ORDER
1. I disposed of the Writ Petition No.12532 of 1997 on the basis of concession made by both the sides to the Writ Petition. The order read as follows:
“The learned Counsel appearing for both the sides submitted that the facts of this case are substantially similar to those in Writ Petition No. 17138 of 1997 disposed of by a single Judge of this Court on 14-10-1997. It is also submitted by the learned Counsel for the parties that the validity of the above order of D.H. Nasir, J. was called in question in Writ Appeal No.1362 of 1997 and the Division Bench dismissed the same by itsorder dated 1-12-1997. In that view of the matter, I dispose of the Writ Petition in terms of the direction issued by D.H. Nasir, ). in his order dated 14-10-1997 in WP No.17138 of 1997. The Writ Petition is disposed of accordingly with no order as to costs.”
2. Against this consent order, Writ Appeal No.1308 of 1998 was filed. The Division Bench allowed the Writ Appeal and set aside the order of the single Bench dated 30-6-1998. The order of the Division Bench reads as follows:
“It appears that the recent decision of the Division Bench of this Court dated 28-4-1998 made in WA No.733 of 1998 has not been taken note of by the learned single Judge. The order of the learned single Judge, therefore, stands set aside and quashed. The matter is remitted back to the learned single Judge for being dealt with in accordance with law having due regard to the observations in the aforesaid
judgment. The parties, however, would be at liberty to adduce further documentary evidence before the learned single Judge at the time of hearing of this matter in addition to the pleadings already on record. The writ appeal stands disposed of as above. No order as to costs.”
3. As directed by the Division Bench the case was listed before the Court for fresh hearing.
4. As could be seen from the order made by me on 30-6-1998, the order was grounded on a concession made by both the sides to the writ petition. When the writ petition was heard on that day, it was not brought to the notice of the Court any other decision except two decisions of this Court; one by the learned single Judge and the other by the Division Bench to which reference was made in the order. The very fact that the petitioner chose to file writ appeal indicates that he is contesting the correctness of what happened before the single Bench on 30-6-1998 and the statement made by the Judge in the order. At the time of hearing, today, learned Counsel for the petitioner submitted that he did not contest the correctness of the statement made by the single Bench in its order dated 30-6-1998. I do not accept this say of the learned Counsel for the petitioner. It is quite apparent from the order of the Division Bench that the grievance of the petitioner before the Division Bench was that the single Judge did not take into account or consider the recent decision of the Bench of this Court in WA No.733 of 1998 dated 28-4-1998, and the learned Counsel for the petitioner also admitted to have made such submission before the Division Bench. It sends a wrong signal; a point urged by the Counsel for the petitioner is ignored and not considered by the single Judge Bench. This kind of attempt grounded on falsity should never be countenanced. If the order made by the single Bench dated 30-6-1998 is on the basis of concession made by the parties themselves and if that
concession was made by the parties on a wrong perception or impression of the earlier decisions of the Court or inadvertently, they should have approached the same Bench for review of the order. Such a course, in the facts and circumstances of the case, is the only course open to the litigants and their Counsel. The Judges cannot be dragged as witnesses nor the observations made by a Judge with reference to what transpired before the Court cannot be permitted to be contested by any one. The Judges cannot be dragged as witnesses as to what actually happened in the Court. The single Bench has not decided the matter on merits and on the other hand, as could be seen from the order of the single Bench dated 30-6-1998, it was solely grounded on a concession made by both the parties to the writ petition. I am fortified in forming the above opinion, by the judgment of the Supreme Court in Stale of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249. in paragraph 4 of the said judgment the Supreme Court was pleased to observe thus:
“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, AIR 1926 PC 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 the 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. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected.”
5. I should make it very clear that I have absolutely no hesitation to hear and dispose of the writ petition afresh on merits after taking into account the decision of the Bench dated 28-4-1998 made in WA No.733 of 1998, and, in fact, I am bound to do it, but the procedure adopted by the petitioner herein to contest the correctness of the statement made by the Court in its order dated 30-6-1998 in an indirect way and the incorrect factual statement made by the learned Counsel for the petitioner cannot be countenanced. The confidence reposed by the litigant public that the Courts never attribute a wrong factual statement to the parties and their Counsel should be sustained, and any attempt to shaken that confidence should be thwarted, and the sanctity attached to the Judges’ Records should be maintained.
6. In that view of the matter, and with utmost respect to the Division Bench before which admittedly a factually incorrect statement was made by the Counsel for the petitioner, I think that it is just and proper to refer this matter to the larger Bench of this Court to consider the question whether the petitioner and his Counsel in this case, or any other case, can be permitted to contest the correctness of the statement made by the single Judge Benches in their orders as to what happened or transpired in the Court,
either directly or indirectly, in the light of the Judgment of the Supreme Court in Slate of Maharashtra v. Ramdas Shrinivas Nayak, (supra). Accordingly, 1 refer this writ petition to the Division Bench under Rule 14 of the Writ Proceedings Rules, 1977.
7. The Registry is directed to place the writ papers before My Lord the Hon’ble the Chief Justice for posting the writ petition before the appropriate Division Bench.