Calcutta High Court
Nischintapur Tea Co. Ltd vs Subrata Sen. & Ors on 5 August, 2010
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose, Harish Tandon
1
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
ACO NO. 47 OF 2010
APOT NO. 188 OF 2010
CA NO. 53 OF 2010
CA NO. 302 OF 2007
In
CP NO. 252 OF 1985
NISCHINTAPUR TEA CO. LTD.
VERSUS
SUBRATA SEN. & ORS.
ACO NO. 48 OF 2010
APOT NO. 189 OF 2010
CA NO. 53 OF 2010
CA NO. 302 OF 2007
In
CP NO. 252 OF 1985
SUBRATA SEN. & ANR.
VERSUS
NISCHINTAPUR TEA CO. LTD. & ORS.
BEFORE
THE HON'BLE JUSTICE PINAKI CHANDRA GHOSE
&
THE HON'BLE JUSTICE HARISH TANDON
Date : 05.008.2010
The Court :
The short question involved in this appeal is whether the court of appeal can
interfere with the decision rendered by the Judge on recollection and/or assimilation of
the happening of event transcribed in the order.
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The appeal is filed against an order rejecting an application for correction of an
order dated April 12, 2007 dismissing a company application no. 302 of 2007 as not
pressed in stead of dismissal of a company petition no. 252 of 1985.
The predecessor-in-interest of the present appellants initiated a proceeding under
section 397 and 398 of the Companies Act being company petition no. 252 of 1985
seeking various reliefs as would appear therefrom.
An interlocutory application was taken out in which the company court passed an
order dated June 21, 1985 directing the maintenance of status quo in respect of the
shares of the company being the subject matter of the dispute.
During the pendency of the said company petition the original applicant,
predecessor-in-interest of the present appellants, died and substitution was duly made.
It further transpires that some of the substituted heirs also expired and an application to
such effect was made.
While the said company petition was pending before the Hon'ble High Court one
Ajit Kumar Agarwal initiated proceeding before the Company Law Board for recording his
name as a share holder of the company. Amidst pendency of the said company petition,
the parties thereto settled their disputes and compromise was effected in the form of
Memorandum of Understanding on February 26, 2007.
Pursuant to such Memorandum of Understanding, so entered into, the appellants
took out a judge's summon for an order that the company petition no. 252 of 1985 be
treated as withdrawn and affidavit in support of the judge's summon was filed and
registered as company application no. 302 of 2007.
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By an order dated April 12, 2007 the company court dismissed the company
application no. 302 of 2007 as not pressed. a certified copy of the said order dated April
12, 2007 was obtained by the company within few days of the said order. The said
matter was neither mentioned nor did appear before the company court thereafter.
However, the application filed by the said Ajit Kumar Agarwal before the Company
Law Board was dismissed on June 29, 2009 for non prosecution. The said Ajit Kumar
Agarwal thereafter filed an application for restoration of the said application which was
eventually dismissed and an appeal filed against the said order is pending.
While the said application for restoration filed by the said Ajit Kumar Agarwal was
pending before the Company Law Board he filed a suit being Civil Suit no. 10 of 2010
before this Hon'ble Court on January 27, 2010 challenging the transfer of the various
shares by the company in gross violation of an order of status quo passed as far back as
on January 21, 1985 in the said company petition no. 252 of 1985. He further seeks a
declaration that he is share holder of the company.
A company application being CA no. 40 of 2010 was also filed by the said Ajit
Kumar Agarwal for addition as party to the said company petition no. 252 of 1985. The
said application was taken out on January 30, 2010.
To counter the situation the appellants filed an application being CA no. 53 of
2010 on February 1, 2010 praying for the correction of an order dated April 12, 2007. It
is contended in the said application that there is a mistake occurring in the order dated
April 12, 2007 to the effect that in stead of recording dismissal of CP no. 252 of 1985 it
is recorded CA 302 of 2007 is dismissed as not pressed. The company court passed a
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direction for filing affidavits in both the company applications being 40 of 2010 filed by
the said Ajit Kumar Agarwal for his addition as a party and another being CA no. 53 of
2010 filed by the appellants for correction of the order dated April 12, 2007.
