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Ashok Kumar & Others v. Nathi Lal (Deceased) & Others - SECOND APPEAL No. - 899 of 2007 [2007] RD-AH 14889 (3 September 2007)

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Court No.27

Second Appeal No.899 of 2007

Ashok Kumar & Ors.


Naththi Lal & Others


Hon. Dilip Gupta, J.

The defendants have filed this Second Appeal for setting aside the judgment and decree dated 9th August, 2007 passed by the learned Additional District Judge, Court No.11, Agra by which the judgment and decree of the Trial Court has been confirmed.

Sri A.N. Bhargava, learned counsel for the appellants submitted that the Appeallate Court has not given any finding about the compromise that had taken place between the parties and which had been filed before the Trial Court. He contended that though the Trial Court had rejected the compromise application but even though it was urged by the learned counsel for the appellants before the First Appellate Court that the suit should have been decreed in terms of the compromise application, yet the Appellate Court did not advert to this aspect at all in its judgment and decree.

Sri A.K. Gupta, learned counsel appearing for the respondents urged that it is not open to the appellants to take this plea in the Second Appeal and if the appellants are aggrieved that any argument raised by the learned counsel has not been considered by the Lower Appellate Court, then in such circumstances the proper course is to file a Review Petition before the same Court.

I find considerable force in the submission advanced by the learned counsel for the respondents. The Supreme Court in State of Maharashtra Vs. Ramdas Shrinivas Nayak & Anr., AIR 1982 SC 1249 observed that the fact whether the counsel gave any concession or not before the High Court was not a matter which could not be urged in the Special Leave Petition as in such matters it is for the parties to move an application before the same judge.

In Central Bank of India Vs. Vrajlal Kapurchand Gandhi & Anr., (2003) 6 SCC 573 the Supreme Court again observed :-

"The only course open to a party taking the stand that an order does not reflect actual position is to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463. In recent decisions i.e. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111 and Roop Kumar v. Mohan Thedani (2003) 6 SCC 595 the view in the said case was reiterated. State 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 an affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment 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 to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend before this Court to the contrary. This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not cone. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moved it contending that the order has not correctly reflected happenings in court."

The contention of the learned counsel for the appellants is that before the First Appellate Court, learned counsel for the appellants had raised submissions about the compromise application but the Court has not adverted to this issue at all in its judgment. In view of the aforesaid decisions of the Supreme Court, it is not open to the appellants to urge this issue in the Second Appeal as in such cases the applicant may, if so advised, file a Review Petition before the same Court.

Learned counsel for the appellants, however, placed reliance upon the decision of the Supreme Court in Achintya Kumar Saha Vs. M/s. Nanee Printers & Ors., AIR 2004 SC 1591 in support of his contention that if the core issue is not adjudicated upon by the First Appellate Court then it results in substantial question of law to be framed by the High Court. In this decision, the Supreme Court itself noticed that the submission had been argued before the First Appellate Court but the said fact was not adjudicated upon. In the present case the judgment of the First Appellate Court does not indicate that this point was urged and, therefore, the aforesaid decision does not help the appellants of the present case.

The Second Appeal is, accordingly, dismissed at the admission stage. It would, however, be open to the appellants to file a review petition, if so advised.




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