Punjab-Haryana High Court
Hardevinder Singh And Another vs Smt. Nirmal Kaur And Others on 17 March, 2009
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
CR No.6951 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.6951 of 2008
Date of decision: 17.3.2009
Hardevinder Singh and another ......Petitioners
Versus
Smt. Nirmal Kaur and others ......Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. Pritam Saini, Advocate for the petitioners.
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Rakesh Kumar Garg, J.
Challenge in this revision petition is to the order dated 19.11.2008 passed by the Civil Judge (Sr. Division), Kurukshetra vide which application filed by the petitioners for review of the order dated 21.9.2006, was rejected.
As per the averments made in the petition, the plaintiff- petitioners filed a suit for permanent injunction against the defendants. During the pendency of the suit, on the application filed by the parties, the Civil Judge (Jr. Division), Kurukshetra, vide order dated 19.1.2005 appointed Sh. Inderjit Singh as a Referee to resolve the matter in accordance with the terms and conditions as set out in the application. The Referee prepared his award on 31.1.2005. Thereafter, an application was filed by all the parties on 1.2.2005 before the Civil Judge, Kurukshetra, wherein it was prayed that the award passed by the Referee may be ordered to be placed on file and the case may be disposed of in terms of the award passed by the Referee. On 16.2.2005, an application for withdrawal of the suit was also filed by the petitioners. Thereafter, the matter remained pending before the Civil Court. On 16.9.2006, the Civil CR No.6951 of 2008 2 Judge also recorded that the plaintiffs had moved an application dated 16.2.2005 to allow them to withdraw both the cases. On the said application, plaintiff-Indermeet Singh, Jai Singh, Sushil Kumar and Om Parkash had put their signatures and the application was also signed by both the Advocates S/Shri G.S. Aneja and R.K.Goyal. Statements of Jai Chand, Om Parkash and Sushil Kumar were also recorded to the effect that they do not want to pursue the present suit as the parties have compromised outside the Court. Thus, in view of their statement, the suit qua them was dismissed as withdrawn being compromised vide order dated 16.9.2006. On 16.9.2006, defendants No.2, 4, 5, 6 and 7 (sons of Niranjan Singh) filed an application for permission to withdraw the application dated 1.2.2005 alleging that the same was got filed from the defendants by the Mediator/Referee on misrepresentation and also prayed to discard the award dated 31.1.2005.
Notice of the application for permission to withdraw the application dated 1.2.2005 and to reject the award dated 31.1.2005 was given to the counsel for the plaintiffs and the case was adjourned for filing reply. On 21.9.2006, reply to the application for permission to withdraw the application dated 1.2.2005 was filed wherein, it was prayed that the suit may be disposed of or may be decreed as per the award passed by the Referee. According to the averments made in the present petition, though the application filed by the defendants was contested by the plaintiffs, yet the Civil Judge (Sr. Division), vide impugned order dated 21.9.2006 wrongly recorded that both the counsel for the parties have stated at the Bar that the Referee has submitted the award beyond jurisdiction after intermingling the other matters also, hence, the award be set aside and the suit be decided on merits and the Civil Judge (Sr. Division) in view of the aforesaid alleged submissions made by the learned counsel for the parties, CR No.6951 of 2008 3 ordered accordingly.
The petitioners moved an application under Order 47 Rule 1 read with Section 151 CPC for review of the impugned order dated 21.9.2006 passed by the trial Court on the ground that no concession was given by their counsel which has been rejected by the trial Court vide impugned order.
Challenging the aforesaid order, learned counsel for the petitioners contended at the motion stage that no concession was made by the counsel for the petitioners before the trial Court and to support his submission, affidavit of Mr. G.S. Aneja, Advocate, who was representing the petitioners before the trial Court, was filed. In this affidavit, Mr. G.S. Aneja, Advocate has stated that on 21.9.2006 he was not present in the Judicial Complex, Kurukshetra and on that day he had gone to Judicial Complex Pehowa. Moreover, he never appeared in the present case on that day and it was his son Mr. B.S. Aneja, Advocate who had appeared in the case just to file reply to the application and in fact the case was not fixed for arguments and no concession was made by him.
In view of the affidavit of Mr. G.S. Aneja, Advocate, the comments of the Presiding Officer of the Court i.e. Civil Judge (Sr. Division) Kurukshetra were called for and the same were received vide letter No.1698 dated 3.3.2009 from the District and Sessions Judge, Jind. As per the comments of the Presiding Officer, Sh. G.S. Aneja, Advocate had appeared in the case and that is why his presence was shown in the order dated 21.9.2006.
I have also perused the application filed by the petitioners for review of the order dated 21.9.2006 (Annexure P-8). In this application also, the only ground taken by the petitioners to review the impugned order dated 21.9.2006 is that no such concession was made as learned counsel CR No.6951 of 2008 4 for the petitioners was not present. It is further the stand of the petitioners that Mr. B.S. Aneja, Advocate son of Mr. G.S. Aneja was present in Court who had filed some reply and amended memo of parties.
After going through the comments and perusing the facts on record, this Court is fully satisfied that the stand taken by the petitioners that Sh. G.S. Aneja, Advocate was not present and the Court had passed the order without any concession given by the learned counsel for the plaintiff-petitioners, is wrong. If no concession was made and the counsel had not appeared in the case and the Presiding Officer has recorded the same on his own the learned counsel for the petitioner could have easily brought this matter to the knowledge of the District Judge or this Court. Even the petitioners whose rights are alleged to be effected adversely have not made any complaint to the higher authorities in this regard. Neither Sh. G.S. Aneja, Advocate nor the petitioners have made any such complaint. The Hon'ble Supreme Court in State of Maharashtra v. Ramdas Shrinivas Nayak and another AIR 1982 SC 1249 has held as under:
"The Court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. It cannot allow the statement of the Judges to be contradicted by statements at the bar or by affidaivt 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 CR No.6951 of 2008 5 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. 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."
Thus, the Court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in the Court and it 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.
In Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273, it has been held by the Hon'ble Supreme Court that the power to review is not an inherent power and it must be conferred by law either specifically or by necessary implication.
In Parsion Devi v. Sumitri Devi 1997(4) RCR (Civil) 458 (SC) it was held by the Hon'ble Supreme Court that review of a judgment may be if there is a mistake or an error apparent on the face of the record. In CR No.6951 of 2008 6 BSNL & others v. M/s Subash Chandra Kanchan and another 2006(4) RCR (Civil) 499 (SC), it has held that a concession made by an Advocate is binding on the party whom he represents, but a wrong concession on legal question may not be binding.
In view of the authoritative judgments of the Hon'ble Apex Court, I am of the view that there is no merit in this revision petition and there is no ground/error on the basis of which the impugned order could be reviewed. The ground taken by the petitioners that no concession was made by the learned counsel for the petitioners as he was not present in the Court, cannot be accepted in view of the judgment of the Hon'ble Supreme Court in Ram Das's case (supra).
Thus, I find no merit in this revision petition.
Dismissed.
March 17, 2009 (RAKESH KUMAR GARG) ps JUDGE CR No.6951 of 2008 7 CR No.6951 of 2008 8