By an impugned order the Hon'ble First Court dismissed both the applications i.e.
an application filed by the said Ajit Kumar Agarwal for being added as a party to the
main company petition and the petition filed by the appellants for correction of the order
dated April 12, 2007.
Against the said order three appeals have been filed, one by Nischintapur Tea Co.
Ltd. being ACO no. 47 of 2010 another by Subrata Sen & Anr. being ACO no. 48 of 2010,
in both the appeals challenge is thrown against such part of an order dated March 11,
2010 by which an application for correction was rejected by the Hon'ble First Court and
other appeal filed by Ajit Kumar Agarwal being ACO no. 41 of 2010 challenging the other
part of an order dated Mach 11, 2010 so far as it relates to the dismissal of their
application for addition.
Though we do not wish to hear the appeal filed by Ajit Kumar Agarwal being ACO
41 of 2010 as the fate of the said appeal is in some way dependant upon the decision
that would be passed in the present two appeals but for the purpose of doing the
complete justice we have allowed the learned Counsel appearing on behalf of the said
Ajit Kumar Agarwal, appellant in ACO no. 41 of 2010 to address this court in the
aforesaid two appeals as well.
Thus we confined ourselves to the only question as emerges from the respective
submissions of the Counsels and stated in the first paragraph of this judgment. We are
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not deciding any right of the said Ajit Kumar Agarwal to be added as a party in the said
company petition in the instant appeal.
Mr. S. B. Mukherjee, learned Senior Counsel appearing on behalf of the
appellants submitted that the impugned judgment cannot be sustained as having
passed on surmise and conjectures. He further submits that from the four corner of the
application for withdrawal being CA no. 302 of 2007 it is undisputed that the same is for
withdrawal of the main company petition being CP no. 252 of 1985 rather the heading of
the applications suggests that the same is filed for withdrawal of the main company
petition.
He further submits that there cannot be any doubt in the mind of the Hon'ble
Judge that the parties before him prayed for withdrawal and/or dismissal of the main
company petition as not pressed and the mistake has crept in the said order dated April
12, 2007 in recording the dismissal of the company application no. 302 of 2007 in stead
of CP no. 252 of 1985.
Mr. S.B. Mukherjee, learned Senior Counsel has strenuously argued that there is
no fetter on the part of the court to correct its own order being the court of record since
the mistake is apparent on the face of the record and such mistake is capable of being
corrected by not only invoking the provision of section 152 but also section 151 of the
Code of Civil Procedure.
Mr. S. B. Mukherjee, learned Senior Counsel further submits that the court in
seisin of an application under section 397 and 398 of the Companies Act 1956, by
invoking an inherent power under Rule 9 of the Companies (Court) Rules 1959 may give
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such directions or pass such orders as may be necessary. He argues that the provisions
of the Code of Civil Procedure applies to such proceeding in view of Rule 6 of the said
Rules. Such an application cannot be withdrawn without leave of the court as envisaged
under Rule 88(2) of the said Companies (Court) Rules 1959. He thus contends that for
such reasons an application for withdrawal of the said company petition was filed.
He placed reliance upon the judgment reported in AIR 2008 SC 225 (Niyamat Ali
Molla Vs. Sonargon Housing Co-operative Society), (2000) 1 SC 666 (M.M. Thomas
Vs. State of Kerala & Anr.) and (2009) 5 SCC 791 (Commissioner of Customs and
Central Excise Vs. Hongo India Pvt. Ltd. & Anr.) that not only the mistake committed
by the court is capable of being corrected but the mistake on the part of an Advocate is
also capable of being corrected by the court.
