Smt. Basanti Devi and Others vs Abdul Sattar and Others

S.N. Modi, J.—This is in application made on behalf of Smt. Basanti Devi and her minor son Prahlad under Order 20 Rule 3 CPC and Rule 88(2) of the Rajasthan High Court Rules read with Section 151 CPC.

The facts which have given rise to this application may be shortly stated Hiranand filed a second appeal in this court on 1er Section 100 CPC against the judgment of the Additional District Judge No. 2 Jodhour, on February 27, 1973. This appeal was registered as S.B. Civil Regular Second Appeal No. 187 of 1973, It came up for hearing before the Hon''ble J.P. Jain J At the close of the hearing, the learned Judge dictated the judgment to a short, hand writer in open court on 10.9.1975, in presence of the learned Counsel for the parties and dismissed the appeal. By the order of the learned Judge, the fact dismissing the appeal was recorded in the order sheet by the Reader of the Court on mat very day, i.e. September 10, 1975. Before the transcript of the judgment could be signed by the learned Judge he unfortunately expired. As per Rule 88 of the Rajasthan High Court Rules, the Registrar, after boring the orders from Hon''ble the Acting Chief Justice appended the following note at the end of the typed transcript of the judgment:

The judgment was dictated and delivered in open Court by the Hon''ble Justice J.P. Jain on September 10, 1975. His Lordship''s signature could not be obtained on the judgment because of his sad demise on 17-9-1975.

On December 4, 1975, the legal representatives of the deceased appellant Hirananl (who died during the pendency of the appeal moved the present application with the prayer the since the transcript of the judgment pronounced by the late Hon''ble J.P. Jain J. on September 10, 1975 as not signed by the learned Judge, it is Dot a judgment in the eye of law and therefore the second appeal No. 187 of 1973 should be deemed to be still pending before this Court. This application is vehemently opposed by the learned Counsel for the respondents.

The relevant law on the subject is, contained in Rules 30 and 31 of Order 41 of the Code of Civil Procedure. Rule 30 provides that the appellate court after bearing the parties or their pleaders and referring to any part of the proceedings, whether on, appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment to open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders. This rule contemplates oral pronounce rent of the judgment in the open court at cocaine soon after the conclusion of the hearing. Then comes Rule 31, which is important. It runs thus.

Contents, date and signature of judgment (1) The judgment of the Appellate Court shall be in writing and shall sate-

(a) the points for determination:

(b) the decision thereon;

(c) the reasons for the decisions and,

(d) where the decree appealed from is reversed or varied the relief to which the appellant is entitled:

and shall at the time that it is pronounced be signed and dated by the Judges or by the Judge concurring therein.

(2) Where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed, necessary, be signed by the Judge and shall bear the date of its pronouncement.

(3) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialed by him.

Mr. Agarwal, learned Counsel for the applicants, has moved the application under Order 20 Rule 3 of the CPC Since we are concerned here with the appellate judgment, the appropriate provisions of law applicable to the case are Rules 30 and 31 of Order 41 Code of Civil Procedure. Even so, let us examine, Rules 1, 2 and 3 of Order 20; which relate to judgment delivered by the trial court. Rule 1 of Order 20 provides that the Court after the case has been heard, shall pronounce judgment in open Court, either at once or as soon thereafter as may be practicable, on some future day and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders." This rule like Rule 30 of Order 41 CPC provides for oral pronouncement of a judgment in open court at once i.e., soon after the hearing is concluded Then Rule 2 says that "a Judge may pronounce judgment written but not pronounced by this predecessor " Then comes the important Rule 3, which is almost similar to Rule 31 of Order 41 C.P.C. It runs thus:

3 Judgment to be signed (1) The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it, and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review.

(2) Where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.

(3) In cases where judgment is not written by the judge in own hand, and dictated and taken down verbatim by another person, each page of the judgment shall be initialed by the Judge.

