What is the scope of such challenge, the guidance is readily available from the judgment of the apex Court in State of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249 Para's 4 and 7 may be noticed :
"......... 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 countries 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 the facts so stated and no can contradict such statements by affidavit or other evidence."
"So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it. except before the Judge himself, but nowhere else."
It is clear from the judgment supra that if a party disputes the correctness of the order the remedy is to approach the same Judge and none else and it is for that very Judge to say whether he has correctly recorded the order. The defendant-Bank has invoked the remedy which stands clinched with the finding :
"Upon anxious consideration of the matter and respective contentions advanced by the learned counsel for the parties and authorities cited by them, I am of the opinion that the contentions raised by learned counsel for the applicant do not hold any water and are devoid of any merit and substance. . . . ."
The finding is unambiguous to the effect that the proceedings were correctly recorded by the learned Judge. Applying ratio of the judgment supra it is the last word on the issue and correctness of the order recorded by the Court cannot be challenged for the simple reason that presumption of regularity attaches to the orders of the Court and such presumption can neither be contradicted or brushed aside by mere statement of a party. In view of settled position of law the dispute raised about correctness of the orders of the Court is nothing but a camouflage, conversely, it is evidenced that defendant-Bank had wilfully opted for non appearance on 30-6-1997, the date fixed by the Court for judgment in presence of the counsel for the parties.
9. Next most relevant issue is whether requirement of service of notice of the date fixed for judgment has any recognition in law. To answer the question it becomes imperative to extract the Rule 1, Order XX of Civil Procedure Code (CPC for short).
"1. Judgment when pronounced : (1) The Court after the case has been heard, shall pronounce judgment in open Court, either at once or on some future day, of which due notice shall be given to the parties or their pleaders."
The fate of the Revision Petition turns around the interpretation of the aforementioned rule and the principle behind the rule is that parties must have the notice of the date and a short but important question arises whether notice in the open Court to the counsel or parties amounts to due notice. Before question is addressed to, it is pertinent to refer to the judgment of the Division Bench of this Court in Mst. Saja v. Ghulam Ud-din Teli reported in 1998 Srinagar 310. Para 3 reads :
"3. Here arises a question as to whether listing of a case can be presumed to be sufficient notice and to answer this question it is relevant to notice that it is an age old practice in this Court that necessary particulars of a case, which include, number, title and names of the counsel, are reflected in the regular cause list and cases are listed for admission, orders, preliminary hearing and final hearing according to the said procedure and the learned counsel for the appellant is fully aware of this practice which is not rule of law but rule of practice, whereas, procedure and excuse offered by the learned counsel for the appellant, if held tenable, in such eventuality, notice is to be issued for every date when the case is listed before the Court and this proposed practice if evoked is bound to protract the litigation unnecessarily and with a view to rule out possibility of any confusion, we make it clear that listing of a matter in the regular cause list, giving necessary particulars of a case, is sufficient notice to the parties, question answered accordingly."
From perusal of the ratio of the judgment it is clear that listing of the matter in the regular cause list by the Registry in a case pending before the High Court giving relevant details is sufficient notice to the parties. Rule 1 Order XX of CPC does not envisage so but it is by help of interpretation placed upon the rule by the Court that it is read like that. There being no practice of issuance of weekly cause lists by the lower Courts, the judgment aforementioned has no application but it has relevance to show that by help of interpretation listing of the case in a regular cause list of the High Court is recognized as a valid and sufficient mode of service. Being conscious of legal position that a judicial decision has the character of a precedent which falls within the law creating functions of this Court and such precedents having the force of law have to govern not only the case of the parties to the lis but will also apply to all other similarly circumstanced cases, therefore, Court has to be careful while creating precedents and regard has to be had to the fact that Courts exist for the society and objective is to do justice to the people, therefore, the interpretation should not be such which will help a litigant to play hide and seek, resultantly, loss of faith in the system, Courts and provisions of law. Needless to say that Courts have to rise to the occasion to overcome the procedural wrangles, so that rights of the people are speedily adjudicated upon and justice is administered and interpretation has to be with that intent. Reverting to the facts of the case, it is clear that when arguments were heard on 3-6-1997 case adjourned for pronouncement of judgment in presence of counsel for the parties to 3-6-1997 which shows compliance of the aforementioned rule in its letter and spirit. True it is that Court had adjourned the case thereafter to wait for appearance of the parties but it is purely a concession and if the parties having chosen not to avail of such concession, Court cannot be said to have faultered by having pronounced the judgment in absence of parties, for, requirement of the rule is that notice of the future date fixed for pronouncement of judgment must be given to the parties which obligation stands duly discharged by the Court. It is apposite to mention here that it is not a case where opportunity of hearing is denied but it is a case where opportunity is not availed of. Situated thus pronouncement of judgment in absence of Defendant-Bank does not violate the mandate of Rule 1 Order XX of CPC. I have already said that the purpose of the rule is to give notice to the parties and giving a future date for judgment to the parties or their counsel at once after hearing the arguments is the most effective mode of notice which needs no further proof excepting that the fact of giving a future date for judgment must be substantiated by record of the Court and if the party opts for oblivion despite such notice it cannot escape the consequences of non appearance. Situation is different if Court reserves the judgment without giving any future date, in such eventuality, it is incumbent upon the Court to give notice of the future date to the parties. Any other interpretation will amount to breach of Rule 1 Order XX.
10. In the aforementioned backdrop, this Revision petition is dismissed along with CMPs. No order as to costs. Record to be remitted.