He further cited a judgment reported in 1885 (XXX) Chancery Division 239
(Mellor Vs. Swire) that it would be perfectly shocking if the court could not rectify an
error which is really the error of its own minister. By invoking the doctrine "Actus curiae
neminem gravabit", the act of court could do no harm to litigant. Mr. Mukherjee
contends that such a mistake which is a mistake apparent on the face of the record is
allowed to stand would occasion grave injustice to the litigant, and should be resorted to
the position he would have occupied but for that mistake he relies upon a decision
reported in AIR 1966 SC 1631 (Jang Sing Vs. Brij Lal & Ors.), AIR 1922 Privy
Council 269 (Jai Berham & Ors. Vs. Kedar Nath Marwari & Ors.), AIR 1974 Cal 231
(Union of India Vs. Kamal Kumar Goswami & Ors.).
Mr. S. B. Mukherjee, learned Senior Counsel further cited a judgment reported in
(2009) 5 SCC 791 (Commissioner of Customs and Central Excise Vs. Hongo India
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Pvt. Ltd. & Anr.) that the High Court possesses all powers to correct the errors
apparent on the face of the record. Apart from the power it is a duty of the High Court to
correct any apparent error in respect of any order passed by it. He thus, submitted that
the error committed by the court is to be rectified nunc pro tunc.
Mr. S. N. Mukherjee, learned Senior Counsel appearing for the said company i.e.
Nischintapur Tea Co. Ltd. adopts the arguments advanced by Mr. S. B. Mukherjee,
learned Senior Counsel and further contended that mistake which occurred in an order
dated 12th April 2007 is accidental and/or clerical and is capable of being corrected not
only under the provision of section 152 of the Code of Civil Procedure but also under
section 151 of the Code.
Mr. Pratap Chatterjee, learned Senior Advocate appearing on behalf of the said
Ajit Kumar Agarwal submits that the Hon'ble First Court has passed the impugned order
as it could not recollect the happening except what is transpired in the order dated 12th
April, 2007. He further submits that the application filed by the appellant for correction
of an order after a period of three years, though the certified copy of the said order stated
to have been obtained within a month, cannot be entertained or in other words is not
maintainable. He further contends that in the meantime a right has been created in
favour of the third party and such right cannot be taken away in the garb of the
correction of an order on account of a clinical, clerical and typographical mistake and/or
omission.
Mr. Chatterjee, learned Senior Counsel strenuously argued that the appellate
court should not interfere with an order passed by the Hon'ble First Court on the basis
of the recollection of the happening of event in court which transpires on the date of
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passing of the said order. He further relies upon a judgement reported in AIR 1982 SC
1249 (State of Maharashtra Vs. Ramdas Shrinivas Nayak) that the court should not
embark into an enquiry as to what transpires on a day when the said order dated 12th
April 2007 was passed by the Hon'ble First Court.
Mr. Chatterjee further relies upon a judgment reported in (2004) 10 SCC 598
(Ram Bali Vs. State of Uttpar Pradesh) and submits that the party aggrieved by an
erroneous recording n the judgment by the court, the party should approach the same
court promptly and without any delay to have it corrected. He further submits that in
the instant case there has been lapses on the part of the appellant in approaching the
court promptly admittedly after a gap of more than three years such an application
should not be entertained.
Mr. Chatterjee further relies upon a judgement reported in AIR 1952 Calcutta 86
(Bela Debi Vs. Bon Behary Roy & Ors.) for the proposition that the power of the court
to correct the clerical and/or accidental and/or typographical and/or arithmetical error,
mistake and/or omission is vested under section 152 of the Code of Civil Procedure but
such power cannot be extended to resolve the controversy and/or disputes and/or a
decision as to what the rights intended or did not intend to do.
Mr. Chatterjee further relies upon a judgment reported in (1993) 2 SCC 185
(Salil Duttta Vs. T.M. Pvt. Ltd.) that if the court finds that the client is an innocent
litigant, he cannot suffer for the negligence and/or misdemneour of the advocate but the
said principle can be extended to a restrict villager but not to a private limited company
having head office in metropolitan city and administered and managed by the educated
persons.
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He further argues that an application under section 397 and 398 of the
Companies Act 1956 is maintainable at the instance of the legal representatives of the
deceased member whose name is still on the register of the members of the company
and relies upon a judgment reported in AIR 1990 SC 737 (World Wide Agencies Pvt.
