1. These writ petitions were heard by late Justice Vaidya on 19-4-1972 and 20-4-1972 and he reserved judgment. It appears that he dictated this judgment at home to the shorthand writer and the judgment was duly typed. But unfortunately before he could pronounce the judgment in open Court, Justice Vaidya passed away. The matter was placed before me for pronouncing the judgment prepared by late Justice Vaidya. As I however felt some doubt about the feasibility of such a course, I heard the counsel on both sides on this aspect of the matter. Having considered the matter carefully in the light of their submissions, I have very reluctantly come to the conclusion for the reasons set out below that it is not permissible for me to pronounce the judgment which was dictated at home by Justice Vaidya before his death. It may also be stated that the judgment typed according to his dictation was not signed by him, as it is the usual practice for a Judge in the case of a reserved judgment to read the judgment in open Court on a day fixed for that purpose after giving notice to counsel on both sides and to sigh the judgment after pronouncing the same in open Court.
2. Proceedings under Article 226 of the Constitution are governed by Rules made by the High Court under that Article. Among those rules there are none relating to the pronouncing of judgments. Rule 20 however states that all other rules relating to causes and matters coming before the appellate side of the High Court will apply to writ petitions and writ appeals in so far as they are not inconsistent with these rules.
3. Order XLI, Rule 31 of the Civil Procedure Code deals with the contents, date and signature of judgments in regards to appeals from original decrees. Inter alia the rule provides that the judgment of the Appellate Court shall be in writing and where the presiding Judge is special empowered by the High Court to pronounce his judgment 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 Judges. Order XLI (A) however says that Order XLI Rule 31 shall not apply to the High Court. If a judgment is given orally, the shorthand, notes thereof shall be taken by an Officer of the Court, and the transcript made by him shall be signed or initialled by the Judge or Judges concurring, thereunder after making such corrections as may be considered necessary. Order XLI (A) Rule (A) (1) provides that the rules contained in Order XLI shall apply to appeals in the High Court of Judicature with the modifications contained in this order. Thus it is seen from the provisions of Order XLI A Rule (1) Rule 14 (Order ELI A Rule 14 ?) read with Rule 20 of the Rules framed under Article 226, that there is no specific provision as to what is to happen in the case of judgment which is reserved and which is dictated thereafter by the learned Judge and typed and the Judge unfortunately dies before he pronounces the judgment in open Court without signing the judgment.
4. Order XX, Rule (2) which deals with trial Courts provides that a Judge may pronounce a judgment written but not pronounced by his predecessor. The rule however is inapplicable to judgments in Writ proceedings though the said proceedings are extraordinary original proceedings on the side of the High Court, as under the rule made under Article 226, is only the rules which govern appeals on the appellate side of the High Court that are applicable so such proceedings. Apart from this, it cannot be said that a Judge who dies is in any sense a predecessor of another Judge of the same High Court within the meaning of Order XX, Rule (2).
5. Hence the question whether any Judge of this Court can pronounce the judgment dictated by a deceased Judge has to be considered on general principles. The Supreme Court had occasion to consider a somewhat similar situation in Surendra Singh v. State of Uttar Pradesh, : 1954CriLJ475 . In that case a Criminal Appeal was heard by a Division Bench of the Allahabad High Court. Judgment was reserved. One of the Judges Justice Bhargava dictated a judgment purporting to do so on behalf of himself and his brother Judge, and he used the pronoun ' 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 to the other Judge, Justice Kidwai. But before the judgment was delivered, Justice Bargava died. Justice Kidwai however purported to deliver the judgment of the Court and then signed it and dated it. The question for consideration before the Supreme Court was whether that judgment could be said to have been validly delivered after the death of one of the two judges who heard the appeal. The Supreme Court observed that upto the moment the judgment is delivered judges have the right to change their mind. There is a sort of ' locus paenitentiae ' and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the Judgment of the Court. Only then does it crystalise into fullfledged 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 existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but take no steps to arrest delivery. They further observed that the mere signing of the draft does not necessarily indicate a closed mind.
6. These observations apply with greater force to the present case. Here late Justice Vaidya was the only Judge who heard the case. Further he had not even signed the typed judgment which was prepared at his dictation. It may be, he would have signed it after he pronounced it later. But he had the right to change his mind at any time before he actually delivered the judgment. It is true that the case before the Supreme Court was a Criminal Appeal and the Supreme Court also relied on Section 369 of the Code of Criminal Procedure. But the observations extracted above apply to other cases whether civil or criminal.
7. Another judgment which was brought to my notice is that of Justice Satyanarayana Raju in Jangam Bhadriah v. Member, Board of Revenue, ( 1963 ) 2 Andh WR 243. In that case a regular appeal was heard by Justice Satyanarayana Raju and Justice Ramachandra Rao. As both the Judges were unanimous in their conclusions, Justice Satyanarayana Raju pronounced the judgment of the Bench in open Court. It was later transcribed and signed by Justice Satyanarayana Raju. Unfortunately before Justice Ramachandra Rao could sign the judgment, he died. It was thereafter pronounced by Justice Satyanarayana Raju on behalf of both, in open Court. In considering the validity and correctness of this procedure, Justice Satyanarayana Raju observed that the final decision of the Court was formally pronounced and delivered in open Court. Both the Judges who constituted the Bench were present and concurred in it. The fact that the Judgment was not signed by one of them is a mere irregularity and can be cured. The decision of the Supreme Court in : 1954CriLJ475 was distinguished on the ground that that was a case where the judgment had not been pronounced in open court but had been reserved and one of the Judges died before the Judgment was delivered. I agree with what is stated by Justice Sartyanarayana Raju. The Supreme Court itself pointed out this distinction while dealing with the decision of P. C. In Firm Gokal Chand v. Firm Nand Ram, AIR 1938 PC 292 which was cited before them. They observed that the facts in that case were not quite the same as those before the Supreme Court because the judgment in that case was actually delivered in open court and both the Judges who constituted the Bench were present and concurred in it, but before it could be signed, one Judge went on leave. It was in that connection the Privy Council observed that a Judge may die after giving judgment but before he has had a reasonable opportunity to sign it and the Court must have inherent jurisdiction to supply such a defect. The Supreme Court pointed out that a judgment is the final decision of the Court intimated to the parties and the world at large by formal ' Pronouncement ' or ' delivery ' in open Court. The manner in which it is to be recorded, the way in which it is to be authenticated etc., can be cured ; but the not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open Court.
8. Having regard to the principles laid down by the Supreme Court in the above case, I am of the view that the judgment which was dictated at home by Justice Vaidya to his shorthand writer and typed by the latter and not signed by Vaidya.J., is of no effect and it is not permissible for another Judge to pronounce it in open Court. Though this would entail a re-hearing of the petitions involving additional labour on the part of the counsel and the court, I am forced to come to the above conclusion, in view of the legal position. These writ petitions will be posted in due course. Post these writ petitions after ten days.
9. Order accordingly.