ORDER
Dinesh Maheshwari, J.
1. This writ petition is directed against the second and third part of the order as passed by the learned Additional District Judge (Fast Track) No. 2, Bhilwara on 21.09.2007 in Civil Suit No. 110/2005.
2. Briefly put, the relevant facts and aspects of the matter are that the petitioner is facing a suit for declaration, recovery of possession and perpetual injunction as filed by the respondents Nos. 2 and 3 in relation to the properties mentioned in paragraph 4, 5 and 6 of the plaint (Annex.1). The plaintiffs have alleged their rights to the properties in question as being the descendants of Naval Ram and his adopted son Chauthmal; have alleged the agricultural land stated in paragraph 5 and 6 of the plaint having been given to the defendant No. 1-petitioner for cultivation on share basis and the defendant having taken possession of the residential property on request. While alleging defendant No. 1 having fraudulently got the land transferred in his name; having refused to hand over the share of produce; and having also refused to hand over possession of the land in question, the plaintiffs have also alleged the defendant No. 1 having unauthorisedly alienated the land comprised in Araji No. 8014 in favour of the defendant No. 2 who has further transferred the same to the defendant No. 3. The plaintiffs have prayed for the relief of declaration about their title to the properties in question; for declaration against the documents pertaining to transfer of Araji No. 8014; for dispossession of the defendants from the suit properties and delivery of possession to the plaintiffs; and for other reliefs in injunction and damages for use and occupation.
3. The petitioner-defendant No. 1 has put the matter to contention and has denied the claim as made by the plaintiffs of succession to the properties of Naval Ram; has asserted himself having lived as son with Chauthmal who had no issue; and has referred Chauthmal as his father. The petitioner has asserted the residential property having been purchased by his father Chauthmal and himself having raised construction thereat; has asserted the agricultural land in question either having been purchased by Chauthmal or having been in his khatedari; and has further asserted himself having remained in use and occupation of the same even during the life-time of Chauthmal. The defendant has alleged the plaintiffs to be working in conspiracy to somehow have him harassed.
4. It appears that during the course of trial of the suit, a request was made by the plaintiffs for examination of the document (that seems to be a 'Will' allegedly executed by Chauthmal) by Forensic Science Laboratory; and the request was declined by the learned trial Court by its order dated 02.04.2007.
5. S.B. Civil Writ Petition No. 2911/2007 filed by the plaintiffs against the said order dated 02.04.2007 was rejected by this Court on 30.05.2007. Intra-Court appeal, SAW No. 738/2007, taken by the plaintiffs was also dismissed by the Hon'ble Division Bench on 09.08.2007. However, the Hon'ble Division Bench noted the submissions made on behalf of the plaintiffs that they would like to lead evidence on their own by placing on record the evidence of hand-writing expert; and in relation to such statements, the Hon'ble Division Bench observed that if any evidence is produced before the learned trial Court, the trial Court may consider the same in accordance with law. It further appears that before passing of the aforesaid order by the Hon'ble Division Bench, the plaintiffs got the questioned document examined by an expert and sought the leave of the Court for production of such expert's report along with its accompanying documents by way of an application dated 31.07.2007 (Annex.5). The application so moved by the plaintiffs was put to contention by the defendant-petitioner by filing reply on 19.09.2007 (Annex.6). Noteworthy it is that on 19.09.2007, the matter was ordered to be fixed on 21.09.2007 for arguments on the application and so also for evidence of the plaintiffs.