Ltd. & Anr. Vs. Mrs. Margarat T. Desor & Ors.). He further relies upon a judgement of
the Madras High Court reported in (1992) 74 Comp. Cases 30 (L. RM. K. Narayan Vs.
Pudhuthotam Estates Ltd.) for the proposition that once a petition under section 397
and 398 of the Companies Act 1956 is validly presented any shareholder can ask for his
substitution even though he does not hold the requisite percentage of shareholding of
the company and even if the original applicant does not intend to proceed with the said
company petition the court does not dismiss the action simpliciter but may deal with the
action on merit or permit such person to take over the prosecution of the petition and to
decide the allegations made in the said petition.
No doubt, an application under section 397 and 398 of the Companies Act, 1956
was taken out by the predecessor of the present appellant namely Amita Sen, since
deceased. Several interlocutory orders were passed on the applications field by the said
original applicant which includes an order dated June 21, 1985 by which the court
directed maintenance of the status quo with regard to the shareholding of the company
until further orders. The court further appointed a Special Officer for the purpose of
making an inventory of the companies books of accounts commencing from the year
1980.
While such application being company petition no. 252 of 1985 was pending, the
original applicant, Amita Sen, died and the appellants along with one Mr. Ranjan Sen
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was substituted. The said substituted applicant thereafter filed a company application
no. 302 of 2007 as it appears from the judge's summon, for an order for treating the
company petition as withdrawn and all applications connected thereto, to be not
pressed. The judge's summon is accompanied by an affidavit in support thereof, where
some disputes have arisen as to the incorporation of certain paragraphs which do not
find place in the original affidavit filed with the court but have been relied upon by the
appellants on a bona fide impression that such affidavit was filed with the court. We are
not concerned with such controversy as we find that those are not so vital and material
in deciding the instant application. We are proceeding on the basis that the judge's
summon has been taken out and an affidavit in support thereof has been filed which
from its tenet and purport is an application for withdrawal of the main company petition
being CP no. 252 of 1985.
The company application no. 302 of 2007 from its very first page is an application
for withdrawal of the company petition no. 252 of 1985 and all connected applications.
Even from prayer (a) the same prayer is reflected. Thus there cannot be any dispute
and/or controversy over the purport of the said application which is primarily an
application for withdrawal of the main company petition no. 252 of 1985.
The said company application no. 302 of 2007 appeared before the Hon'ble First
Court and by an order dated April 12, 2007 as it appears from the recording made
therein, that the said company application no. 302 of 2007 itself was dismissed as not
pressed and not the company petition no. 252 of 1985.
The controversy which needs to be decided and the parties are not ad idem is
whether the said company petition no. 252 of 1985 was intended to be dismissed as not
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pressed or the said company application no. 302 of 2007 was in fact dismissed as not
pressed.
The Court of Appeal while dealing with the situation where the court below have
recorded the happenings of the event occurred on the day of passing of the order which
is reflected in the order itself, should not embark on an inquiry and find out the veracity
of such happening. The Appellate Court is bound to accept the statement of the judges
recorded in their judgment as to what transpired in the court and contradiction to such
statement made by the judge should not be allowed by affidavit or other evidences. The
judge states in its judgment something that happens or done in the court and that
should be treated as the last word on the subject statement of fact recorded in the
judgment are conclusive of the fact so stated and should not be readily interfered unless
such recording per se without looking any other affidavit or evidences, is illogical and
does not stand for a moment's scrutiny.
The party if it feels that such recording of statement of fact is wrongly recorded it
is an incumbent on its part to approach the said judge promptly and without any delay
or before the same feeds the memory and to invite the attention of the said judge that
there is an error. We are not unmindful that in a case where the concession is recorded
as statement of fact by the judge in its order the Appellate Court may permit obviously
on rare of rarest and/or appropriate cases to resile from such concession only on the
ground that such concession was made on a wrong appreciation of law and have led to
gross injustice but still then he cannot call any question the very fact of making the
concession as recorded in the judgment (see AIR 2003 SC 511), AIR 2003 SC 4043.
There is no dispute with regard to such proposition of law as submitted by Mr. S. B.
