Straight, Offg. C.J.
1. In my opinion the question put by this reference must be answered in the affirmative. It is not contested that the learned Subordinate Judge has jurisdiction territorially and peculiarly to try the suit, and the single point appears to be, did he try it, or, in other words, did he hold a legal trial? It is conceded by the appellants learned Counsel that no objection was raised before the Subordinate Judge to his taking up and dealing with the case in the way that he did; on the contrary, he is admitted to observe correctly in his judgment, where he says--'I have heard very able and lengthy arguments on both sides. The evidence has been minutely dissected and criticized, and many probabilities urged upon both sides.' It is obvious from this passage that, if there could have been a waiver on the part of the appellants in reference to the action of the Subordinate Judge, of which they seek now to complain in special appeal, there was such waiver. In short, their position is this, that having appeared before the Subordinate Judge and consented to his doing what he did, and thus taking their chance of succeeding on the merits, they are nevertheless now to be allowed to turn round and say all that was done was illegally done, and there was no trial at all. I presume it would hardly be seriously contended that if a Court issue a summons to a defendant to appear on a certain date for the mere settlement of issues, and the defendant appears on that date and consents to the suit being then and there disposed of, and makes his defence, such defendant can afterwards be permitted to object that the summons to him was for settlement of issues only, and not for final disposal of the suit. I confess I see no serious distinction between such a case and the present, where the Subordinate Judge having undoubted jurisdiction to try the suit, the parties consented to his trying it by waiving certain rules of procedure enacted in the interests of suitor's personally, and not for any public object. I cannot think that the late learned Chief Justice of this Court, in the decisions quoted by the appellants' learned Counsel, ever intended to lay down that, under circumstances such as these, the Subordinate Judge must be held to have acted without jurisdiction, and that his proceedings, adopted on consent of parties, were void. If he did, I can only say with the most profound respect that I dissent from such a view, the inconvenience and hardship of giving effect to which would be strikingly illustrated by the particular case out of which the reference has arisen.
2. For these reasons, as stated at the outset of my remarks, I answer the reference in the affirmative.
4. This reference raises a question in regard to the scope and intent of the provisions of Section 191, Civil Procedure Code, by which, when the Judge taking down any evidence or causing any memorandum to be made under Chapter XV dies, or is removed from the Court before the conclusion of the suit, his successor may, if he think fit, deal with such evidence or memorandum as if he himself had taken down or caused it to be made.
5. The question has already been before this Court in the case of Jagram Das v. Narain Lal I.L.R. 7 All. 857 and Afzal-un-nissa Begam v. AI Ali ante p. 35 and in the exposition of the law given by Petheram, C.J., relating to trial of cases when the trial had been begun by one Judge and taken up by another, I entirely concur.
6. Petheram, C.J., observes: 'His business (that of the Judge taking up the trial of a case begun by another) was to try the case according to law; and if he did not so try it, he had no jurisdiction to try it at all. All that he could properly do was to take up the case at the point which it had reached before the commencement of the hearing under Chapter XV of the Code. He should have fixed a day for the entire hearing of the suit before himself, and in that case the regular course would have been for the plaintiff's counsel to have opened his case and proved it by evidence, and for the defendant's counsel to have followed him. The Subordinate Judge should then have beard arguments on both sides, and should finally have decided the case which he had himself heard and tried. He might have called in aid the provisions of Section 191, Civil Procedure Code, which enacts that a Judge, in the hearing of a cause which was partly heard by another, may allow the evidence which was previously taken to be used before himself. If he had taken that course, the trial would have been perfectly regular; and if, upon the day fixed for the hearing, he had first heard the opening statement on behalf of the plaintiff, and then allowed the plaintiff to prove his case by putting in the depositions which had been taken before his predecessor, his proceedings would not have been open to objection. 'And in Afzal-un-nissa Begam v. Al Ali he observes: 'The question then arises: What was the duty of Maulvi Zain-ul-abdin? I think that when the case was called on before him on the 9th December, he ought to have fixed a date for the hearing, that is to say, for the entire hearing and trial of the case before himself. He might, at the request of the pleaders, have fixed the same day, the 9th December, and proceeded to try the case at once. But by the act of fixing a date he would have avoided the danger of making it appear possible that he was deciding a case which he himself had not heard. Then, when the time fixed--either the same day, by such an arrangement as I have suggested, or a future date--arrived, the trial would proceed in the ordinary way as if the day were the first day on which the case had ever come on for hearing, except that the parties should be allowed, by Section 191 of the Civil Procedure Code, to prove their allegations in a different way. The Code has provided a mode of avoiding the inconvenience which might arise if the witnesses had to be called twice over, if neither the parties nor the Judge consider such a course to be necessary. But no Court can, in ray opinion, extend the operation of the Statute so as to enable a new Judge to take up a trial which has been partly heard by his predecessor, and to proceed with it as it bad been commenced before himself.'
7. In the above observations I entirely concur.
8. The law permits a Judge taking up a trial begun by another Judge, to deal with the evidence taken by his predecessor as if he himself had taken it down; but this permission doss not relieve him of the duty of dealing with it judicially, of trying the cause as though it had come before him in the first instance. The trial is, in fact, begun de novo before him; he may deal with the evidence already taken as if he himself had taken it, but he must deal with it judicially by allowing counsel to put in the evidence and hearing argument on it. In fact, there must be a hearing of the entire case before himself. The proper procedure, and the safest, to pursue is no doubt that pointed out by Petheram, C.J.
9. In every case, however, we have to see whether, as a matter of fact, there has been a real trial, a hearing of the entire case by the Judge; whether, looking to what has taken place, the evidence previously taken was judicially dealt with, counsel heard upon it, and the entire case fully heard and tried. If this has not been done, there has been no trial in the legal sense of the word, and the proceedings must he bet aside.
10. In the case referred to us, I find that the Judge fixed a day for hearing, and having heard counsel on the case, delivered judgment. There is no reason to suppose that the trial was other than sufficient and proper, and that there was not an entire hearing of the cause.
11. The question referred to the Full Bench in this case is--'Whether, with reference to the first and second grounds of appeal, and having regard to the circumstances disclosed in the proceedings of the Court of First Instance, that Court, or the officer presiding therein who passed the decree, had jurisdiction to deal with and determine the suit in the mode in which he did.' The two grounds of appeal referred to in this question are--'First, because there exists a substantial defect in, the procedure followed by the learned Subordinate Judge who decided this case, which renders the proceedings in this case void, inasmuch as no evidence was taken before the learned Subordinate Judge who passed the decision referred to, and that officer's judgment is based solely on evidence recorded by his predecessor; and secondly, because the learned Subordinate Judge cannot be said to have tried the case.'
