P. Chandba Reddy, Offg. C.J.
1. This civil revision petition raises an important question of procedure, namely, the scope of Order XX Rule 2, C.P.C., and that is why it has been referred to a Bench by our learned brother, Satyanarayana Raju, J.
2. The point that falls to be decided in this revision petition is, whether a succeeding Judge has option to try a suit de novo or whether it is obligatory on him to pronounce the judgment prepared hut not pronounced by his predecessor.
3. It is urged or behalf of the petitioner that Order 20, Rule 2, C.P.C. which recites that 'A Judge may pronounce a judgment written but not pronounced by his predecessor' casts a duty on the succeeding Judge to pronounce the judgment prepared by his predecessor and that he has no opinion in the matter. The position taken by the learned counsel for the respondents is that the succeeding Judge has an absolute discretion in the matter and he is not bound to pronounce the judgment written by the predecessor.
In support of this contention, he relies upon the decisions in Lachman Prasad v. Ram Kishan, ILR 33 All 236 (A) and Hargulal v. Abdul Gany, AIR 1936 Rang 147 (B). We find it difficult to give effect to the contention urged by the learned counsel for the respondents or follow the rulings cited by him. In ILR 33 All 236 (A), there is no discussion on the subject, and the learned Judges agreed with the opinion expressed in In The Goods of Premchand Moonshee. ILR 21 Cal 832 (C), and In re Baker, Nichols v. Baker, (1890) 44 Ch D 262 (D).
We fail to see now either ruling furnishes any guidance in regard to the interpretation of Order XX Rule 2 C.P.C. ILR 21 Cal 832 (C), was concerned with the scope of Section 380 of the Civil Procedure Code of 1882 corresponding to Order XXV, Rule 1 of the present Code which vests a discretion in a Court to direct the plaintiff to furnish security for costs.
All that was decided in (1890) 44 Ch D 262 (D), was that the power given by the Bankruptcy Act, 1883, to transfer the administration of an insolvent estate from the Chancery Division to the Court of Bankruptcy, was a discretionary power and that the Judge was not under an obligation to exercise it whenever the estate was found to be insolvent. In that very judgment, a distinction was made between the discretion vested in a Court without a duty to exercise it in favour of an individual and a power coupled with a duty on the Court or a person to whom it is given to use that power in a certain particular way.
There is definite pronouncement by the Lord Justices that if the power given was of the latter category, the Judge or the person who is entrusted with that power is bound to exercise it and it is not discretionary with him to exercise it or not. Coming to the decision of the Rangoon High Court, the observations relied on by the learned counsel for the respondents are that under Order XX, rule 2 C.P.C., it is not necessarily incumbent upon the successor of the Judge who wrote a judgment after he had ceased to be a Judge of the Court in which the trial was held, to pronounce the judgment that had been written by his predecessor.
That is a case where the officer who wrote the judgment had ceased to be a Judge at the time he prepared the judgment. In such a set-up, it is not clear whether the learned Judges felt that the succeeding Judge had the option to pronounce or not having regard to the fact that the predecessor had ceased to be a Judge at the time the judgment was written, or that Order XX, rule 2 C.P.C., conferred an unfettered discretion in the succeeding Judge either to pronounce the judgment written by his predecessor or to deliver his own judgment or to hear the suit or appeal de novo.
If the observations are meant to convey the idea that the succeeding Judge is at liberty to choose either of the two courses, we have to express our respectful dissent from them. It may also be observed that they are merely obiter and were not necessary for the decision of the case.
4. There is a recent pronouncement of the Orissa High Court in Pratap Kishore v. Gyanendranath, : AIR1951Ori313 (E), where the matter was dealt with at some length by Jagannadha Das, J. The learned Judge expressed the view that the succeeding Judge is bound to pronounce the judgment prepared by his predecessor and that it is not optional for him to do it or not.
As pointed out by the learned Judge, a Judge who had not heard the evidence or the arguments in a case, could not be in a position to give a statement of the grounds for the decree in that case. Obviously, the purpose underlying this provision is to save judicial time. If it is discretionary with the succeeding Judge to hear the matter de novo it would involve waste of judicial time and cause a great deal of hardship and inconvenience to the parties.
Though the word used in the rule is 'may' we think it is mandatory upon the succeeding Judge to pronounce the judgment written by his predecessor, and it is not open to him to re-open the whole matter. It is true that the word used is 'may' and it cannot be postulated that it always means 'must'. Since a duty is cast on the Judge to pronounce judgment in the interests of litigant public and in the main to save judicial time, he is bound to exercise it and thus the expression 'may' has the force of 'must' in that behalf. In this context, we cannot do better than extract a part of the speech of Earl Cairns, L.C. in Julius v. Lord Bishop 5 Oxford, (1880) 5 AC 214 at p. 225 (F) which runs thus:
'Where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.'
5. There is also another consideration which is pertinent in the context of this enquiry. If, as is contended by the learned counsel for the respondents, the succeeding Judge has a choice in the matter, there is no provision in the Code for the guidance in the exercise of this discretion.
We do not think that the legislature would have intended to leave an uncontrolled and unregulated discretion to the succeeding Judge either to pronounce the judgment written but not pronounced by his predecessor to pronounce his own judgment on the material on record or to hear the matter de novo. It could not have been the intendment of the legislature to leave it absolutely to the presiding Judge to choose what course he liked in the matter.
This is a circumstance which has certainly somebearing on the enquiry. In these circumstances wethink that the word 'may' occurring in Order XX,Rule 2 C.P.C. has a compulsory force and the succeeding Judge is under an obligation to pronouncethe judgment that was written by his predecessorand it is not competent for him to re-hear the appeal. It follows that the Civil Revision Petitionmust be allowed and we accordingly do so. Thelearned Subordinate Judge is directed to read theJudgment written by his predecessor. The partieswill bear their own costs throughout.