1. This petition arises out of an order passed by consent under Order 9, Rule 13, Civil P.C. The ground now taken is that this petitioner did not in fact consent and that the learned Judge was labouring under a. mistake of fact in thinking that he did consent. In support the petitioner has filed an affidavit by his advocate in the lower Court. The respondent has resisted on the ground that when a question of fact arises as to what happened in the lower Court the statement of the presiding Judge is conclusive. Reliance is placed on the decision in Reg. v. Pestonji ('73) 10 Bom. H.C.R. 75, where Westropp C.J., put the proposition in these words:
The statement of the Judge, who presides at a trial, whether it be in a criminal or civil case, is, as to what has taken place at the trial, conclusive. Neither the affidavits of bystanders, nor of jurors, nor the notes of counsel, nor of short-hand writers are admissible to controvert the notes of statement of the Judge.
2. The learned Chief Justice proceeded to cite a number of cases, from one of which an extract may be quoted. In Rex. v. Grant (1834) 5 B. & Ad. 1081, Taunton J. made this observation:
The question is, whether the affidavits of bystanders are to be admitted, to prove that the Judge, who presided at a trial is guilty of mistake as to what passed. If such affidavits were now received, it would be the first instance of such a practice, and would produce the greatest injury to the administration of justice.
The learned advocate for the petitioner has not been able to produce any authority contra. As the statement of the learned Judge as to what happened is conclusive, it necessarily follows that there is no error of jurisdiction in his order and the petition is ordered to be dismissed with costs.