12. Neither of these grounds was taken in the Lower Appellate Court, and there can be no doubt, as was intimated by the learned Counsel for the appellant, that these gounds have been taken owing to the practice which has sprung up in this Court, during the last year, in consequence of two rulings of Petheram, C.J., the late learned Chief Justice of this Court. The first of these rulings is the case of Jagram Das v. Narain Lal I.L.R. 7 All. 857 the effect of which can be best summarized in the words of the head-note in the report. In that case a Subordinate Judge having taken all the evidence in a suit before him, and having completed the hearing of the suit, except for the arguments of counsel on both sides, was removed, and the case came on for hearing before his successor. The new Subordinate Judge took up the case from the point at which it had been left by his predecessor, and proceeded to judgment and decree. It was held that the only power given by the Civil Procedure Code in such cases is to allow the evidence taken at the first trial to be used as evidence at the second trial, and not to allow the two hearings to be linked together and virtually made one; that the Subordinate Judge should have fixed a day for the entire hearing of the suit before himself, and should first have heard the opening statement on behalf of the plaintiff, the evidence produced by both sides and the arguments on behalf of both, and then, finally, decided the case which he had himself heard and tried; that he might, in accordance with the provisions of Section 191 of the Civil Procedure Code, have allowed the depositions which had been taken before his predecessor, to be put in and that, in neglecting to take this course and in deciding the case upon materials which were never before him, his action was illegal, and the judgment and decree were nullities. This ruling--to use the words of Petheram, C.J., himself--'led to some confusion as to the mode in which cases of this kind should be dealt with; 'and the learned Chief Justice in a later ruling--Afzal-un-uissa Begam v. Al Ali ante p. 35 took opportunity to point out what appeared to him the course which should have been adopted in that case, which he regarded as 'a fair illustration of what commonly happens.' The head-note of the report in that case summarizes the effect of the ruling, and it appears that what happened in that case was, that a Subordinate Judge, having taken all the evidence in a suit before him, adjourned the case to a future date for disposal. Upon the date fixed a further adjournment was made. The Subordinate Judge, at this stage of the proceedings, was removed, and a new Subordinate Judge was appointed. It was held by the learned Chief Justice that the trial, so far as it had gone before the first Subordinate Judge, was abortive, and, as a trial, became a nullity; and it was also held that the duty of the second Subordinate Judge, when the case was called on before him, was to fix a date for the entire hearing and trial of the case before himself; that he might, at the request of the pleaders, have fixed the same day upon which the case was called on, and proceeded to try it at once; and that the trial should then have proceeded in the ordinary way, except that the parties would be allowed, under Section 191 of the Civil Procedure Code, to prove their allegations in a different manner.
13. These two rulings constitute the exposition of the law upon which Mr. Colvin has relied, and it will be my duty to consider the ratio decidendi upon which these two rulings proceed. But the learned Counsel has also relied upon certain unreportel cases which were submitted at the hearing. One is the case of Mulik Fakir Bakksh v. Chaukarja Bakhsh Singh F.A. No. 88 of 1884 decided on the 7th July 1885--in which Petheram, C.J., made certain observations, which may be quoted here at affording indications of the view which he entertained: 'It appears to be a general opinion in this country that it is in the power of a new Subordinate Judge to take up a case which has been partly heard by his predecessor, and to continue the same trial; and so in this case the parties appear to have given a sort of consent to the adoption of this course. But I am of opinion that this view of the law is wrong. A trial must he one, and must be held before one Court only. There are provisions which enable evidence taken by one Judge to be put in and used as evidence by his successor; but there is nothing to authorize a Judge to take up a case which has been partly heard before his predecessor, and to continue it from the point at which his predecessor left off. He could only allow the evidence previously taken to be used as evidence under Section 191 of the Civil Procedure Code, in a case wholly tried by himself. 1 have already fully explained my views on this subject in the case of Jagram Das v. Narain Lal; and for the reasons which I there stated, I am of opinion that this trial must be treated as a nullity, that therefore all proceedings subsequent to fixing the issues, must be set aside, and that the Subordinate Judge must reinstate the case upon his file, and try it according to law.' The next unreported case which has. been cited is Sah Kirpa Dayal v. Musammat Ram Kishori F.A. No. 108 of 1884 decided on 3rd November 1885--to which Petheram, C.J., was again a party, and in which the ruling in the case of Jagram Das was again followed, with the result of annulling all the proceedings, and directing a fresh trial of that case and also of another connected case' according to law.' Again, another unreported case is Musammat Jasodha Kuar v. Lal Ishri Prasad Narain Singh F.A. No. 127 of 1884 decided on 3rd February 1886--in which the ruling in Afzal-un-nissa Begam's Case was simply followed, and the whole trial was declared to be bad in law, and the proceedings being annulled, the case was remanded to the Court below, to be placed on the register of original suits and disposed of 'according to law.' The same was the view followed in another unreported case--Shaikh Ghulam Imam v. Shaikh Jafar Ali S.A. No. 980 of 1885 decided on 26th March 1886--and this is the last of the unreported cases which have been cited by Mr. Colvin as having regulated the practice of this Court since the two rulings of Petheram, C.J., which have been reported and already referred to.
14. As there has been much difference of opinion as to the exact meaning and effect of these rulings, I think it is necessary to analyze the various steps of reasoning upon which the judgments of Petheram, C.J, seem to proceed according to my interpretation. The various points which indicate the line of His Lordship's argument are:
(1).--'A trial must be one, and must be held before one Court only.'
(2).--When a suit is tried the 'original date would be the date of hearing, and all subsequent dates would be those of adjournments;' so that where a trial goes on for more than one day, every hearing after the original date ' would be a proceeding held by adjournment in the trial heard on the original date,'
(3).--'There is nothing to authorize a Judge to take up a case which baa been partly heard before his predecessor, and to continue it from the point at which his predecessor left off.'
(4).--Where the Judge who had partly heard a case died or was removed, 'the trial, so far as it had gone before him, was abortive, and, as a trial, became a nullity, because the person conducting it had ceased to be a, Judge, and could not give judgment in a trial heard before him.'
(5).--The new Judge must, therefore, 'fix a day for the entire hearing of the suit before himself,' and must 're-bear it from beginning to end;' for the law does not 'enable a new Judge to take up a trial which has been partly heard by his predecessor, and to proceed with it as if it had been commenced before himself.'
(6).--There would thus be two separate trials and two different hearings-of the cause; and 'the law nowhere says that the two hearings may be linked together and virtually made one.'
(7).--Every succeeding Judge, who is appointed before the conclusion of the trial, must therefore fix a new day for commencing the trial de novo, and when the time arrived 'the trial would proceed in the ordinary way, as if the day were the first on which the case had ever come on for hearing.'
(8).--The evidence taken by the preceding Judge would not, by the mere fact of being upon the record, be evidence in such new trial, nor could it be dealt with as material upon which a judgment might proceed.
(9).--But in the trial before the new Judge 'the parties would be allowed, by. Section 191 of the Civil Procedure Code, to prove their allegations in a different manner;' that is, 'by putting in the depositions which had been taken before his predecessor.'
(10).--But if the depositions are not so 'put in,' that is, proved as evidence in the new trial, the Judge using them would be deciding 'a case upon materials which are not before him,' because such Judge had not 'taken the evidence' himself.
(11).--The former trial having already become a nullity, and the evidence taken therein not being put in as evidence in the new trial, the judgment and decree which may proceed upon such evidence would be 'absolute nullities;' because a Judge who, in trying a case, adopts such a procedure 'had no jurisdiction to try it at all.'
