IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01/02/2005 CORAM THE HON'BLE MR.MARKANDEY KADJU, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE D. MURUGESAN C.M.P. No. 5167 of 2001 in W.A. No. 231 of 1996 :ORDER
(Order of the Court was made by
The Hon’ble Chief Justice.)
This is an application to recall the judgment dated 12.6.1997
delivered by a Division Bench of this Court. Mr.D.Nelliappan. Learned
counsel appearing for the applicant, who is the respondent in the writ appeal,
stated on instructions that no one appeared for the applicant before the
Division Bench which decided the Writ Appeal No.231 of 199 6 on 12.6.1997.
However, in para 1 of the judgment it is stated ” Heard both sides”. This
means that counsel for the respondent in the writ appeal had also been heard.
2. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd.
{(2003)2 SCC 111 vide para 61} the Supreme Court observed following its
earlier decision in STATE OF MAHARASHTRA v. RAMDAS SHRINIVAS NAYAK [(1982) 2
SCC 463] as follows:
“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 SOMASUNDARAM CHETTY
v. SUBRAMANIAN CHETTY [AIR 1926 PC 13 6]). 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 MADHU SUDAN CHOWDHRI v.
CHANDRABATI CHOWDHRAIN [AIR 1917 PC 30]). That is the only way to have the
record corrected. If no such step is taken, the matter must necessarily end
there.”
3. Similarly in Roop Kumar v. Mohan Thedani {(2003)6 SCC 595
vide para 11} the Supreme Court following its earlier decision in Bhavnagar
University case cited supra observed as follows:
“In a recent decision BHAVNAGAR UNIVERSITY v. PALITANA SUGAR MILL (P) LTD.
{(2003)2 SCC 111} the view in the said case was reiterated by observing 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.
That is the only way to have the record corrected. If no such step is taken,
the matter must necessarily end there. It is not open to the appellant to
contend before this Court to the contrary.”
4. The same view has been taken in Ram Bali v. State of
Uttar Pradesh (2004)18 ILD 880 SC. Similar view has been taken by us in W.
A. No.85 of 2005 dated 31.1.2005 (C.SHANMUGAM v. TAMIL NADU HOUSING BOARD
REP. BY ITS MANAGING DIRECTOR, CHENNAI-35).
5. Apart from the above, we have also heard learned counsel
for the applicant (respondent in the writ appeal) on merits and we are in
agreement with the judgment dated 12.6.1997. The enquiry officer had found
that the respondent was guilty of tampering with the official record and other
charges. These are serious charges and the findings recorded by the enquiry
officer are the findings of fact. We cannot interfere with findings of fact
in writ jurisdiction. This application is rejected.