Ramji Dass vs Inder and Another

R.S. Pathak, C.J.—The point before me raises a question of considerable importance.

On March 20, 1975, after hearing counsel for the parties in this second appeal I dictated judgment in open court and dismissed the appeal. Before the judgment could be signed and sealed an application (CM.P. No. 241 of 1975) was made by counsel for the Appellant on the same date that the appeal be treated as a revision petition and considered accordingly. On that application an objection was raised by counsel for the Respondents that the judgment having been dictated orally in open court it had become final and could not now be reconsidered. The question is whether a judgment in such circumstances is final and cannot subsequently be withdrawn, altered or modified before it is signed and sealed.

Before considering the different aspects of the question, reference may be made to certain statutory provisions. Order 20 Rule 1 of the CPC provides that after the case has been heard the Court shall pronounce judgment in open court, either at once or on some future date. Order 20 Rule 3 requires that the judgment be dictated and signed in open court at the time of pronouncing it and declares that once the judgment has been signed it shall not afterwards be altered or added to, save as provided by Section 152 or on review Those provisions relate to the trial Court. Order 41 Rules 30 and 31 provide that the Appellate Court shall pronounce judgment in open court either at once or on some future day, and the judgment at the time when it is pronounced shall be signed and dated by the Judge or by the Judges concurring therein. As regards the Rules of Court, Rule 3 of Chapter 4-G of Volume V. declares that when judgments are delivered orally a note thereto must be taken in writing in the English language or short-hand by an officer of the court in attendance for the purpose and that the note so taken shall be written out or typed in full by the officer by whom it was taken and shall be submitted by him to the Judge for correction. After being corrected by the Judge, where necessary, it shall be filed as the judgment of the court. It is clear that in the case of judgment dictated in court it becomes the judgment of the court only after it has been corrected by the Judge. My attention has also been invited to Rule 3 of Chapter 4-H, which provides that when an appeal has been heard by a Bench the written opinions of the Judges who heard the appeal but meanwhile have ceased to be attached to the court before delivery of the Judgment shall, unless delivered by another Judge of the Bench which heard the appeal, be deemed to be minutes merely and not judgments. This rule applies where before the judgment could be delivered some of the Judges had ceased to be Judges of the court. It is not relevant to the point before me.

The cases cited before me may be considered now. In one of the earlier cases, Firm Gokal Chandjagan Nath v. Firm Nand Ram Dass Atma Ram AIR 1938 P C 292 the Judicial Committee held that a judgment delivered in court was an operative judgment although one of the judges had omitted to sign it. It was a case where one of the Judges had signed the jugdment while the other had proceeded on leave without signing it. All that flows from the opinion of the Judicial Committee is that the judgment commences to operate from the date of its delivery and the date of its operation is not postponed to the date on which it is actually signed. That is also the law declared by the Supreme Court in Iqbal Ismail Sodawala v. Registrar Hon''ble High Court, Bombay AIR 1974 S.C. 1880.

The effect of the death of a Judge before the judgment prepared by him could be delivered was considered by the Supreme Court in Surendra Singh and Others Vs. The State of Uttar Pradesh, In that case two judges of the Allahabad High Court had heard an appeal in a criminal case and one, purporting to write a joint judgment, prepared it and signed it and then sent it to the other Judge, but before it was delivered the former Judge died. The judgment was delivered by the other Judge. The Supreme Court held that it was not a valid judgment. The decision turned on the consideration that both Judges must be alive when judgment is delivered in court. That is so because until delivery a judgment even if signed has the status merely of a draft judgment. The delivery of the judgment in a case is as much a part of the proceeding in the case as any other, and it is necessary under the general law that the Judges hearing the case should continue to the end up to the date of delivery of the judgment before it can be legally concluded. It is clear that the point which was before the Supreme Court is not the point before me.

The point before me was considered by the Allahabad High Court in Beni Madho Prasad Singh Vs. Adit and Others, where a division Bench held that in a civil case a judgment delivered in open court and dictated to a shorthand writer before the transcription of the same was signed by the Judge or the Judges concerned did not become final until it had been signed and dated, and that it was open to the Judge or Judges to make such revision as may be deemed necessary before signing and dating it. Reference was made to a number of cases Pragmadho Singh and Others Vs. Emperor, Saru Smelting and Refining Corpn. Ltd. Vs. State, Queen Empress v. Lalit Tiwari ILR 21 All. 177, Emperor v. Kallu ILR 27 All. 92 , Gobind Sahai Vs. Emperor, and State of Bombay Vs. Geoffrey Manners and Co. (No. 2), and it was pointed out that criminal cases were governed by their own rule, which did not require that the judgment delivered in court should be signed and dated before it could be considered as a final judgment. In passing, however, it may be pointed out that two other cases were referred to Amodini Dassee v. Darssan Ghose I.L.R.38 Cal. 828 and Mohan Singh Vs. Emperor, both of which were criminal cases, and the Calcutta High Court, and the Patna High Court respectively laid down there that it was open to the Judge to review a judgment delivered in court before it was signed. Reference was also made to Allah Rabul Almin v. Ganga Sahai AIR 1947 All. 211 which raised the interesting point whether a judgment delivered on the merits and signed but which had not yet been sealed could be reconsidered, and it was held that it was not competent to a Judge to do so. Another case mentioned was Jai Karan Vs. Panchaiti Akhara Chota Naya Udasi Nanak Shahi, in which the Chief Justice had dictated an order in open court and immediately thereafter counsel for one of the parties requested that the judgment be not signed and a question of limitation arising in that case might be considered. This request was acceded to by the learned Chief Justice, but subsequently by sheer inadvertance the transcript of the judgment was signed. It was held that in the exercise of its inherent jurisdiction the High Court could set aside the order and rehear the case. Clearly that was a case where an error of the court itself was required to be set right in the exercise of the inherent jurisdiction of the court.