(12).--And when such judgment or decree is passed, the appellate Court, regarding the whole proceedings in the case as nullities, should set them aside and remand the case for a new trial.
15. These seem to me to be the various points laid down in the rulings to which 1 have referred, so far as I can understand them, and I have stated each proposition, as closely as I could, in the words of Petheram, C.J.
16. In this state of things it is important, for realizing the full bearing and effect of these cases, to observe that all of them, whether reported or unreported (with the exception of that last mentioned), were more or less heavy first appeals involving complicated questions of fact and troublesome questions of law; and also that in none of those cases did the appellant object in the Court of First Instance to the course which that Court adopted, nor did he complain of the course in his grounds of appeal by taking the point upon which this Court set aside all the proceedings of the Court below and ordered trials de novo. Indeed, in the case of Malik Fakir Bakhsh--to use the words of Petheram, C.J.--'the parties appear to have given a sort of consent to the adoption of this course'--the very course which the learned Chief Justice declared, apparently, suo motu, to be so null and void in law as to render the whole trial a nullity, and to necessitate the case being remanded to the first Court to begin the trial anew. The reason why I mention this circumstance is, that it is only in very exceptional cases that this Court, ever since I have had the honour of being associated with Mt, either as a member of the Bar or as a temporary Judge, allows parties appellants to obtain reversals of the decrees of the Courts below upon grounds not taken either as objections in the Court below or as grounds in the memorandum of appeal. And it is only in equally exceptional cases that this Court exercises the power which, as a Court of appeal it undoubtedly possesses, of basing its judgment upon grounds which the parties do not urge, and which do not form part of the ratio decidendi upon which the judgment of the Court below proceeds. Further, this Court, so far as I am aware, has been accustomed, till the new practice introduced by Petheram, C.J., during the last year, to bear in mind the enormous delay and expense which fresh trials involve, and the usual course has been to abide by the express mandate of the Legislature as contained in Section 564 of the Civil Procedure Code, which prohibits the remand of cases for second decision, except under conditions covered by Section 562 of the Code.
17. The policy of the law, as apparent from these sections, is obvious. Delay in the disposal of litigation and the expense to the parties, are considerations which the Legislature has not ignored, and the appellate Court, at least in first appeals, is invested with authority, under Section 566 of the Code, to remand issues for trial, if those issues have never been duly framed or tried; and Section 568 empowers the Court of Appeal to take further evidence itself, or to order such further evidence to be taken by the lower Court when necessary. It is only who the; erroneous view of the lower Court upon a preliminary point has prevented it from taking the evidence in the case, within the meaning of Section 562 of the Code, or where there is want of jurisdiction or absolute illegality, that trials de novo are ordered, and it must therefore be taken that in the heavy fir-it appeals above referred to, in which such fresh trials were directed, the only ratio could have been that the proceedings of the first Court in those cases were taken without jurisdiction and amounted to absolute nullity.
18. Now, in the case of Jagram Das, what happened was, that Maulvi Sami-ul-la Khan was the presiding Judge of the Court in which the suit was instituted, and a day was fixed for hearing of the case. Then, to use the language of Petheram, C.J., 'the plaintiff's counsel opened his case, and failed witnesses to prove it, who were cross-examined by counsel for the defendant. After this the defendant's counsel called his witnesses, and they were cross-examined, by the other side. All that remained was for the plaintiff's counsel to sum up and for the defendant's counsel to reply. At this point Maulvi Sami-ul-la Khan was sent on a special mission to Egypt and another Subordinate Judge, named Rai Cheda Lal, was appointed to officiate in his place, and the present case came before him among others which were pending in his Court.' Under this state of things the learned Chief Justice, referring to the new Subordinate Judge, went on to say: 'His business was to try the case according to law; and if he did not so try it he had no jurisdiction to try it at all.' I am bound to hold that the learned Chief Justice, in using the word 'jurisdiction,' duly realized the meaning of that expression as a term of law as distinguished from 'irregularity,' another term of law. Then the learned Chief Justice went on to say, with reference to the new Subordinate Judge: 'All that he could properly do was to take up the case at the point which it had reached before the commencement of the hearing, under Chapter XV, of the Code. He should have fixed a day for the entire hearing of the suit before himself, and, in that case, the regular course would have been for the plaintiffs counsel to have opened his case and proved it by evidence, and for the defendant's counsel to have followed him. The Subordinate Judge should then have heard arguments on both sides, and should finally have decided the case which he had himself heard and tried. He might have called in aid the provisions of Section 191 of the Civil Procedure Code, which enacts that a Judge, in the hearing of a cause which was partly heard by another, may allow the evidence which was previously taken to be used before himself. If he had taken that course, the trial would have been perfectly regular; and if upon the day fixed for the hearing, he had first heard the opening statement on behalf of the plaintiff and then allowed the plaintiff to prove his case by putting in the depositions which had been taken before his predecessor, his proceedings would not have been open to objection out he did nothing of the kind. He fixed no date for the hearing of the case as for a new trial; hut he practically arranged that it should be heard from the point at which his predecessor left off. In my opinion this was an absolutely illegal course, and one which cannot he justified by any system of law, and certainly not by the Civil Procedure Code.'
19. Now, with profound respect for the eminent legal authority from whom these observations emanate, I cannot help feeling that they proceed upon some misapprehension of the procedure of the Courts of First Instance in the Mufassal; and that the procedure taken by the Subordinate Judge, which was characterized by the learned Chief Justine as 'one which cannot be justified by any system of law,' was scarcely liable to such condemnation.
20. I think in dealing with a question of this kind it is important to consider first principles, and they are nowhere discussed better than in a whole chapter in the 'Rationale of Judicial Evidence, specially applied to English Practice,' by Jeremy Bentham, who has been justly called the father of English jurisprudence, and upon whose writings are undoubtedly based: the modem doctrines of judicial evidence and trials, not only in England, but in the neighbouring countries of Europe. The chapter is the VIIth of Book III in that celebrated work, and in dealing with the question whether the evidence Should be collected by the same person by whom the decision is to be pronounced, shows the pros and cons of the matter, leaving the result, on the whole, to be that delay and expense in the disposal of litigation is a worse evil than that of having judgments pronounced by persons who have not themselves taken the whole oral evidence in the case. But it is almost unnecessary to refer to such an eminent authority who deals with first principles of jurisprudence, because Petheram, C.J., might have been referred to a Full Bench ruling of the Bombay High Court, in which the judgment of Couch, C.J., now one of the Lords of the Privy Council, was concurred in by the rest of the Court, and in which that learned Chief Justice expressed the view that there is 'no rule of jurisprudence which requires that the evidence in the suit shall be taken by the Judge who pronounces the judgment, and the practice in many Courts being, as is well known, to the contrary.' This was said in the case of Naranbhai Vrijbhukandas v. Naroshankar Chandroshankar 4 Bona. H.C. Rep. A.C.J. 98 to which I shall have to refer again in the course of this judgment.