6. The aforesaid application dated 31.07.2007 was taken up for disposal by the learned trial Judge on 21.09.2007. With reference to the facts available on record and so also with reference to the order passed by this Court, the learned trial Judge found it just and proper to take the hand-writing expert's report and the related documents on record and permitted the parties to examine and cross-examine the expert. It was also observed that the evidentary value could be argued by the parties before the Court but at this stage, the documents could not be denied to be taken on record. The learned trial Judge, accordingly, took the report and the related documents on record and permitted both the parties to lead evidence in that regard. [vide first part of the order dated 21.09.2007 (Annex.7)]
7. After pronouncement of the aforesaid order, taking the expert's report and related documents on record, learned Counsel appearing for the petitioner-defendant No. 1 before the trial Court expressed that an application was intended to be filed and after half-an-hour filed an application with the submissions that the order passed by the court for taking the expert's report on record was intended to be questioned before the High Court and, therefore, the matter be adjourned. The prayer so made was opposed by the witness Mohan Lal present on behalf of the plaintiffs, who stated about his old age and also alleged the defendant-petitioner Jagdish having warned him not to make statements and having threatened that he would be removed out of society. Without making any comments on such allegations and leaving the parties free to take resort to legal proceedings, the learned trial Judge referred to the directions issued by this Court on 23.08.1994 in S.B. Civil Revision Petition No. 260/1993 that mere challenge or intention to challenge an order before the High court is not sufficient for keeping the proceedings in trial in abeyance. The learned Judge reiterated the substance of the order passed earlier in the day for taking the expert's report on record; and observed that the matter was fixed for cross- examination of the plaintiffs witness PW-2 Mohan Lal, who was an old person in 85 years of age and had attended several dates of hearing. The learned Judge did not consider it justified to adjourn the matter and rejected the prayer for adjournment as made on behalf of the defendant-petitioner; and thus pronounced the second part of the order on 21.09.2007.
8. The learned Judge thereafter extended an opportunity to cross-examine PW-2 Mohan Lal and directed so; but the counsel for the defendant No. 1 made the statement that despite adjournment having not been granted, the witness would not be cross-examined. The leaned trial Judge observed that in such circumstances, there was no option except to close the cross- examination of PW-2 Mohan Lal and ordered accordingly.
9. The relevant portion of the second part of the order as passed by the learned trial Judge on 21.09.1997 reads as under:
gLrxr izdj.k esa ekuuh; jkt- mPp U;k;ky; ds Mh-ch- Lis'ky vihy ua- 738@07 esa ikfjr vkns'k fn- 09-08-07 dkks funsZ'kkuqlkj gh gLrys[k fo'ks'kK dh fjiksZV o lacaf/kr nLrkost jsdkMZ ij fy, gS vkSj bl U;k;ky; }kjk ;g fu'd'kZ fn;k gS fd fjiksZV o gLrys[k fo'ks'kK dh lk{; dk D;k egRo gksxk ;g nksuks i{k U;k;ky; esa cgl dj ldrs gS vkSj vafre cgl dh LVst ij ns[kk tk;sxk A vkt oknh ds xokg ih-M- 2 eksguyky ls izfrijh{kk ds fy, i=koyh fu;r gS rFkk ;g xokg djhc 85 dk o`) O;fDr gS dbZ isf'k;ks ls mifLFkr vk jgk gS vr% bl xokg dh ftjg ds fy, izdj.k LFkfxr fd;k tkuk ;k le; fn;k tkuk drbZ U;k;ksfpr ugha gS fygktk bu ifjfLFkfr;ks es LFkxu dk ;g vkosnu [kkfjt fd;k tkrk gS A vkns'k lquk;k x;k A
10. The entire of the third part of the order dated 21.09.2007 reads as under:
iqu'p%
vkns'k lquk;s tkus ds i'pkr ih-M- 2 eksguyky ls izfroknh dze- 1 }kjk ftjg djus gsrq volj o funsZ'k fn;k x;k ysfdu izfroknh dze- 1 ds vf/koDrk dk dFku gS fd os LFkxu ugh fn;s tkus ds ckotwn Hkh ftjg ugh djsaxs vr% ,slh fLFkfr esa U;k;ky; ds ikl izfrj{kk cUn djus ds vykok dksbZ fodYi ugh gS vr% ,slh fLFkfr esa ih-M- 2 eksguyky ls volj fn;s tkus ds ckotwn izfroknh dze- 1 ds vf/koDrk }kjk ftjg ugh djus ij izfrijh{kk dk vf/kdkj lekIr fd;k tkrk gS vkns'k lquk;k x;k A
11. The order aforesaid has been challenged by the defendant- petitioner in this writ petition. It has been submitted by the learned Counsel appearing for the petitioner that the petitioner intends to contest the matter on merits and sincerely seeks to cross-examine the witness and if would be denied an opportunity to cross- examine, the petitioner would suffer irreparable injury. Learned Counsel submitted that in the overall facts and circumstances of the case, an opportunity with some breathing time could have been granted by the learned trial Court.