On the basis of the above rules, it is urged by Mr. Agarwal, learned Counsel for the applicants, that it is only if the judgment is signed that it cannot be altered or added to except by review or u/s 152 of the Code of Civil Procedure, and therefore, as long as the typed transcript in the present case was not signed by the late Hon''ble J.P. Jain J, the judgment was not effective, for, the learned Judge, if he hid survived would have altered or revised or even set it aside. Mr Agarwal, in support of his view, placed reliance on a Full Bench decision of the Allahabad High Court in Sangam Lal v. Rent Control and Eviction Officer and Ors. AIR 1986 All 221 and a Division Bench decision of the same High Court in Beni Madho Prasad Singh Vs. Adit and Others,

Before dealing with the cases cited by Mr. Agarwal, we should like to refer to the decision of their Lordships of toe Privy Council in Firm Gokal Chand Jagan Nath v. Firm Nand Ram Das Atma Ram AIR 1933 PC 292. Their Lordships pornted out:

Rule 31 of Order 41 does not say that if its requirements are not complied with, the judgment shall be nullity.

We may add that none of the provisions of the CPC including Rules 30 and 31 of Order 41 and Rules 1, 2 and 3 of Order 20 lays down that non compliance of its provisions shall result in invalidating the judgment dictated and pronounced in open court and not signed by the Judge At page 295, their Lordships of the Privy Council observed,-

So startling a result would need clear and precise words. Indeed the Rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The Rule from its very nature is hot intended to affect the rights of parties to a judgment It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reason noble opportunity to sign it. The Court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more comment but even so the Convenience of the Court and the interest of litigants must prevail. The defect is merely an negative. But in truth the difficulty is disposed of by Section 99 and 108 Civil P.C. Section 99 provides that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any error, defect or irregularity to any proceedings in the suit not affecting the merits of the casa or the jurisdiction of the Court. That Section comes in the tart a along with appeal turn original decrees But Section 108 applies toe same provision to appeals from appellate decrees end it is always in the discretion of the Board to apply the principle on appeal to His Majesty in Council. In their Lordships'' judgment the defect here was an irregularity not I fleeing the merits of the case or the jurisdiction of the Court, and is no ground for setting aside the decree.

The facts there were quite the same as here because the judgment as actually delivered in open court and both the Judge, who constituted the Bench, were present and concurred in it. But before the transcript could be signs, one Judgment on leave. Their Lordships of the Privy Council held that the fact that the judgment was not stgned by one of the Judges, constitute a matter gallantly any which could be cured.

Having regard to this conclusion of their Lordships of the Privy Council, it must be head in the present case that the judgment dictated by the by the Hon''ble J.P. Jian J. in open court in the presence of the parties is a valid judgment of this court even though the typed transcript of the judgment could not be signed by the learned Judge.

Rules 85 to 88 of the Rajasthan High Court Rules make the position Rule 8(1) provides that after a cane has been heard, judgment may be pronounced either at once or on some future date which shall be notified in the Day''s List according to these Rules. Rule 85(3) lays down that where a case has been heard by a single judge and judgment has been reserved, his judgment may be pronounced, if such Judge be not present by the another judge. Rule 86 save that where the judgment or order is delivered raptly in open Court, u shall be taken down by a judgment writer and a transporter of shall t cirri part of the record Rule 87 says that the transcript of she lodgment or order prepared by the judgment writer shall be filed by him With the paper book or record of the case to which it relates not later than three days from the date on which such judgment or order was de ivered, Rule 88 reads thus:

88(1) When the transcript of the judgment or order prepared by the judgment writer has been filed with the paper-book or record of the case, the Bench Reader shall submit it to the Judge or Judges who delivered it. It shall then be signed nr initialed by such Judge or Judges after such corrections as may be consisted necessary. Thereafter it shall be sealed with the seal of the Court by the Bench Reader.