21. I make these observations with all the respect which is due to one who, till lately, occupied the position of Chief Justice of this Court; and I make them because the rest of the judgment in the ruling which I am now considering uses expressions which, I humbly think, are not clearly intelligible to the Mufassal Courts of this country, and which, speaking for myself, I can but faintly understand from the little that I may claim to know of English technical law. The learned Chief Justice said in his judgment that 'the law nowhere says that the two hearings may be linked together and virtually made one.' I frankly confess I find it difficult to understand what this sentence exactly means; for I am unable to realize that when there are two hearings what the link between them can be. The only way in which I can respectfully render this intelligible to myself, is to say that the learned Chief Justice, in delivering that judgment, was thinking of those technicalities of special pleading in English Common Law procedure which no longer find favour, even in the Courts of Justice in England, at least since Lord Selborne'S Judicature Acts, amalgamating the jurisdiction of Courts of Equity with those of Common Law, were passed. The learned Chief Justice probably had in his mind trials by jury in civil cases--trials which have a historical origin of their own in. England, and the principles of which on such points are wholly inapplicable to the administration of justice in British India. In cases of trials by jury, it is of course important that the whole evidence upon which the parties rely should be produced before the jury which has to deal with it, and it is only in this Sense that I can understand what the learned Chief Justice meant when he referred to two hearings being 'linked together and virtually made one.' And I may respectfully and frankly say that in no other sense is the phrase intelligible to me. Yet that phrase is the turning point of the whole effect of the ruling; for it was upon that ground that the learned Chief Justice declared himself to he of opinion that the judgment and decree in that case were 'absolute nullities,' which opinion constituted the reasons of trial de novo.
22. But the learned Chief Justice went further, and in delivering his judgment, gave expression to views as to sound policy in such matters, and indicated the distinction which he drew between the duties of the Court of First Instance and those of the Court of Appeal, as to evidence Dot taken before the Court which deals with such evidence. He observed: 'I am glad to have an opportunity of expressing my disapproval of any system which makes it possible for a, man to decide a case upon materials which are not before him. It may be said that these observations are applicable to the proceedings of an Appellate Court, which is obliged to decide questions of fact upon evidence which it has not itself heard. But it must be remembered that the Appellate' Court has the advantage of the judgment of the Judge of first instance who had the evidence before him. It is probable that the Subordinate Judges themselves will be glad to be told that they are not to decide questions upon which they have not themselves taken the evidence; and it is obvious that such a course is not in accordance with the interests of justice.'
23. Now because considerations of justice have been referred to in this passage, I feel it my duty, as the only native Judge presiding in this Court, to express, as respectfully as I can, a protest against any such assumption. The cases before the learned Chief Justice were more or less heavy first appeals, in which the parties had produced all the evidence that they had to produce, and neither party took the objection that because the Judge deciding it was not the Judge who took the evidence in the case, the trial was an absolute nullity. The contention was not urged in the grounds of appeal, and it could scarcely be either the interests of justice or of the parties that all the proceedings in the Court below should be declared an absolute nullity. The legal aspect of these observations I shall presently consider; but I think I may, with propriety, say here that the parties are not likely to gain but lose by the delay and expense of new trials ordered in the manner in which they were done in those cases, on grounds which neither party made the subject of objection in the Court below or took before this Court as a ground of appeal.
24. A few days before I had the honour of coming to this Court as an Officiating Puisne Judge, I held the substantive appointment of District Judge of Rae Bareli, in Oudh, which required me to act as the Judge of the Court of First Instance in all the important litigations of that division. Two cases were then, in the ordinary course, put up before me, in which my predecessor, who had been officiating for me, had recorded the evidence of a considerable number of witnesses, and I should have proceeded with the trial of those suits hut for the two rulings of Petheram, C.J., which have been reported. These rulings were cited to me as authorities for the proposition that I could not go on with the trial, but that I should--in the words of the learned Chief Justice--'fix a day and re-hear it from beginning to end because the learned Chief Justice, who presided over the administration of justice in these Provinces, had declared that any judgment or decree by roe would be a 'nullity,' unless I fixed another date for the trial, and gave the parties another opportunity of resummening their witnesses and having them re-examined before me. It was also urged before me that the depositions recorded by my predecessor could be made evidence only by being put in as documentary evidence containing the depositions of witnesses examined in a former trial which had proved abortive, and had become a nullity, and that if those depositions were not so put in, I could not refer to them, although they already existed upon the record which was then before me. Sitting there as the Judge of an inferior Court, I felt out of respect, bound to accept this enunciation of the law, coming as it did from the Chief Justice of this Court; but I felt then, as I respectfully do now, that for me to regard the proceedings of my predecessor as.' absolute nullities' would have been in those cases a pure waste of time, and cause unnecessary delay and expense to the parties. Yet, though not bound as a Judge in Oudh to accept the ruling of this Court upon all questions of this nature, I deferred to the eminent authority of Petheram, C.J., and resummoned the witnesses whose evidence had already been taken by the Court. I did so because of what the learned Chief Justice had said in the case of Afzal-un-nissa Begam: The Judge who had originally heard it had gone, and therefore the trial, so far as it had gone before him, was abortive, and, as a trial, became a nullity, because the person conducting it had ceased to be a Judge, and could not give judgment in a trial heard before him.' Then my attention was called to another passage in the same learned judgment, which contains the conceptions of the learned Chief Justice as to the requirements of our law of Civil Procedure. After stating that the appointment of anew Judge had rendered all the proceedings taken by his predecessor a ' nullity '--I suppose in the legal sense--the learned Chief Justice went on to indicate how 'that' nullity ' might be cured, for the nullity having already occurred according to the former part of the judgment, it could, of course, not be avoided. I will quote the whole passage because it contains the latest enunciation of the law by so eminent a legal authority. The learned Chief Justice said:
The question then arises---What was the duty of Maulvi Zain-ulabdin? I think that when the case was called on before him on the 9th December, he ought to have fixed a data for the hearing; that is to say, for the entire hearing and trial of the case before him. He might, at the request of the pleaders, have fixed the same day, the 9th December, and proceeded to try the case at once. But by the act of fixing a date he would have avoided the danger of making it appear possible that he was deciding a case which he himself had not heard. Then when the time fixed--either the same day, by such an arrangement as I have suggested, or a future date-arrived, the trial would proceed in the ordinary way as if the day were the first on which the case had ever come on for hearing, except that the parties would be allowed, by Section 191 of the Civil Procedure Code, to prove their allegations in a different manner. The Code has provided a mode of avoiding the inconvenience which might arise if the witnesses had to be called twice over, if neither the parties nor the Judge consider such a course to be necessary. But no Court can, in my opinion, extend the operation of the statute so as to enable a new Judge to take up a trial which has been partly heard by his predecessor, and to proceed with it as if it had been commenced before himself.