Mukherjee, Senior Advocate that the court has power to rectify its mistake if the said
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mistake is clerical, clinical and ministerial and there has been an omission or
typographical error which does not require any reconsideration of a statement of fact
either by affidavit or evidence.
The rectification and/or correction was sought for by the appellant on the
following facts :
"6. In the aforesaid circumstances, the then petitioners including the applicants had
caused an application to be prepared and filed before this Hon'ble Court for withdraw of
the company petition being CP No. 252 of 1985 and all applications connected thereto.
This company application was affirmed and filed before this Hon'ble Court on 5th April
2007. The Judge's Summons was made returnable before the Hon'ble Company Court on
12th April 2007. A copy of the Judge's Summons along with a copy of the affidavit in
support of the Judge's Summons are annexed hereto and collectively marked "A". The
petitioners in CA NO. 302 of 2007 had engaged on Mr. Sushil Kumar Saha as the
Advocate-on-Record for moving the said application and for withdrawal of CP no. 252 of
1985 and all applications connected thereto. The intention of the applicants was to
withdraw the petition and to have all interim orders vacated so as to give effect to the
Memorandum of Understanding as they had no further interest in the said company
matter.
7. We say that an order was passed on the said application on 12th April 2007. A
copy of the said order dated 12th April 2007 is annexed hereto and marked "B". The
applicants after 12th April 2007 had not given any further attention to the orders and was
under the impression that the company petition being CP no 252 of 1985 and all
applications connected thereto had been dismissed as withdrawn.
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8. We say that all of a sudden, in or about 30th January 2010 the applicants were
contacted by the present directors of the respondent company and the applicants were
shocked to know that in connection with another proceedings, it has been contended that CP no. 252 of 1985 and the applications in connection thereto has been shown pending in the Case Status Information System of this Hon'ble Court. A copy of the Case Status Information System of this Hon'ble Court is annexed hereto and marked "C".
9. We say that we are surprised to find out about the pendency of CP no. 252 of 1985 as prayers have been made before this Hon'ble Court for dismissal of CP no. 252 of 1985 on 12th April 2007. Order was also passed on 12th April 2007 on the application of the applicants. However, after making further enquiries on 30th January 2010 and after perusal of a copy of the order dated 12th April 2007, it appears that in the said order due to inadvertence or mistake on the part of the advocates appearing for the applicants as well as the respondent company, it has been recorded that CA no. 302 of 2007 has been dismissed as 'not pressed'. We state and submit that the intention of the applicants and the then petitioner was to withdraw CP no. 252 of 1985 and not have CA no. 302 of 2007 dismissed. Such mistake is apparent on the face of the record and on the face of the order dated 12th April 2007. We further state and submit that the mistake on the face of the order had not been noticed earlier by the applicants and the advocates appearing for the applicants also did not point out such obvious mistake.
10. In the aforesaid facts and circumstances, we have been advised and we have made this application for correcting and/or rectification of the order dated 12th April 2007 so as to reflect the dismissal of CP no. 252 of 1985 and all applications in connection thereto. We state and submit that, in any event, CP no. 252 of 1985 and all applications in connection thereto should be treated as dismissed as withdrawn on and from 12th April 14 2007. The applicants had no interest and have not proceeded with CP no. 252 of 1985 or any application in connection thereto on and from 12th April 2007."
The argument advanced by Mr. S. B. Mukherjee, learned Senior Counsel that there cannot be any manner of doubt on a bare look of the said application being CA no. 302 of 2007 that the said application is an application for withdrawal of the company petition no. 252 of 1985 and order for dismissal would mean an order of dismissal of the said company petition no. 252 of 1985 as withdrawn, cannot be accepted for the reason that the said application for withdrawal of the main company petition itself is capable of being not pressed if the parties so chooses and subsequently changed their stand and/or decision to have the said company petition alive and/or pending.