Subsequently a Division Bench of the Allahabad High Court in Faulad and Another Vs. State, expressed the view that even in a criminal case a judgment dictated in court was a provisional one only and that it was open to the judge to alter the judgment and dictate a fresh judgment before it was signed and sealed.

A point similar to the one arising in the present case was considered by a Full Bench of the Allahabad High Court in Sangam Lal Vs. Rent Control and Eviction Officer and Others, . and approving of the decision of the Division Bench of that Court in Faulad and Anr. (supra) the Full Bench laid down that a judgment which had been orally dictated in open court could be completely changed before it was signed and sealed provided notice was given to all the parties concerned and they were heard before the change was made.

A contrary view has been taken by a single Judge of the Gujarat High Court in Ishwarbhai Desaibhai Patel Vs. Vadilal Lallubhai Mehta and Others, It was observed that once the judgment was delivered in open court it became final and effective and could not subsequently be altered or revised.

It seems to me that the act of the Judge in signing and dating the judgment is regarded by the law as an act perfecting the judgment. ''Both Order 20 Rule 1 and Order 41 Rule 31 of the CPC require the Judge to sign and date the judgment on pronouncing it in open court. The requirement is not mere formality. It is an act which makes the judgment complete. Once the judgment is signed and dated after being pronounced in open court it cannot, as Order 20 Rule 3 declares, be altered or added to, except for the limited purpose mentioned therein. That finality is also implied in Order 41 Rule 31.

Now so long as a judgment is not perfected by signing it, it would appear that it can always be withdrawn or altered or modified. Until perfected it is not a final judgment. That was the view taken by the Court of Appeal in England in Millensted v. Crosvenor House (Park Lane), Ltd. (1937) 1 All. E.R. 736, and reliance was Placed on Re Sufield & Watts (1888) 20 Q.B D 693. 697. The same principle was applied by the Court of Appeal in Moon Motors Ltd. v. Kinan Wou (1952) 2 LR 80. In England, an order becomes finally effective when it is perfected by its being passed and entered. In Re: Thorns (1911) 2 Ch. 389, warrington J. observed:

It is the every day practice that, until an order is passed and entered, the matter can be brought before the Judge, and if a mistake has been made it can be put right.

And further

I think that is the correct way of dealing with the matter for the reason that, until the order is finally passed and entered, it leaves open an opportunity of reviewing and reconsidering what has been done.

The view finds approval In Re: Harrison''s Settlement (1955) 1 All. B. R. 185 where Jenkins L. J., speaking for the Court of Appeal, pointed out:

When a judge has pronounced a judgment he retains control over the case until the order giving effect to his judgment is formally concluded.

It is urged that a party to the case may act on the judgment as soon as it is pronounced and in that event serious injustice may result if subsequently it is withdrawn, altered or modified before it is signed. The answer to that objection was given in the aforesaid case by the Court of Appeal, when it observed:

... although the judgment dates from the date of its pronouncement it is not perfected until drawn up, passed and entered and anyone who acts on it before hand must take such risk as there is that it will not be drawn in the form in which it was heard to be pronounced. We think that an order pronounced by the Judge can always be withdrawn or altered or modified by him until it is drawn up, passed and entered. In the meantime it is provisionally effective and can be treated as a subsisting order in cases where the justice of the case requires it, and the right of withdrawal would not be thereby prevented or prejudiced.

There are cases where an order would generally operate immediately, for example, the granting of injunction as soon as the relevant words are spoken. But that is not so in the case of an order which can only be treated as operative "at the expense of making it, in effect, irrevocable, e. g.,an order for the payment of money, cannot be treated as operative until it has been passed and entered". The Court of Appeal In Re Harrison''s Settlement (Supra) declared that it would be more reasonable, and better for the parties, if the Judge, on realising that the decision pronounced was wrong recalled it and reheard the case rather than allowed the matter to be perfected with the knowledge that the order as orally pronounced was founded on a misconception. The alternative, it was pointed out, is that:

no matter how clearly it might appear that the Judge''s order as orally pronounced was erroneous, such order would have to proceed to completion and the dissatisfied party would be faced with the necessity of appealing as the only means, short of agreement, which might or might not be possible of putting the matter right. We cannot think that this would be a desirable state of affairs.

On the aforesaid considerations I hold that a judgment orally pronounced in open court may be always withdrawn, altered or modified before it is signed. That is so whether it is dictated in open court to prepared at home and delivered orally in court.

I am of opinion that inasmuch as I had not signed my judgment before the application was made for further hearing of the case, the application can be entertained.

By the application the Appellant prays that the appeal be treated as a revision petition and considered on that basis. It is not infrequent that the courts in their judicial discretion have adopted that course for the purpose of doing justice between the parties. I see no reason why I should depart from that practice. In the circumstances, el allow the application and direct that the present case which has been registered as an appeal, will now be treated as a revision petition.

List the case for further hearing.