25. With reference to this learned passage and the earlier portions of the judgment, it was suggested tome by one side of the Bar, in the cases which I had before me, that 1 should record an order, saying, in the words of the learned Chief Justice, that as' the Judge who had originally heard it had gone, and therefore the trial, so far as it had gone before him, was abortive, and, as a trial, 'became a nullity,' it was my duty to 'fix a day and re-hear it from beginning to end;' that in order to achieve this result I might' try the case at once on the same day by fixing that very day, because, as the learned Chief Justice had said in the case before him, the new Judge, by 'the act of fixing a date, would have avoided the danger of making it appear possible that he was deciding a case which he himself had not heard.' And it was argued that these enunciations of the requirements of the law would be fully satisfied if, taking up the case at 11 A.M., I fixed the same day for the new trial to take place at five minutes after 11, and it was said that by this interpretation of the two learned rulings with which I had to deal, I might utilize all the proceedings which my predecessor had taken in the case, and proceed with the trial as I should otherwise have done. This is the manner in which these two learned rulings have been understood in the Mufassal, and so far as I am concerned, as I have respectfully said before, they leave but a vague and uncertain impression upon my mind as to the principles on which they exactly proceed. It would be almost a want of due respect to point out what constitutes a nullity in law, and that to spenk of a trial which, 'HO far as it had gone, was abortive, and, as a trial, became a nullity,' as capable of becoming anything other than a nullity, would be to violate the elementary principles of general jurisprudence and of English law itself, A 'nvllity' is a ' nullity,'' and cannot become anything else either by the consent of the parties or by the desire of the Judge. The proposition is too' clear to require any authorities, and out of respect for the learned Chief Justice, I cannot but hold that, in using the expression that the trial, so far as it had proceeded, had become a 'nullity,' he was not using the expression in the strictly legal sense in which it is understood in the English law itself.
26. Our Civil Procedure Code repudiates all technicalities of special pleading at one time so favoured by the English Common Law. And what is the method of trial which the principal sections of that Code indicate? I must answer these questions with special reference to such phrases as were used by Petheram, C.J., in the two reported rulings, to the effect that the new Judge had 'fixed no date for the hearing of the case as for a new trial;' that 'this was an absolutely illegal course and one which cannot be justified by any system of law, and certainly not by the Civil Procedure Code;' that the trial before the former Judge was an 'abortive' trial; that 'the law nowhere says that two hearings may be linked together and virtually made one;' and that the judgment and decrees passed on evidence recorded by his predecessor were therefore absolute nullities.' The last, of course, is an expression of strength and positive ness as to the exact rule of law laid down in those cases, and words to the same effect are repeated in the second reported case, which, it is contended, by lucidity of exposition, mitigates the rigour of the rule laid down in the first reported case.
27. Now, under the Civil Procedure Code (Section 48), a suit commences with a plaint, and thereupon follow certain processes for the appearance of the parties and other subsidiary matters, such as the riling of written, statements, the examination of the parties by the Court. Section 138 imperatively directs the parties to keep their documentary evidence in readiness to the first hearing,' which clearly means, as Section 146 indicates, the day on which the issues are settled. Then follows Chapter XII of the Code, authorizing the Court; under certain conditions, to dispose of the suit at such first hearing. The next Chapter (XIII) relates to adjournments of the hearing of the suit, Chapter XIV lays down rules as to the summoning and attendance of witnesses, and then follows Chapter XV, to which Petheram, C.J., has attached so much importance, for, according to him, the trial begins at the stage when the examination of the witnesses is taken under that chapter. According to the learned Chief Justice, all proceedings taken by a Judge under that chapter are not available for his successor, because ' the Judge who bad originally heard it had gone, and therefore the trial, so far as it had gone before him, was abortive, and, as a trial, became a nullity, because the person conducting it had ceased to be n Judge, and could not give judgment in a trial held before him.' The duty of the succeeding Judge under these circumstances would, according to Petheram, C.J., be to fix 'a day for the entire hearing of the suit before himself,' though,' at the request of the pleaders, 'he might fix' the same day, 'and proceed' to try the case at once.' But if this technical formality is not gone through, the learned Chief Justice's reasoning is, that because by the removal of the preceding Judge, the trial, so far as it had gone before him, had become a 'nullity,' therefore the judgment and decrees passed by the succeeding Judge upon the result of such a nullity would themselves be 'absolute nullities;' for, as the learned Chief Justice argues, 'the law nowhere says that the two healings may be linked together and virtually made one, 'but regards every second or subsequent hearing to be' a proceeding held by adjournment in the trial heard on the original date.' These observations are in keeping with the observations made by the same learned Chief Justice in Queen-Empress v. Pershad I.L.R. 7 All. 414 and, though they related to criminal procedure, throw light upon his way of regarding such matters of procedure. The learned Chief Justice observed:
As I understand the law, a case is supposed to be tried on the day the trial commences, and after that day the case proceeds by adjournment. The only date to be looked at as the date of trial is the date of the first day of trial.
28. These observations may no doubt be sound English technical law, but no attempt, was made to show that those technicalities had been imported into our law of procedure, and the rest of the Full Bench which heard that case, including myself, were unable to accept the learned Chief Justice's conclusions to be such as were warranted by our Criminal Procedure Code. Here the case is very analogous, for the ratio decidendi adopted by the learned Chief Justice upon this point, ns to the trial dating from the original date, and as to what he calls the linking of hearings, is identical with the one to which the above quoted observations related.
29. The question then is, whether there is anything in the Civil Procedure Code to warrant the conclusion that the first, second or third hearing of a suit, held by a Judge having jurisdiction to hear it, ceases to be first, second or third hearing by the simple fact of another Judge having succeeded the one who had held those hearings. The learned Chief Justice has ruled that under such circumstances the trial, so far as it had gone, becomes a 'nullity;' but I think I may respectfully say that there is nothing in the whole Code to justify such a conclusion. For what does the argument amount to? It amounts to saying that many hearings may have taken place in the suit, and those hearings are perfectly valid up to the forenoon of a day when the Judge who held them may be still presiding in the Court; in the afternoon, when the succeeding Judge takes his seat, all those proceedings become ipso facto 'nullities.' Surely, express words in the Code itself are required to sustain this proposition; and upon general principles, which show that the identity of the Court does not change by the change of persons, I should say that very strong authority indeed is required to reduce that which is admittedly a valid proceeding, when taken, into a mere nullity by a circumstance which lies out of, and is foreign to, the proceeding itself. The learned Counsel who argued this case before the Full Bench in support of the appeal, confessed himself wholly unable to cite any authority, even of the English technical law, which would go to support this proposition, and I respectfully confess I am unable to accept it either as good law or sound jurisprudence. And I think this is the appropriate place for pointing out, as supporting my view, that our own Civil Procedure Code, wherever it attaches significance to the identity of individuals in the person of the Judge presiding in a Court, it expressly mentions it, obviously as an exception to the general principle of jurisprudence, that the identity of the Court is not altered by a new Judge being appointed. Of this a good illustration is afforded by Section 624 of the Code, which lays down that, except under certain conditions, no application for a review of judgment 'shall be made to any Judge other than the Judge who delivered it.' The Code says nowhere that a Judge shall not deliver a judgment upon evidence taken by his predecessor. On the contrary, the Code contains express provisions indicating that such a rule as to the identity of the Judge is not applicable to taking or recording of evidence in the course of civil trials.
30. This brings me to the most important point in the case, namely, the exact interpretation of Section 191 of the Civil Procedure Code.
