State Of Uttarakhand & Others vs Sukh Lal & Others

Ramesh Ranganathan, CJ

The applications to condone the delay in preferring these appeals are not opposed by Sri Amar Murti Shukla, learned counsel for the respondent-writ petitioner and the delay is, therefore, condoned.

The learned Single Judge has, in the orders under appeal, observed that this aspect of the matter, as to whether the controversy agitated by the petitioners in the writ petition was covered by the aforesaid judgments (Habib Khan vs. State of Uttarakhand) (Judgment in Civil Appeal No. 10806/2017 dated 23.08.2017), was not disputed by the Standing Counsel; the Standing Counsel had admitted that the issue and relief claimed in the writ petitions were identical, as that decided by the Supreme Court in Habib Khan; and he had consented that the writ petition be disposed of in terms of the judgment of the Supreme Court in Habib Khan.

As the learned Single Judge has recorded the consent of the learned Standing Counsel, appearing on behalf of the appellant, that the writ petition be disposed of in terms of the judgment of the Supreme Court in Habib Khan, no intra-Court appeal, under Chapter 8 Rule V of the Allahabad High Court Rules, would lie to a Division Bench against a consent order, since such an order would not amount to a "judgment" appealable in terms of the said provision.

Sri Pradeep Joshi, learned Standing Counsel for the State-appellant, would submit that the judgment of the Supreme Court, in Habib Khan, is not applicable to the facts of the present case; and, in any event, the said judgment needs re-consideration. It is only the Supreme Court which can re-consider its judgment, and not the High Court.

A contention, similar to the one put forth by Sri Pradeep Joshi, learned Standing Counsel for the appellants-State, that the Standing Counsel had not consented before the learned Single Judge for such an order to be passed was considered in State of Maharashtra vs. Ramdas Srinivas Nayak : (1982) 2 SCC 463 , wherein the Supreme Court observed:

".......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 Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri 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 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 counters in the game of litigation". Per Lord Atkinson in Somasundaran v. Subramanian A.I.R. 1926 P.C. 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 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 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. Per Lord Buckmaster in Madhusudan v. Chanderwati A.I.R. 1917 P.C. 30 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.

In Rev. Mellor 7 Cox. C.C. 454 Martin B was reported to have said "we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity".

In King Emperor v. Barendra Kumar Ghost 28 C.W.N. 170 said:

"...these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticized or circumvented; much less is it to be exposed to animadversion."

In Sarat Chandra v. Bibhabati Debi 34 C.L.J. 302. Sir Asutosh Mookerjee explained what had to be done:

....It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment.

So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.

....emphasis supplied"

It would be wholly inappropriate for a Division Bench to launch into an inquiry as to what transpired before the learned Single Judge. The statements of Judges, recorded in their judgments, as to what transpired in the Court must be accepted, and cannot be permitted to be contradicted by statements at the bar. If a party thinks that the happenings have been wrongly recorded in a judgment, their remedy is only by seeking a review of the order, and to draw attention of the very Jude, who had recorded the facts, that the statement, made regarding his concession, was a statement that had been made in error.

Leaving it open to the appellants, if they so choose, to seek review of the orders under appeal, by filing a review application before the learned Single Judge, the Special Appeals are dismissed as not maintainable. No costs.