The correction as embodied under section 152 is a correction of such nature which on bare look does not require any submission and/or argument to be advanced we are afraid that such is not the situation herein. The said company application no. 302 of 2007 has three fate. One is if allowed shall make the said company petition no. 252 of 1985 dismissed as withdrawn. Secondly the said application may be dismissed in view of the original proceeding being in representative character and the court refuses to grant leave under Rule 88 (2) of the Companies (Courts) Rule 1959 and thirdly dismissal of the said application as being not pressed at the statement of the parties. The Hon'ble court was not unmindful of the mandatory provisions contained in Rule 88(2) of the Companies (Courts) Rule 1959 and was pleased to observe :
"Rule 88(2) of the Companies (Court) Rules instructs that a dismissal or a withdrawal of a petition under section 397/398 of the Companies Act needs to be made upon application of mind. The order of April 12, 2007 was a run of the mill of order of 15 dismissal that does not reveal any application of the mind to the matter as it ought to have if it were intended to dismiss or permit the withdrawal of proceedings under section 397/398 of the Act. The order was immediately available though an application for the certified photocopy thereof appears to have been made only on May 8, 2007. There is no reason why it did not dawn upon the surviving petitioners that the order was not as had been sought for a period of nearly thirty months from the date of obtaining an authenticated copy thereof. There are other factors that also weigh in this assessment. CA no. 302 of 2007 was a bare-bodied application which did not indicate that the heirs of the deceased substituted petitioner were on record. If it was such application for dismissal that had been pressed on that day such lacuna would have been discovered in considering whether leave as sought ought to be granted. The agreement for sale of shares that has been detailed at paragraph 5 of the affidavit in support of the summons in CA no. 53 of 2010 had not been pleaded in the affidavit in support of the summons in CA no. 302 of 2007. Paragraph 4 of the withdrawal application merely asserted that the applicants did not wish to proceed or continue with the petition, but gave no reasons therefor. The court would have sought the reasons for withdrawal if the order intended to permit the withdrawal of the petition."
The Hon'ble First Court while dealing with such an application for correction of an order was pleased to recapitulate the event and/or happening as transcribed in an order dated April 12, 2007 and observed the following :
"Since the present application for rectification of the order has been brought after a log delay, as to what transpired in court on April 12, 2007 cannot honestly be recounted with clarity either by counsel then representing these applicants or by court. It is, thus, 16 that the order has to been seen to assess whether such order can pass off as an order dismissing a petition under sections 397/398 of the Act or permitting the withdrawal thereof. In recording the submission of the then applicants, the expression used in the order is, "the matter need not be proceeded with." The word "matter" may have been used in course of oral submission to imply the petition. The word "matter" may have been understood by court to mean the application. If it were so, it would be a case of miscommunication and somewhat of an error, no doubt, on the part of the court but even if it was submitted that the petition was not to be proceeded with, it was incumbent on the part of the petitioners to draw the attention of the court that it was a petition under sections 397/398 of the Act. It is, indisputably, the duty of the Judge to go through the papers before pronouncing an order and take responsibility therefor. It has also come to pass, undesirable as it may be, in this docket-fatigued system where the sheer number of matters sits heavy on every judicial officer, that upon a prayer for dismissal simpliciter of an action being made, a casual order is made for dismissal.
The essence of the matter is as to whether the court intended to dismiss the petition or permit the withdrawal thereof but erroneously recorded the dismissal of the application. If it can be said that the intention was one and the recording another then there would be a mistake that can be rectified at any time, subject to equitable considerations as rights having accrued to others on the basis of the erroneous recording. But if it does not appear that the order intended to dismiss the petition and erroneously recorded the dismissal of the application, it may not call for a correction of the records."
The matter can be viewed from another angel as to why the Court of Appeal should interfere with an order of the Hon'ble First Court dismissing an application under section 152 of the Code of Civil Procedure holding that there is no error in the order 17 sought to be corrected. The Court of Appeal cannot pierce in mind of the learned Judge to find out that the recording of the statement as to what transpired in the court on such date. Any interference would lead to one conclusion that the Court of Appeal does not accept the veracity of the statement made by the Judge, in other word the Court of Appeal has to hold that the statement made by the learned Judge is incorrect. The Hon'ble Apex Court has cautioned such recourse to be adopted in case of Ramdas Shrinivas Nayak (supra).