31. It must, in the first place, be observed that the section occurs in Chapter XV of the Code, which lays down rules relating to the hearing of the suit and examination of witnesses. The first section of the Chapter is 179, which lays down that 'on the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state hi? case and produce his evidence in support of the issues -which he is bound to prove.' This section clearly shows that the ' hearing of the suit' may take place either on the original day fixed for such hearing, or on any subsequent adjourned date; and I suppose no one would maintain that if the Judge before whom the case came on for hearing on the original date dies or is transferred, and the case then comes on for hearing before his successor on the adjourned date, it would be necessary for the new Judge to fix another date for the first hearing on the hypothesis of Petheram, C.J., that the trial must be understood to have been 'heard on the original date.' Then comes Section 180, which relates to the statement of his case by the other party and the production by him of his evidence. Section 181 provides that witnesses should be examined in open Court, and the next Section (182) lays down that ' in cases in which an appeal is allowed, the evidence of each witness shall be taken down in writing, in the language of the Court, by or in the presence, and under the personal direction and superintendence, of the Judge, not ordinarily in the form of question and answer, but in that of a narrative, and when completed shall be read over in the presence of the Judge and of the witness, and also in the presence of the parties or their pleaders, and the Judge shall, if necessary, correct the same and shall sign it.' The next eight sections deal with minor details which need not be noticed, but they leave no doubt that the evidence of the witnesses so taken becomes part of the record. Then follows Section 191 itself, which lays down that ' where the Judge taking down any evidence, or causing any memorandum to be made under this chapter, dies or is removed from the Court before the conclusion of the suit, his successor may, if he thinks fit, deal with such evidence or memorandum as if he himself had taken it down or caused it to be made.'
32. Now, to use the language of Parke, B., in Beoke v. Smith 2 M. and W. 195 'it is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.' This, indeed, is one of the principles of what has been called the 'golden rule' for the construction of statutes. It is as old as the time of Lord Coke; and Mr. Wilberforce in his useful work on Statute Law (pp. 112-115) has cited numerous cases to support the rule laid down by Parke, B. And applying that rule to the interpretation of Section 191 of the Civil Procedure Code, it may well be asked why the words which I have emphasized in quoting the section are not to be understood in the sense which they naturally convey. That those words clearly mean that the Judge pronouncing the Judgment need not be the same as the Judge recording or taking the evidence, seems to me, so far as I can understand the English language, wholly beyond doubt. For if, in the two above-mentioned cases which I had before me at Rae Bareli, I could deal with the evidence taken and recorded by my predecessor, as if I myself had taken down or recorded such evidence, I fail to see why the trial, so far as it had gone before my predecessor, should have been treated by me as a nullity.'
33. It must be remembered that to put any interpretation other than the natural one upon Section 191 of the Code, it must be shown that such interpretation leads to a 'manifest absurdity or repugnance to be collected from the statute itself.' Parke, B., has said so in the case to which I have just referred, and his ruling being supported by numerous other authorities, I have looked in vain for any provision in the Civil Procedure Code which would show that the natural meaning of Section 191 is not to be adopted. Indeed, the 'manifest absurdity or repugnance' seems to me to lie in interpreting that section in any sense other than that conveyed by the simple English words which I have emphasized in quoting that section. Nor do the judgments of Petheram, C.J., satisfy me that he discovered anything in the Code, which would justify the view that the evidence of witnesses taken down by a Judge cannot be dealt with by his successor as part of the record, and as if such successor himself had recorded such evidence. And I cannot help feeling with due respect that the learned Chief Justice, in delivering those judgments which have been reported as to the interpretation of Section 191 of the Code, was all along thinking of trials by jury in the English Courts of Common Law; and starting with the hypothesis that no rule of jurisprudence justified a Judge to pass judgment upon evidence not taken by himself, held that such judgment or decree must, ipso facto, he null and void, because 'this was an absolutely illegal course, and one which cannot be justified by any system of law, and certainly not by the Civil Procedure Code.'
34. That this view cannot be accepted, but is rather contradicted by the general principles of jurisprudence, appears from what I have already said with reference to Jeremy Bentham and the dictum of Couch, C.J., which I have already quoted. And it will now be useful to examine whether our own Civil Procedure Code does not in itself contain many provisions which proceed upon the principle that the Judge taking the evidence need not, in all cases, be the same as the one who has to pronounce the judgment upon such evidence.
34. Now, in the first place, it appears to me clear that the whole system of first appeals provided by Chapter XLI proceeds upon the principle just enunciated; for it is obvious that the Judge presiding in the Appellate Court has to decide questions of fact, both as to admissibility and weight of the evidence taken by the Judge of the Court below. Petheram, C.J., in the case of Jagram Das, I.L.R. 7 All. 857, in drawing a distinction of principle, went on to say: 'it must be remembered that the Appellate Court has the advantage of the judgment of the Judge of First Instance, who had the evidence before him.' But I respectively think that these observations seem to ignore some of the most important provisions of the Code relating to appeals, because the express words of Section 565 make it imperative upon the Appellate Court to decide the case itself upon the evidence on the record, even though the judgment of the Court below may have proceeded solely upon a preliminary point (such as limitation, &c;), and have been wholly silent as to the weight of evidence. The section no doubt operates as throwing labour upon the Appellate Court, but it has always been so understood as to prevent unnecessary remands of cases by the Appellate Court. The case of Bandi Subbayya v. Madalapalli Subanna I.L.R. 3 Mad. 96 is only one of many other reported cases which go to support what I have said; and the practice of this Court in first appeals has not been different in this respect, unless it has, been altered during the last year. There is thus a clear instance of the Code requiring the appellate Judge to decide questions of fact upon evidence not taken by himself, and in regard to which evidence the Judge who took it has never expressed any opinion. Then again, apart from the provisions of Section 566, which content plates a finding upon the remanded issue by the Judge taking the evidence, there are Sections 568 and 569, which lay down rules for the taking of additional evidence and the latter section provides that: Whenever additional evidence is allowed to he received, the Appellate Court may either take such evidence, or direct the Court against whose decree the appeal is made, or any other subordinate Court, to take such evidence, and to send it, when taken, to the Appellate Court.' The section does not contemplate any expression of opinion upon the evidence taken by such subordinate Court, and yet the Appellate Court has to decide the case upon such evidence. Section 390, relating to the examination of witnesses by commission, is another illustration of the principle that the Judge deciding the case may found his judgment upon evidence not taken by himself and I have failed to find any provision in the Civil Procedure Code which would justify the view that in all cases where a Judge passes a judgment and decree upon evidence taken by his predecessor, such judgment and decree are 'absolutely nullities.'
35. This brings me back to Section 191 of the Code which I have already quoted. I have before now said, sitting as a Judge of this Court, that the general principles of Lord COKE'S celebrated dictum in Heydon's Case are applicable to the interpretation of our own Indian enactments, and that in construing the rules of such departments of law as Civil Procedure, which has repeatedly been the subject of repealing, amending, and consolidating legislation, it is important to consider the previous state of the law, the mischief and defect which that law did not provide for, the remedy which the Legislature adopted to remove the mischief, the true reason of the remedy, and (to use Lord Coke's own words) then the office of all the Judges is always to make such construction as will suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief and pro privato commmodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act pro bono public.'
