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Timmalapalli Virabhadra Rao Vs. Sokalchand Chunilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1521 and 1619 of 1949
Judge
Reported inAIR1951Mad796; (1951)IMLJ244
AppellantTimmalapalli Virabhadra Rao
RespondentSokalchand Chunilal and ors.
Appellant AdvocateD. Narasaraju and ;K.B. Krishnamurthy, Advs.
Respondent AdvocateM.S. Ramachandra Rao and ;M. Krishna Rao, Advs.
Cases ReferredReg v. Pestonji Dinshaw
Excerpt:
.....when the parties are rich & obstinate, vakils appearing for them would be subjected to a degree of pressure to swear to affidavits which is not to be encouraged. they probably failed to do so because the learned judge was transferred about a month afterwards & the docket to the copy of the order of the lower ct......about what happened in the dist. ct. nevertheless certain facts are not disputed. the learned dist j. heard arguments in the appeals on 22-6-1949 & reserved judgment. either on 24th or on the 25th june--the difference between these dates is immaterial--the appeals were taken up in order to ascertain whether the applt. or anyone else was willing to deposit rs. 25000 as his initial bid. time was extended once & again till 12-8-1949 when one vagu venkataswami stated to be the son-in-law of one of the insolvents deposited a sum of rs. 6250. the learned dist. j. made an order on 12-8-1949 of which the first para, runs as follows:'in view of the deposit made here to prove the bona fides of the contention of the applt. that the sale of the property in question was not for proper.....
Judgment:
ORDER

Balakrishna Ayyar, J.

1. These are two petns. to revise the order of the Disk J., Eluru in C. M. A. No. 123 Of 1947 & C. M. A. No. 25 Of 1948 on his file.

2. The more material facts are these. On 11-3-1946 the Official Receiver sold the properties of the insolvent in I. P. Nos. 21 & 22 of 1933 on the file of the Subordinate Judge, Eluru. One Virabadra Rao the petnr. before me was the successful auction purchaser, the amount of his bid being Rs. 15,500. On 29-3-1946 two creditors of the insolvent named Bapiraju & Viraswami filed I. A. No. 820 of 1946 before the Subordinate Judge, Eluru,praying that the sale be set aside. One Chunilal, another creditor of the Inslvt., probably entertained fears that Bapiraju & Viraswami might not prosecute their petn. diligently & so on 22-12-1946 he applied to be added as the 3rd petnr. in I. A. No. 320 of 1946. The petn. which Chunllal so filed was numbered as I. A. No. 44 of 1947. On 11-2-1947 this I. A. No. 44 of 1947 was dismissed because even though his vakil was present the petnr. was absent & no evidence was adduced in support of the allegation that the petnrs. in I. A. No. 320 of 1946 were not prosecuting their petn. with diligence. On 8-4-1947 I. A. No. 320 of 1946 was withdrawn & dismissed. Chunilal thereupon filed two appeals before the Dist. Ct. One numbered as C. M. A. No. 123 of 1947 was against the order dismissing I. A. No. 320 of 1946 & the second numbered as C. M. A. No. 25 of 1948 was against the order dismissing his own appln. L A. No. 44 of 1947.

3. There is a certain amount of apparent--but as finally appears over apparent--controversy about what happened in the Dist. Ct. Nevertheless certain facts are not disputed. The learned Dist J. heard arguments in the appeals on 22-6-1949 & reserved judgment. Either on 24th or on the 25th June--the difference between these dates is immaterial--the appeals were taken up in order to ascertain whether the applt. or anyone else was willing to deposit Rs. 25000 as his initial bid. Time was extended once & again till 12-8-1949 when one Vagu Venkataswami stated to be the son-in-law of one of the insolvents deposited a sum of Rs. 6250. The learned Dist. J. made an order on 12-8-1949 of which the first para, runs as follows:

'In view of the deposit made here to prove the bona fides of the contention of the applt. that the sale of the property in question was not for proper price both sides agree that the applt. should be allowed to be added as a party & given an opportunity to convince the lower Ct. that the sale is liable to be set aside on this ground. Both sides further agree that I. A. No. 320 of 1946 on the file of the lower Ct should be restored to the file of the lower Ct. for disposal on merits. In dealing with it the lower Ct. will take into consideration that fact that there is a bidder who is prepared to start his bid with Rs. 25000 as the upset price. Both these appeals are allowed.'

On behalf of Virabhadra Rao, the petnr. before me, it was strenuously contended that on neither of the two points set out in the order of the learned Dist. J. now complained of was there the agreement that he asserts there was. An affidavit of the learned vakil who appeared for the petnr in the Dist. Ct. was filed in support of the contention. It is stated that it was only because this affidavit was filed that these civil revn. petns. were admitted at all. When notices were issued to the opposite side after the admission of these two revn. petns. another affidavit from the advocate who had been appearing for Chunilal in the Dist. Ct. was also filed. Reading these two affidavits together it appears to me to be reasonably clear that both the parties agreed before the learned Dist. J. that I. A. No. 320 of 1946 on the file of the Sub Ct. should be remanded to that Ct. for disposal on the merits, but, it was certainly not agreed that Chunilal should be added as a party.

