The Animal Husbandry Co-Operative House Building Society Limited vs State of Haryana and Others

Ajay Kumar Mittal, J.—This appeal has been filed by the appellant-society against the judgment of learned Single Judge dated 31.7.2013 whereby the writ petition filed by it has been dismissed. Briefly, the facts necessary for adjudication of the controversy involved, as available on record, may be noticed. A plot No. 443 measuring 396 square yards was allotted to Randhir Singh by the General body of the Animal Husbandry Cooperative House Building Society Limited-appellant (in short, "the Society") before the year 1989. Late Banwari Lal purchased this plot from him who expired on 23.11.2003. The nominees of late Banwari Lal approached the society for transferring the plot in their names. The petitioner society instead of transferring the plot, while passing a resolution, filed an arbitration case before the Arbitrator on the issue that the other plots were measuring 233 square yards while the plot in question was measuring 396 square yards but same price had been charged. The arbitrator dismissed the petition of the society vide order dated 18.9.2006. The society filed appeal before the Deputy Registrar, Cooperative Societies, Hisar against the order dated 18.9.2006 which was also dismissed vide order dated 12.6.2007. Still not satisfied, the society filed revision petition before respondent No. 1. The said revision petition was dismissed as withdrawn vide order dated 29.10.2010 by the Special Secretary to Government, Haryana Cooperation Department, on an application filed by the appellant-society under Order 23 Rule 1 of CPC alongwith affidavit of the Secretary dated 18.9.2010 stating therein that the plot in question had been resumed by it after passing a resolution dated 29.8.2010. Thereafter, application was filed by respondent No. 4 for recalling the order dated 29.10.2010 in which notice was received by the President of the society dated 13.12.2010 for hearing on 17.12.2010 on which date the appellant sought adjournment on the ground of engaging counsel. Meanwhile, the case was transferred to other officer. It was reserved on 20.7.2011 without giving any notice of date, time and place of hearing to the appellant society and was ultimately dismissed on 22.9.2011 and intimation was given to the appellant for applying certified copy of the order. The appellant-society challenged the said order by filing CWP No. 23199 of 2011 in this Court. Vide order dated 31.7.2013, impugned herein, the writ petition was dismissed by learned Single Judge. Hence the present Letters Patent Appeal by the appellant-society.

Learned counsel for the appellant submitted that the impugned order had been passed without affording an opportunity of hearing to it. Reliance was placed upon judgments in Mariamma Roy Vs. Indian Bank and Others, , Northern Indian Glass Industries Ltd. Vs. State of Haryana and Others, and Ran Singh Vs. The Gandhar Agricultural Co-operative Service Society, Gandhar,

After hearing learned counsel for the parties and perusing the record, we do not find any merit in the appeal.

Learned Single Judge had dismissed the writ petition after noticing that in the order dated 22.9.2011 passed by the Financial Commissioner, it was recorded that the case was fixed for arguments and the arguments of the parties were heard on 20.7.2011 and the order was kept reserved. In case, the aforesaid observations in the order dated 22.9.2011 passed by the Financial Commissioner were not in consonance with the record, the learned Single Judge observed that it would have been appropriate for the appellant to approach the same forum by filing an application alongwith an affidavit in terms of the decision of the Apex Court in the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, . The relevant observations in the aforesaid judgment read thus:--

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". AIR 1926 136 (Privy Council) 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, AIR 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.

4-A. In Rev. Mellor, (1858) 7 Cox. P.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 The King Emperor Vs. Barendra Kumar Ghose, Page, J. 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 criticised or circumvented; much less is it to be exposed to animadversion.

In the present case, the Financial Commissioner in his order dated 22.9.2011 had specifically noted that the arguments of the parties were heard on 20.7.2011. Thus, the appropriate remedy for the appellant in such an eventuality was to approach the same court for correction of the mistake on record.

Adverting to the judgments relied upon by learned counsel for the appellant, it may be noticed that in Mariamma Roy''s case (supra), it was held that even if an alternative remedy was available to an aggrieved party against a particular order but if it was open to move a writ application, the court has the power to entertain the same if it finds that while passing the order there has been a violation of the principles of natural justice. In Northern Indian Glass Industries Limited''s case (supra), it was held that principles of natural justice apply irrespective of the nature of cause, or the gravity thereof and are not mere platitudes to the rule of law. Similarly, in Ram Singh''s case (supra), it was held that the award having been given in contravention of the statutory rules incorporating principles of natural justice was a nullity qua the appellant and was incapable of being executed as a decree of the Civil Court against him. Such is not the position in the present case. The said cases being on individual fact situation do not help the appellant. In view of the above, we do not find any merit in the appeal and the same is dismissed.