36. I respectfully think that these principles of construction, which have never been doubted in England, but have passed almost into maxims of law, were not kept in view in the rulings which have necessitated this reference to the Pull Bench. For whilst those cases afford no indication of any attempt being made to consider the previous state of the law, either as represented by the old Civil Procedure Code of 1859, or by the case-law upon the subject, the conclusions at which those rulings have arrived are, in my opinion, such as continue the mischief which Section 191 was clearly intended to remove, and that their practical effect is to encourage in the Mufassal what Lord Coke has called ' subtle inventions and evasions for continuance of the mischief.'
37. Now, the rule contained in Section 191 of the present Code was totally absent from the old Civil Procedure Code of 1859, and whilst that Code was in force considerable difficulty and doubt arose as to whether, in cases where a Judge had partly taken the evidence in a case, his successor was bound to recall and examine the witnesses de novo, as if the trial commenced anew. This is indicated by many cases to be found in the Reports, and the general effect of them maybe stated to be that, under circumstances such as those contemplated by Section 191, the new Judge was bound by law to take the evidence de novo, unless the parties waived such right and assented to the evidence taken by the former Judge being dealt with as evidence taken by the new Judge. The same is the effect of two unreported rulings of this Court in Shaikh Jalal-ud-din v. Damodar Das S.A. No. 972 of 1869 decided on 1st December 1869, and Nasir-ud-din v. Thakori S.A. No. 315 of 1869 decided on 31st May 1869, to which Mr. Colvin has called our attention. So stood the law when the Code of 1877 was passed, and it was in Section 191 of that Code that the Legislature for the first time gave expression in explicit words to the rule which has been enunciated in Section 191 of the present Code, which I am now discussing. To say that the new section did not alter the law is to say that the new section was wholly a superfluous action on the part of the Legislature. But it seems to me impossible, upon a comparison of the state of the law antecedent to the Code of 1877, to hold any such view. There was clearly a mischief created by the difficulty and uncertainty which the words of the old Code did not remove, and it seems obvious that the new section aimed at suppressing the evil. Yet the effect of the two rulings of this Court, which I am now considering, is to interpret the law as if Section 191 of the Code had never been passed.
38. Indeed, the effect of those rulings is almost retrogressive, for whilst under the old law the action of a Judge, in pronouncing a judgment upon evidence taken by his predecessor, was regarded as an irregularity, capable of being cured by the assent of the parties, in the rulings which have given rise to this reference such action has been denominated as a 'nullity' which of course neither the consent of the patties nor the desire of the Judge can cure. Indeed, in the case of Malik Fakir Bakhsh and Afzal-un-nisna Begum, such consent was actually given in the Court below, and yet the trials were set aside as absolute nullities. I have already said with due respect that there is absolutely no warrant in the Civil Procedure Code to justify the view, and the learned Counsel who appeared in support of that view confessed himself unable to cite any principle of jurisprudence or any rulings of the English or the Indian Courts which would even approximately support the rule which Petheram, C.J., laid down in those cases.
39. On the contrary, even under the law as it stood under the Code of 1859, which, as I said before, contained no rule such as Section 191 of the present Code, we have the authority of a Full Bench ruling of the Bombay Court in Naranbhai Vrijbhukandas v. Naroshankar Chandroshankar 5 Bom. H.C. Rep. A.C.J. 98 where four learned Judges concurred in the judgment of Couch, C.J., from which I have already quoted a passage to show that there is no rule of jurisprudence which requires that the evidence of the suit shall be taken by the Judge who pronounces the judgment, and the practice in many Courts is, as is well known, to the contrary. I will, however, at the risk of prolixity, quote further from that judgment, in order to make clear the distinction between a nullity and an irregularity, and to show that what Petheram, C.J., denominated as ' absolute nullities' were regarded by Couch, C.J., and the four learned Judges who concurred with him, as mere irregularity, even when Section 191 did not exist as a rule of our law of procedure. Couch, C.J., observed:
The plaintiff has appealed to this Court, stating, as one of the grounds, that the suit has been illegally decided by a different Judge upon evidence recorded by the Principal Sadr Amin. Now, the evidence taken by the Principal Sadr Amin, even if taken in a former suit between the same parties, and not, as this was, in the same suit, would have been admissible as secondary evidence, if the witnesses had been incapable of being called; and the use of it by the Munsif was, in my opinion, only an irregularity, which was waived by the plaintiff's not requiring the witnesses to be again examined, and proceeding with the suit, and producing other witnesses to be examined in support of his claim. The plaintiff now asks this Court to reverse not only the decree of the District Court, which is against him, but also the decree of the Munsif, which was in his favour, and was founded on the-evidence which he now contends was inadmissible. I think he is not entitled to this.' The judgment then went onto consider the effect of Section 350 of the Code of 1859 (which corresponds to Section 578 of the present Code), and held that that section covered the irregularity, disentitling the appellant to obtain reversal of the decree of the Court below. And then the judgment went on to say as indicating the proper and sensible course to be adopted in such cases: 'Whenever it is practicable, the witnesses should be examined before the Judge who is to pronounce the judgment; and care should be taken, in the transfer of suits, and in the disposal generally of the business of the lower Courts to prevent the necessity of re-summoning witnesses; but where a deposition taken by another Judge is read, instead of the witness being examined, I think it is only an irregularity, which may be waived by the parties, and which would not be a ground for reversing the decree on special appeal, unless it appeared that the appellant had been prejudiced by it.
40. These observations, as well as those which precede them, command the highest respect from the Indian tribunals, because they proceed from an eminent Judge, who, after having acted as a Puisne Judge of the Bombay Court, was made Chief Justice of that same Court, and afterwards became Chief Justice of the High Court of Bengal, and is now one of the Lords of the Privy Council. And I am bound to say that I accept the authority of such an eminent Judge, though it is wholly inconsistent with the rulings which have regulated the practice of this Court during the last year in connection with such cases. For I find that in every one of those cases the parties had never objected to the action of the Judge in the Court below as to his reading the evidence recorded by his predecessor, nor was the question urged in the grounds of appeal. So that it could only have been by the exceptional exercise of power granted by Section 542 of the Code that Petheram, C.J., decided those cases upon grounds which were never taken in the memorandum of appeal before him, and which never formed the subject of objection in the Court below.
41. Now, there is another aspect of the matter, namely, the one to which Couch, C.J., referred, and which is now regulated by Section 33 of the Evidence Act. That section lays down that evidence taken in a former judicial proceeding or 'in a later stage of the same judicial proceeding' may, under certain conditions, be admitted in evidence. And Couch, C.J., has pointed out that where such conditions are not fully satisfied, the admission of such evidence does not amount to a nullity,' but only to an 'irregularity.' He further points out, relying upon the practice of the English Courts as indicated in Section 1681 of Taylor's celebrated work on Evidence, that where evidence is allowed by a party without objection to be used in a trial, such party 'would not be at liberty afterwards to object to its being used, or obtain a new trial on that ground, even if the original decree had been against him.' In the cases before Petheram, C.J., the parties evidently raised no such objection in the Court below, and indeed they did not raise it here in their grounds of appeal.