4. Mr. Ramachandra Rao for the resp., however, took the objection that a statement in a judgment or order as to what had taken place in Ct. is conclusive & cannot be allowed to be controverted by an affidavit or otherwise & that a party who is aggrieved by what he considers a wrongstatement in a Judgment should apply to the very same Judge by way of review. In support of this position a number of decisions were cited & I shall briefly examine them. The earliest of these is the case reported in 'Reg. v. Pestonji Dinshaw', 10 Bom HCR 75. In that case there was a controversy whether the learned Judge who presided at the criminal sessions of the Bombay H. C. instructed the Jury in a particular manner. The learned Judge positively stated that he had not so instructed the Jury. Dealing with the question whether such a statement could be canvassed Westropp C. J. observed as follows :

'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 or statement of the Judge: 'Rex v. Grant', (1834) 5 B & Ad 1081 : 3 N & M 106; 'Everett v. Youells', (1833) 4 B & Ad 682 : 110 E R 612 'Gibbs v. Pike', (1842) 9 M & W 351 : 152 ER 149. And in 'Reg v. Aaron Mellor', (1858) 27 L J M C 121: 7 Cox C C 454, Mag. Ca. Coleridge J. at p. 131, says: 'I apprehend that we are bound to give credence to the statement of the Judge, & to take what the judge so states to be incontrovertibly the fact. It is suggested this is not a record, but we have no more power of contradicting the statement of a learned Judge reserved for our consideration, than we have the power of contradicting any allegation upon a record; & Martin B (p. 137) says: 'We must consider the statement of the Judge as absolute verity, & we ought to take his statement precisely as a record & act on it in the same manner as on a record of Ct., which of itself imports absolute verity.'

This judgment puts the law in the strongest possible terms in favour of the contention urged by Mr. Ramachandra Rao. It has long been in our reports & does not appear to have been dissented from.

5. The second decision In point of time is the one reported in 'Shamsher Bahadur v. Kunj Behari', 3 MLT 212 : 12 CWN 273. At p. 215 the learned Judges stated :

'As to the 'factum' of the admission it is not open to the defts. to challenge the accuracy of the statement contained in the judgment of the Dist. J. If the admission was not as a matter of fact made, or if it was substantially different from what it was taken by the Dist. J. to be, the proper course for the defts. was to apply for a review of judgment because the Dist. J. & he alone was competent, to state with any approach to accuracy, what was the precise admission which had been made before him.'

To the same effect is the decision in 'Nagabhu-shanam v. Jagannaikulu', 49 MLJ 671: AIR 1925 Mad 1031, the headnote to which runs as below :

'Where a judgment contains a damaging statement against a party, a statement of an admission purporting to have been made by him, & practically conclusive of the case against him, the proper course for him to adopt, if his case is that the statement is erroneous, to apply for a review of judgment, when the matter Is fresh In the mind both of the learned Judge who pronounced the Judgment and of the practitioners who appeared in the case. He ought to do as soon as he finds out the mistake, & ought not to wait & make the error the ground of an appeal filed long afterwards.'

The decision next cited is that of the Privy Council In 'Madhusudan Chowdhari v. Mt. Chandrabati', 6 MLW 437: AIR 1917 PC 30. At p. 442, their Lordships commented on the suggestion that the learned Judges who tried the case might have misunderstood the action of the pleader in the conduct of the case in these terms :

'Their Lordships are quite unable to accept this contention; had there been any mistake in this respect it would have been incumbent upon the applts., while the matter was still fresh in the minds of the Judges, to have caused their pleader to call the attention of the Ct. to the fact that the statement made with regard to his conduct was a statement that had been made in error. No such step was taken, &, apart from the argument of counsel, there is nothing before their Lordships to make them think that any such mistake occurred; an affidavit has Indeed been filed by a person who said he was present at the trial, that he would certainly have noticed any such admission, that such admission was not made, & that the learned pleader is now unable to recall whether in fact it did or did not occur. After such a lapse of time this is wholly Insufficient..................'

The last of the decisions read by Mr. Ramachandra Rao is the one reported in 'Venkatesayya v. Mahammad Ghouse Sahib : AIR1944Mad450 . It merely follows the earliest Bombay case 'Reg v. Pestonji Dinshaw', 10 Bom HCR 75 without much discussion.

6. Mr. Narasaraju the learned advocate for the petnr. however argued that the law has been stated too rigidly & inflexibly in 'Reg v. Pestonji Dinshaw', 10 Bom HCR 75, & that whatever may be the position according to the English decisions which were relied on in 'Reg v. Pestonji Dinshaw', 10 Bom HCR 75, an exception to the rule has been recognised in Indian Cts. He first referred to 'Hurdayal Singh v. Heeralall', 16 WR 107, a Calcutta case where this law is stated in these terms :

'The rule of law is that a judgment deliberately recording the admission of a pleader must be taken as correct, unless it Is contradicted by an affidavit or the Judge's own admission that the record he made was wrong.'