(2) When a Judge by whom the judgment or order was delivered is not available on account of illness, retirement or any other cause, the transcript shall be submitted to the Chief Justice and it may be sealed under his orders without the signatures of such Judge, a note to that effect being made on such judge mentor order under the signature of the Registrar.

(3) Where a written judgment or order is delivered it shall, after it has been signed or initialed by the Judge or Judges delivering it, be sealed with the seal of the Curt by the Bench Reader.

Rule 88(2) lays down in clear terms the procedure to be followed where the Judge, by whom the judgment or order was decided in open court, is not available Subsequently on account of illness, retirement or any other cause. In the present case the Procedure laid down in Rule 88(2) was followed on the death of the Hon''ble J.P. Jain J. and the transcript of the judgment decided by him on September 10, 1975, was submitted to Hon''ble the Acting Chief Justice, who ordered the Registrar to seal the judgment without the signature of the late Hon''ble J.P. Jain J. The Registrar thereupon appended a note of the effect at the end of the transcript of the judgment Mr. Agarwal contends that the procedure laid down in Rule 88(2) apples only if the Judge, who delivered of dement was not available on a court of illness, retirement or any other Sitmilar cause. According to Mr. Agarwal, this rule has no applicability where tie judge, were delivered or dictated the judgment in open court, seid before has gntd the transcript of the judgment. To out nviod, the contention it wholly untenable Rule 88(2), in our opinion, fully applies where a judge, by whom a judgment or order is delivered, is not available on account of his death The words "any other cause" must be read in ejusdem generis with the words "not avaiiable", which includes death.

We now take up the case cited by Mr, Agarwal The first case on which relisnce has been placed is a Full Bench decision of the Allahabad High Court in Sangam Lal v. Rent Control and Eviction Officer, and Ors. AIR 1986 All 221. It lays down as under,-

�There is Dower of ''review'' both in csses wherr judgment has been delivered but not signed & cases in which judgment has been delivered, signed and sealed in the former case the power to alter or amend or even to change completely is unlimied provided no ice is given to the parties and they are heard before the propo std change is made, while in the latter case the power is homed and review is permitted only on very nanow grrunde. What therefore of the view that Faulad and Another Vs. State, was rightly decided and our answer to the quesion referred to as fellows:

A judgment which has been orally dictated to open Court can be completely changed before it is ngned ana sealed provided notice is given to all parties concerned and they are heard beiore the chaegs is made.

This Full Bench case of Allahabad High Court is not of much a assistance to Mr. Agarwal as it did not take into consideration what will happen if the judgment cictated to he judgment writer in open court io the presence of the parties could not be signed owing to the death of the judge, who pronounced and dictated tbe judgment. In such a case, no question of changing it alter notice to the parties can arise. That apart, the Full Bench decision referred to above is based on the decision of the Supreme Court is Surendra Singh and Others Vs. The State of Uttar Pradesh, waere the facts were these. Tow Judge of the High Court of Allahadad (Lucknow Bench) beard a criminal appeal in which the judgment wag reserved. Before it could be delivered, one of the Judges was transferred to Allahabad While there, he dictated a ''judgment'' as purporting to do so on behalf of himself and his brother Judge, that is to say, it purported to be a joint judgment, be used the word ''we'' and not ''I'', He. signed every page of the judgment as well as at the end, but did not date it. He then sent this Judgment to the other Judge at Lucknow. Unfortunately the other Judge died before the judgment WAS delivered After his death, his brother Judge purported to deliver the judgment of the Court. The question for decision before the Supreme Court was whether this judgment could be validly delivered after the death of one of the two Judges, who heard the appeal Their Lordships held that the judgment is not a valid judgment. In reaching this conclusion, it was pointed out at page 196-,

Now up to the moment the judgment is delivered Judge have the right to change their mind, There is a sort of ''locus penitential'' and indeed last minute alternations often do occur. Therefore, however much a draft, judgment may have been signed before hand, it is nothing but a draft tilt formally delivered as the judgment of the Court. Only then does it crystals into a full fledged judgment and become operative. It follows that the Judge who delivers'' the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Come at the moment of delivery so that he can, if necessary, stop delivery and say that be has changed his mind. There is no need for him to be physically present in court but be must be in existence as a member of the Court and be in a position to stop delivery and effect an alt ration should there be any last minute change of mind on his part....