Such contention that the appellants intended to withdraw the company petition no. 252 of 1985 are also not correct inasmuch as for an affidavit-in-reply affirmed on 27th June 2007 before the Company Law Board the appellants themselves have stated that the said order of status quo have no connection with the present proceeding and/or affect the right of the parties. What transpires from such statement is that there was no denial of the fact that the order of status quo which was passed in the said company petition proceeding is no longer in existence as the company petition itself has been dismissed as withdrawn rather it goes contrary to such presupposes that the said company petition is still alive and the order of status quo is in vogue but that does not correlate with the said proceeding or have any impact on the rights of the appellants. The Hon'ble First Court while passing an impugned order was conscious of the position that the company petition in such fashion as has been argued by the learned Advocate for the appellants to be dismissed in view of the embargo created under Rule 88(2) of the Companies (Court) Rules and thus observed as follows :
"To deal with the past point first, it does not appear that the surviving petitioners in CP no. 252 of 1985 assumed that an order of dismissal of the petition under sections 18 397/398 of the Act would be made for the asking. It is evident that they were aware of Rule 88(2) of the Companies (Court) Rules and the discretion that the Company Judge had to refuse to dismiss the suit despite the petitioners' bidding. A formal application was taken out by the surviving petitioners with apparent knowledge that dismissal of the proceedings was not a matter of course. If the applicants in CA no. 53 of 2010 had said that they intended to withdraw the petition without having made a formal application for withdrawal, the court may not have lent any credence to such submission. There was, indeed, a formal application for withdrawal of the petition and in its head and body and tail, the application had "leave for withdrawal" written all over".
(Emphasis supplied) Let us now deal with the judgment cited by Mr. S. B. Mukherjee, learned Senior Counsel in support of such contention the judgment reported in Jai Berham & Ors. (supra) where the Privy Council has laid down that the act of the court does not injure to any of the suitors and the expression 'the act of the court' is used it does not mean merely the act of the primary court or of any intermediate Court of Appeal. The same principle was reiterated in a case of Jang Sing (supra).
There is no quarrel with such proposition of law such is not the case where the appellant can take shelter under the act of the court. The appellants were conscious that the said company application has been dismissed as not pressed and the order of status quo passed in the said company petition is subsisting and did not deny categorically as to the non-existence thereof.
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The another point agitated by Mr. S. B. Mukherjee, learned Senior Advocate that the mistake appearing in the record of the proceeding of the court is always capable of being corrected and heavily relied upon various judgments reported in AIR 1966 SC 1631 (Jang Sing Vs. Brij Lal & Ors.), AIR 1974 Cal 231 (Union of India Vs. Kamal Kumar Goswami & Ors.), 1885 (XXX) Chancery Division 239 (Mellor Vs. Swire), AIR 2008 SC 225 (Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society), (2000) 1 SC 666 (M.M. Thomas Vs. State of Kerala & Anr.) and (2009) 5 SCC 791 (Commissioner of Customs and Central Excise Vs. Hongo India Pvt. Ltd. & Anr.) and AIR 1967 SC 1440 (Samarendra Nath Sinha & Anr. Vs. Krishna Kumar Nag).
The ratio laid in the aforesaid judgments are all based upon the fact that there has been a clerical or ministerial mistake in the judgment decrees or orders or there has been an error arisen therein from any accidental slip or omission. Here is a case where the Hon'ble First Court itself recorded that there is no such error, omission or a mistake in recording of the statement of fact of the happing of such state. Such recording of statement is conclusive and neither the lawyer nor the litigant may claim to contradict before the appellate Court except before the judge himself (see AIR 1982 SC 1249 (State of Maharashtra Vs. Ramdas Shrinivas Nayak).
We do not find any merit in the instant appeals. Thus, both the appeals being APOT No. 188 of 2010 and APOT No. 189 of 2010 are hereby dismissed.
However, there shall be no order as to costs.
Urgent xerox certified copy of this order be supplied to the parties, if applied for, within two weeks.
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(Pinaki Chandra Ghose, J) (Harish Tandon, J)