12. Upon this Court taking exception on the averments as taken in this writ petition that 'on behalf of the petitioner, it was never said that they are not ready to cross-examine' [vide paragraph 10 (e)] for being squarely contrary to what has been recorded by the learned trial Judge, learned Counsel for the petitioner craved for indulgence by this Court in the interest of justice and prayed for an opportunity for the petitioner to cross-examine the said witness.
13. Learned Counsel for the respondents-plaintiffs has opposed the submissions as made on behalf of the petitioner-defendant and submitted that the learned trial Court has not committed any illegality in closing the cross-examination of the witness concerned. Learned Counsel also suggested that if at all any opportunity was considered appropriate by this Court, the same may not be granted without imposing heavy costs.
14. Having given a thoughtful consideration to the entire matter, this Court is firmly of opinion that this writ petition deserves to be dismissed.
15. It remains fundamental in the system that the statement as made in the order of a court as to what happened or transpired during the course of hearing, remains conclusive; and the same could least be permitted to be contradicted in other court. The Hon'ble Supreme Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak : 1982CriLJ1581 said:
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 v. Subramaniam 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.
(emphasis supplied)
16. The Hon'ble Supreme Court further declared in no uncertain terms,So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.
17. Learned Counsel for the petitioner has of course not pressed upon the suggestion as made in paragraph 10(e) of the petition and made the submissions essentially to the effect that the petitioner may not be prejudiced in placing his case on merits before the trial court; however, even a feeble attempt as made in petition in paragraph 10(e) of this writ petition suggesting as if something else was stated before the learned trial court than what has been recorded in the impugned order deserves to be, and is, rejected outright.
18. The aspect relating to the permission to produce handwriting expert's report and further permission to all the parties to lead evidence in that regard has rightly not been put to contention in this writ petition. Earlier, when the trial court refused to collect evidence for the plaintiff and declined to send the document for examination by Forensic Science Laboratory that did not by itself prevent the plaintiff from placing on record the opinion of handwriting expert, if any; and such a course was indeed indicated by the Hon'ble Division Bench while dismissing the intra-court appeal filed by the plaintiff on 09.08.2007. The objection raised on behalf of the petitioner against production of such evidence has been dealt with by the learned trial court in a perfectly justified manner with the observations that all the parties are permitted to lead evidence in that regard.
19. It could not have been insisted after pronouncing of the first part order dated 21.09.2007 by the learned trial court and rejecting the baseless objection against taking on record the expert's report and related documents that because the defendant would seek to challenge the said order before the High Court, the matter be adjourned. Moreover, when an 85 years old witness was present for cross-examination, the learned trial court cannot be faulted in declining to adjourn the matter. The refusal to cross-examine after the learned trial court declined the adjournment and directed to proceed with the cross-examination, apart from giving rise to serious questions on propriety, left no option with the learned trial court except to find that the defendant-petitioner was not interested in cross-examination of the said witness.
20. Thus, so far the impugned order is concerned,in its second part, the learned Judge has not committed any illegality or impropriety in refusing adjournment; and then, once a statement was made that the defendant would not proceed with cross- examination despite ordered to do so, the learned trial Judge has not committed even a least amount of impropriety what to say of any illegality, in closing the cross-examination in the third part of the order.
21. Yet and however, the rules of procedure are intended to be and are applied by the courts for determination of the matters in controversy on merits and any mistake or error or indiscretion on the part of anybody appearing before the court has no co-relation nor has any bearing on appropriate application of the principles of natural justice and objective consideration of the matter in issue. In this matter, even when the trial court closed the cross- examination of the said witness, which it did rightly so, if the petitioner yet had any bona fide proposition to state, nothing prevented him from making an appropriate application to the learned trial court, who would have, this Court has no doubt, dealt with the same in accordance with law. Even now, if the petitioner makes a bona fide prayer and comes out with the propositions that are in conformity with the honour to the rule of law and are conducive to the expeditious disposal of the matter on merits and satisfy the court concerned of his not adopting dilatory methodology, this Court, again, has not an iota of doubt that the trial court would dispassionately deal with the prayers and propositions, if adequately presented by the petitioner in accordance with law and in the manner befitting the honour of rule of law. However, so far the present writ petition is concerned, this Court does not find anything to interfere and would, of course, not like to make any other comment.
22. Subject to the observations aforesaid, this writ petition fails and is dismissed. In the circumstances of the case, there shall be no order as to costs.