On the strength of this observation he argued that it was open to a party to show by affidavit that a statement of fact in a Judgment as to what took place in Ct. was wrong.

7. 'Nellavadivu Ammal v. Subramania Pillai' 31 M L J 269: AIR 1918 Mad 1039 is the second case cited by Mr. Narasaraju. In that case Sadasiva Aiyar J. remarked :

'A statement in a judgment as to an admission made before the Ct of First instance should not be doubted lightly by the Appellate Ct. especially 'in the absence of an affidavit by the vakil who appeared In the Ct. of First Instance'.'

The words underlined (here in inverted commas) are those on which Mr. Narasaraju placed special emphasis. The third is an unreported case 'in A. S. No. 567 of 1947' on the file of this Ct. What happened there was that in view of certain allegations in an affidavit of the advocate concerned In the Ct. below Subba Rao & Somasundaram JJ. called for a report from the Sub Judge about what had happened & after considering his report remanded the suit for fresh disposal according to law.

8. Now, if we examine its 'raison d'etre' the rule that a statement in a judgment as to what happened in Ct. should not be allowed to be controverted is seen to rest on a number of salutary reasons. One is that to depart from it & to allow such statements when they are deliberately made in judgments to be challenged would be to drawthe presiding officers of Cts. into the controversy between the parties, a process which must inevitably & in the long run lead to embarassment, if not demoralization all round. Especially when the parties are rich & obstinate, vakils appearing for them would be subjected to a degree of pressure to swear to affidavits which is not to be encouraged. Confidence in the impartiality of the officers presiding in the Cts. of Justice is the very foundation of our judicial system & indeed of any civilised system & if such officers are dragged into the battle of allegations & counter allegations that is appropriate only to the role of litigants, their detachment & the confidence which such detachment inspires will be seriously impaired. Mr. Narasaraju, however, contended that to lay down the rule in the hard form in which it has been done in the Bombay case 'Reg v. Pestonji Dinshaw', 10 Bom H C R 75 would be to set a premium on carelessness & inexactitude. But when we realise that the number of litigants runs into hundreds of thousands while judicial officers are relatively a handful that as a rule a judicial officer has no interest in a case beyond seeing that it is terminated & that they receive a training & are subject to a discipline from which litigants are immune, the evil which Mr. Narasaraju apprehends is surely much the smaller one.

9. I think that when there is any controversy between the parties the statement made by the judge should be accepted as final & conclusive. The proceduce which Subba Rao & Somasundaram JJ. adopted 'in App. No. 567 of 1947 does not', as I understand their order, involve a deviation from the old established rule. In that case there was an affidavit by the advocate on one side which by implication stood unchallenged indicating that there had been some misapprehension in the mind of the learned Subordinate Judge. A report was called for from the Subordinate Judge & it was essentially on what was stated in that report that the learned Judges rested their final order. The observations of Sadasiva Aiyar J. in 'Nellavadivu Ammal v. Subramania Pillai', 31 M L J 269 : AIR 1918 Mad 1039 are not to be understood as deliberately intended to introduce a proviso to the rule laid down in the earliest case. The learned Judge was merely making a comment in passing & I do not think it was his intention to discuss the rule or express any considered opinion on it. Somewhat similar remarks apply to the decision in 'Hurdayal Singh v. Heeralal', 16 WR 107.

10. It is however easy to visualise situations to which the rule laid down in the Bombay case 'Reg v. Pestonji Dinshaw', 10 Bom H C R 75 would have no application. One would be where there is an enquiry into an accusation of misconduct against a judicial officer in relation to a particular case. Another would be where there is in reality no controversy at all between the parties & it is apparent from the affidavits of the advocates on both sides that the learned Judge fell into an accidental error. The present case falls into the latter category. The parties agreed only 'as to what should be done in C. M. A. No. 123 or 1947, but the learned Dist. J. who had at the same time C. M. A. No. 25 of 1947 before him thought that the agreement extended to both appeals. It is true & the authorities also leave no room for doubt on this point that the most appropriate remedy in such a situation is to apply by way of review to the very same Judge. That is what the parties here should have done. They probably failed to do so because the learned Judge was transferred about a month afterwards & the docket to the copy of the order of the lower ct. shows that the copy was obtained only on 28-9-1949 i.e., after the learned Judge had been transferred.

11. In the circumstances, I dismiss C. R. P. No. 1521 of 1949 with costs & direct that I. A. No. 320 of 1946 be restored to the file of the Subordinate Judge for disposal according to law on the merits since that was what the parties agreed to before the Dist. J. I allow C. R. P. No. 1619 of 1949 with costs & direct the Dist. Ct. to dispose of C. M. A. No. 25 of 1948 on its merits.


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