The facts of the Supreme Court case do not afford an analogy to the instant case. That was a case of reserved judgment where one of the members of the Bench died before the judgment was delivered. In the present case, the judgment of the Court was dictated and formally pronounced in the opt n court in the presence of the parties. The Supreme Court, in the above case, has also considered the question as to what is a judgment and when it become effective, The relevant observations of their Lordships run as under,-

A judgment is the final decision of the Court intimated to the parties and to the world at large by formal ''pronouncement'' or ''delivery'' in open court. It is a judicial act which mute be performed in a judicial way. The decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. This is the first judicial act touching the judgment which the Court performs after the bearing Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the Court. That is what constitutes the ''judgment''.

Proceeding further, their Lordships observed.-

As soon as the judgment is delivered, that becomes the operative pronouncement of the Court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceeding consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.

It is thus abundantly clear from the observations of their Lordships of the Supreme Court that once the judgment is delivered in open court after the matter is heard in presence of the parties, it becomes affective and operative and the subsequent part of revising, correcting and signing or authenticating the same, would be a matter of procedure. The judgment no sooner it is formally declared with the intention of making it operative it becomes final & effective and it makes no difference whether it is signed or not. After explaining what the judgment is, their Lordships, in paragraph 10, observed.

...Small irregularities in the manner of pronouncement or the mode of delivery do not matter but toe substance of the thing must be there; that can neither be blurred not left to inference and conjecture not can it be vague. All the rest the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter can be cured; but not the hard core, namely the forma intimation of the decision and its contents formally declared in a judicial way in open court. The exact way in which this is done does not matter In some Courts toe judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed alter giving notice to the parries and laying the draft on the table for a given number of days for inspection.

Their Lordships then observed:

It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the rime of pronouncement. We lay no stress on the mode of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court.

Bearing in mind, the above principles and taking into account Rule 30 of Order 41, which provides for oral pronouncement of judgment in open court either at once or on a subsequent day, it can safely be said that it is the final expression of the Court intimated to the parties and the world at large, that matters and cot the signing of the judgment.

The next case on which Mr. Agarwal has placed reliance is Beni Madbo Prasad singh v. Adit and Ors. AIR 1933 PC 292. In this case, on the close at the bearing, the two learned judges dictated the judgment in open court, they allowed the appeal, set aside the decrees of the courts below and decreed the claim of the plaintiff-appellant with costs. Before the transcript of the judgment was signed by the learned Judge, the case was mentioned to them and they felt the necessity of having sons points further clarified by further arguments from the counsel. The learned Judge, thereafter, heard further arguments and since the arguments were not concluded, it was ordered that the case may be listed again after a week for further arguments. After this stage, the case was never listed before the learned Judge for one reason or the other, and lot of time elapsed. In this interval, both the learned Judges ceased to the Judges of the Court i.e. Allahabad High Court. The appeal was then listed before another Bench It was then argued that the appeal must be deemed to have been heard and finally disposed on the date the former Bench dictated the judgment in open court and allowed the appeal. This contention was over ruled by the learned Judges on the ground that so long as the transcript of the judgment was not signed, the power of the court to reconsider its order or rehear the case, was not put an end to. The facts of this case are, clearly distinguishable in as much as in the above case, the learned Judges who dictated the judgment in open court, they themselves before signing the transcript of the judgment, felt the necessity of rehearing the arguments and actually reheard the case In our opinion, the facts of this case are clearly distinguishable and cannot be applied to the facts of the present case.

For the reasons stated above, we find no substance in the application. It is dismissed with costs.