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Judgment
Chandra Reddy, J.—This petition is against an order directing the issue of a commission to examine a witness, Mr. P. Somasundaram. The facts giving rise to this petition are the following.
The suit was tiled by the 1st Respondent against the Petitioners for recovery of Rs. 1,24,000/- on the foot of a promissory note executed by all the Defendants jointly and severally on 17-10-1951. On receipt of the suit notice, the Defendants applied for inspection of certain documents. This was opposed by the Plaintiff. In-spite of this the inspection was ordered by the Subordinate Judge on. the ground that it was necessary to frame their defence.
The matter was taken in revision to the High Court by die Plaintiff. The C R. P. was heard by Justice Umamaheswaram who allowed the revision petition except with reference to one or two documents. In the course of the Judgment, the learned Judge observed:
The claim based on mortgage has been given up in this suit as conceded by Mr. P. Somasundaram.
At another place, he says:
As the Plaintiff is not suing to enforce the equitable mortgage and has given up his rights there under I am unable to gather how the documents hearing on the equitable mortgage mentioned in part 6 viz., (a) the deed of equitable mo gage; (b) the correspondence that passed, been the Plaintiff, Defendant 1 and the Regis-u; of Joint Stock Companies, Madras, in relate) the Memorandum of-Equitable Mortgage; mid (the correspondence that led to execution of the equitable mortgage deed on 5-10-1953 and the said deed are relevant.
After the revision petition was allowed, the Defendants" filed a written statement in which it was stated as follows:
This Defendant filed I. A. 1690/54 for inspection of documents and the Honourable Court allowed the same. The Plaintiff bank went in revision against the said order in C. R. P. 91 of 55 to the High Court and the High Court allowed the said petition on the ground that inspection of the documents could not be had before filing of the written statements.
This Defendant states that now that the written statement is filed he may be given leave to file a further1 written statement after obtaining inspection of the documents from the Plaintiff bank for which purpose he is also taking out the necessary application in this Honourable Court.
This Defendant understands that during the hearing of C. R. P, 91 of 1955 in the High Court the Plaintiff bank through its counsel Sri P. Somasundaram represented that the Plaintiff bank is giving up the security created in its favour and is content to proceed only on the basis of the suit promissory note.
This Defendant states that under the circumstances above stated the Plaintiff bank has no power or liberty to give up security and by such giving up of the security in its favour the Plaintiff bank had acted contrary to the terms of the agreement between the parties and by reason thereof also the Defendants 2 to 7 are relieved of their liability under the suit promissory note to the Plaintiff-bank.
On these pleadings an issue was raised to the effect: "Are the Defendants 3 to 5 relieved of their liability under the suit promissory note in the manner mentioned by them in paras 9 to 13 of the written statement?" The case was tried and the evidence was closed when the Defendants wanted to have the judgment of Justice Umamaheswaram in C. R. P. No. 91 of 1955 filed as an exhibit. The Subordinate Judge remarked that it was unnecessary to do so as it formed part of the record.
At that stage, the application giving rise to this C. R. P. was filed with the following allegations inter alia:
Subsequently, the advocate for the Defendants Sri D. Prakasarao appears to have met Sri Pappu Somasundaram at Hyderabad and asked him about he same and Sri Pappu Somasundaram stated to him that he did not mention that the Bank gives up the security and that he only stated that in this suit the Plaintiff-bank .is suing only on the pronote and not on the security, Sri Pappu Somasundaram has written a letter dated 9-2-1957 to that effect.
The Defendants are contending that by reason of giving up the security (which is not correct) they are relieved of their liability under the suit pronote.
We are advised that the evidence of Sri Pappu Somasundaram is necessary and relevant. The Bank gave up the security and never instructed the counsel to that effect.
In spite of the opposition of the other side, the request was granted by the trial court notwithstanding the finding that this was a belated application and that it could have been filed at least immediately after the written statement. This revision is by the aggrieved Defendants.
The only point for determination is whether evidence could be given by a lawyer to contradict a statement contained in the judgment of this Court. The relevant remarks of Justice . Umamaheswaram show that the mortgage was given up in that suit. Now the Plaintiff wants to establish that the statement was not correct. In my opinion, it is not competent for the party or the counsel concerned to challenge a statement contained in a judgment, in the way they seek to do it.
If the party wants to make out that the concession was not so made or was not properly understood by the court the only procedure to be adopted is by applying for a review before the same Judge and not to controvert it by means of evidence or affidavits. This position is clear from reported cases. The latest pronouncement of the Supreme Court on this topic is contained in Moran Mar Bassetios Catholicos v. Mar Poulose Athanasius, AIR 1954 SC 526 at p. 527 (A).
In an earlier decision in Sha Mulchand and Co. Ltd. (In Liquidation) Vs. Jawahar Mills Ltd., , S.R. Das J., (as he then was) observed that the procedure was indicated by their Lordships of the Privy Council in Mad''hu Sudan v. Mt. Chandrabati, 21 CWN 897 : AIR 1917 PC 30) (C), for rectification of what is alleged to have been wrongly recorded by a trial Judge. "(5) This is what the Privy Council has Stated in 21 CWN 897 : AIR 1917 PC 30) (C):
Their Lordships are Quite unable to accept this contention; had there been any mistake in this respect it would have been incumbent upon the Appellants, while the matter was still fresh in the minds of the Judges, to have caused their pleader to call the attention, of the court 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 and 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, and 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 wholly insufficient ................
It follows that it is not open to the party or the counsel to furnish evidence to render a statement contained in a judgment of'' a court in correct or inaccurate. The only way in which they could do is to apply for review before the same Judge. It follows that the Subordinate Judge was not right in accepting the petition of the Respondent especially when he found that it was a belated one.
Mr. Narasimharao urged that the concession made by Mr. Somasundaram as appearing from the judgment of Justice Umamaheswaram was only with reference to that suit. If that is so, I fail to see what purpose would be served by examining him. If it appears on the face of the statement, that speaks for itself. There is no necessity to examine Mr. Somasundaram to speak to what the order says. In these circumstances, this C R. P. go allowed and the petition is dismissed. Parties will bear their "own costs throughout.