- (1.) THIS revision petition has been filed under section 115, CODE OF CIVIL PROCEDURE, 1908 against the order of the learned District Judge, Jodhpur dated February 7, 1987 by which he ordered the non-petitioner No. 1 Mst. Kamla to take her minor daughter Niru from the Office of Shri Ranamal Advocate at 9 a. m. and return her at 4, p. m. in his office on every Sunday. The facts of the case giving rise to this revision petition may be summarised thus.
(2.) NON-petitioner No. 1 Mst. Kamla was married with Tulasidas. Usha and Niru were born out of this wedlock. On 9th July, 1982 Tulasidas died. The non-petitioner moved an application under Section 25, Guardian & Wards Act, 1925 (hereinafter referred to as 'the Act') for the custody of her daughters. She also moved an application under section 12 of the Act for their interim custody. The petitioner, father of late Tulasidas, seriously contested the petition, stating that the non-petitioner No. 1 Mst. Kamla Devi has contracted Nata marriage with Raju, she is leading an immoral life, she has given a birth of a daughter after 15 months of the death of her husband Tulasidas and Usha has been married. The petitioner had moved an application under Order 16, Rule 1 and Section 151, CODE OF CIVIL PROCEDURE, 1908 for summoning the record of the Ummaid Hospital, Jodhpur and to examine the Superintendent of the Hospital to prove that Mst. Kamla had given a birth of a daughter in this hospital after 15 months of the death of late Tulasidas. During the pendency of this application, the learned District Judge passed the said order which has been challenged in this revision. It has been contended by the learned counsel for the petitioner that the learned District Judge has seriously erred in the exercise of his jurisdiction illegally and with material irregularity in passing the said order without first disposing of the said application moved under Order 16, Rule 1 and Section 151, CODE OF CIVIL PROCEDURE, 1908 to prove that Mst. Kamla is leading an immoral life, even the interim custody of the minor daughters with her would adversely affect on their development and character. He further contended that he never gave his consent for the said interim custody of Mst. Niru. He lastly contended that the learned District Judge was bound to ascertain the wishes of Mst. Niru before passing the impugned order and he committed a great error in not ascertaining her wishes. He relied upon Aisha vs. Bashir Ahamad, (1), Lakshmamma v. Achamma, (2), Sukhjit Singh vs. Olga Usha, (3), Satnam Transport Co. vs. Prakash Mal, (4) and Akhtar Begum v. Jamshed Munir, (5 ). In reply, it has been contended by the learned counsel for the non petitioner Mst. Kamla that the impugned order was passed with the consent of the petitioner and for this reason, Mst. Niru was to be taken from the Office of Shri Ranamal Advocate at 9 a. m. on every Sunday and was to be returned the same at 4 p. m, in his office. He further contended that the order-sheet of February 7, 1987 correctly recites the events which took place in the Court in presence of the parties, no application was moved by the petitioner or his counsel immediately after the order-sheet was written challenging any part of it and, therefore, it is not now open to the petitioner to challenge the correctness of the order-sheet. He relied upon State of Maharashtra v. Ramdas Shri Niwas Nayar (6 ). Arguments of the learned counsel for the parties have been heard and the record has been perused It would be best to quote here in extend the order of the learned District Judge dated February 7, 1987 which has been challenged in this revision. It runs as under:- ********* The first question for consideration is whether this order has not correctly recorded the events which took place in the court on that date. The defendant-petitioner's case is that the order has not correctly recorded the events and no consent was given for the interim custody of Mst. Neeru. Admittedly, no application or affidavit was presented before the learned District Judge, Jodhpur, challenging any part of this order. For the first time, it was simply stated in the revision petition that the learned District Judge misinterpreted and misunderstood the contention of the defendant's counsel permitting Mst. Kamla to meet her daughter Neeru for some time. It has been observed in State of Maharashtra v. Ramdas Shrinivas Nayar (supra) as follows : " 4. When we drew the attention of the learned Attorny General to the concession made before the High Court, Shri A. K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. 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 as Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the area. "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 some thing 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 of other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, whi!e 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 Suchmaster in Madhushudan v. Chandrabati. 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. Of course a parly may resile and an Appellate Court may permit him in fare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. 4-A. In R. V. Mhellor (1858) 7 Com CC 454 Martin B was reported to have said : We must consider the statement of the learned Judge as absolute variety and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity. " It has further been observed in para 7 as under:- " 7. To the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else. " It cannot, therefore, be held that the order sheet dated 7-2-87 does not correctly recite the events which took place before the court on this date.
(3.) THE second question for consideration is whether the above quoted order relating to the meeting of mother Smt. Kamla and Neeru was passed with the consent of the parties or not. It clearly recites that Shri Ranarnal stated before the court that facility may be granted to Neeru to meet her mother once in a week. It shows that Neeru was allowed to meet her mother and not vice versa. Naturally, the question which could have arisen before the court on that, day would have been where from Neeru was to be taken and returned. If Shri Ranarnal Advocate would not have made any suggestion in this regard, the order would not have mentioned that Neeru may be taken from his office at 9 a m. and returned the same day at 4 p m in his office on every Sunday. THE very fact that his office was selected as the venue for taking and returning Neeru, leaves no doubt that this suggestion regarding the place must have been come from him and none else. This leaves no doubt that the said order was passed with the consent of the parties and it cannot now be challenged- Much has been said that the wishes of Mst. Neeru were not ascertained before passing this order. It may be mentioned here that if Mst. Neeru would not have desired to meet her mother Smt. Kamla, the petitioner would have been first person to produce her before the court to tell that she is not willing to go with her mother for a couple of hours. Admittedly, this was not done. The Tacts and circumstances of all the reported cases cited by the learned counsel for the petitioner are quite different and distinguishable. They are not applicable in the present case. ;