42. Again, even if it be granted for a moment that, notwithstanding Section 191 of the present Code, the manner in which the succeeding Judge dealt with the evidence taken by his predecessor amounted to an irregularity, there was surely no authority to declare the whole trial as a nullity, and to remand those cases for trials de, novo. No attempt appears to have been made to consider whether Section 578 of the Civil Procedure Code affected the question. The terms of that section are imperative, and it lays down 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, whether in the decision or in any order passed in the suit, or otherwise, not affecting the merits of the case or the jurisdiction of the Court.' To a similar effect are the terms of Section 167 of the Evidence Act, which prohibits, in express language, new trials being ordered for rejection or improper reception of evidence.
43. But if I am right, following the view of Couch, G.J., in thinking that the action of the Court below in the case before Petheram, C.J., could at its best be Regarded as an irregularity, it may well be asked where the authority was for setting aside the decrees in those cases and remanding them for trial de novo, Section 562 of the Civil Procedure Code is the only authority available to the first appellate Court for such an action, and that section was clearly inapplicable to all those cases. Then there were also the provisions of Sections 564 and 665, giving clear indications of the policy of the law that the delay and expense of new trials mist, as far as possible, be avoided; but those sections do not seem to have been either cited or considered in the rulings which have given rise to this reference. And I think I may here say, with profound respect, that those rulings can be understood only as proceeding upon technicalities foreign to our Civil Procedure Code, and which, so far as I can understand the exigencies of the administration of justice in India, are not calculated to promote either the interests of the parties or the interests of justice. 'For, to use the words of Lord Penzance in Combe v. Edwards L.R. 3 P.D. 103 'the spirit of justice does not reside in formalities or words, nor is the triumph of its administration to be found in successfully picking a way between the pitfalls of technicality. After all, the law is, or ought to be, but the hand-maid of justice; and inexibility, which is the most becoming robe of the latter, often serves to render the former grotesque.'
44. I now proceed to consider whether the present case is in any manner distinguishable from the rulings to which I have referred at such length, and in order to answer this question, I have examined the records of those cases. In the unreported case of Malik Fakir Bakhsh v. Chauharja Bakhsh Singh F.A. No. 88 of 1884 decided on 7th July 1885, I find that the parties had--to use the words of Petheram, C.J.,--'given a sort of consent to the adoption of this course; 'that is, the course which induced the learned Chief Justice to hold' that this trial must be treated as a nullity, that therefore all proceedings subsequent to fixing the issues must be set aside, and that the Subordinate Judge must reinstate the case upon his file and try it according to law.' Again, in the case of Afzul-un-nissa Begam v. Al Ali ante p. 35 which is supposed to have mitigated the rigour of the rule laid down in the earlier case of. Jagram Das v. Narain Lal I.L.R. 7 All. 857 I find that the Subordinate Judge, whose judgment was treated as a nullity, necessitating a trial de novo, had, before recording his judgment, expressly put down upon the record the following observations:
I found this case complete in every way; the evidence on both sides has already been filed. I therefore proceed to try the case, as requested by the pleaders for the parties, on the existing evidence, after hearing the arguments on both sides, and perusing all the papers on the record and the evidence produced by both parties.
45. These observations appear at page 11 of the printed English record which was before Petheram, C.J., and they are important as furnishing reasons for realizing the length to which the ruling in that case has gone. In the present case the facts are exactly similar, and indeed not so strong as they were in the case just referred to. What happened here was that the suit was filed on the list March 1883, written statement in defence was, filed and issues were framed on the 15th January 1884, one witness was examined on the 18th and 19th of the same month, and the case was postponed to the 22nd of the same month. On that day another witness was examined, and the examination of other witnesses continued up to the 29th of that month, when the defendants applied for proceedings being taken, under Section 170 of the Civil Procedure Code, against a witness, and the 12th February 1884, was fixed for further hearing of the case. Upon that day the witness in question did not appear, and the 3rd March 1884, was fixed, and the case coming on for hearing on that day, some more witnesses were examined, and the Subordinate Judge then recorded an order saying--'As this case is complete, it is ordered that the 14th March 1884, be fixed for hearing arguments. Pleaders to be informed.' The Subordinate Judge who made this order (Babu Ram Kali Chaudhri) then ceased to be the Judge of the Court, and was succeeded by another Judge (Babu Abinash Chandar Banarji), who on the 10th May 1884, recorded the following proceeding:
In this case Munshi Ram Prasad stated to-day that Lala Raj Bahadur, plaintiff's pleader, was not present, and as he was fully acquainted with the facts of the case, it could not be argued in his absence. Ordered that the case be adjourned to-day, and 13th May 1884, be fixed for decision.
46. Upon the day so fixed another proceeding was recorded, referring to the witness who had not appeared in Court, and the case came on for hearing on two more occasions; and on the 24th June 1884, the judgment was delivered by the Judge after the final hearing of the case, which, according to the Mufassal practice, of course, includes the hearing of the arguments of the parties or their pleaders.
47. No objection of any sort appears to have been raised in the Court of First Instance to the course which the Judge of that Court adopted, nor was the question urged as a ground of appeal before the Lower Appellate Court. Indeed, for the first time in this Court it is argued, upon the authority of the two reported cases to which I have already referred, that the judgment in this case must be treated as a nullity.
48. I cannot help holding that the circumstances of this case are not distinguishable in principle either from the unreported case of Malik Fakir Bakhsh or from the reported case of Afzal-un-nissy Begam ante, p. 35, in which the previous ruling in the case of Jagram Das I.L.R. 7 All. 857, was followed. And further, I hold that if in those cases the judgments and decrees of the Courts below were nullities, as was there held, the judgments and decrees in this case are also nullities a fortiori. But I have already stated the reasons why I am unable to accept the rule of law laid down in those cases, and I must, with reference to the various points already enumerated by me as the effect of the rulings which have given rise to this reference, now summarize the view which I take of the law under the present Civil Procedure Code. As I understand that Coda, I hold-
(i)--that although it is true that 'a trial must be one and must be held before one Court only,' the identity of the Court is not altered by a new Judge being appointed to preside in such Court;
(ii)--that when a trial goes on for more than one day, each day constitutes a separate hearing, and that such hearings cannot be treated as a 'trial heard on the original date;'
(iii)--that the Civil Procedure Code does authorize a Judge to take up a case which has been partly heard before his predecessor, and to continue it from the point at which his predecessor left off;
(iv)--that where the Judge who has partly heard a case dies or is removed, the trial, so far as it has gone before him, is neither abortive nor becomes a nullity;
(v)--that the new Judge is not required to fix a day for the entire hearing of the suit before himself, nor is there anything to prevent him from taking up a trial which has been partly heard by his predecessor, and to proceed with it as if it had been commenced before himself;
(vi)--that the Code does not recognise such procedure as amounting to separate trials;
(vii)--that the Judge who succeeds another after a trial which has partly proceeded before his predecessor is not bound to fix a new day for commencing the trial de novo, nor should the trial proceed before the new Judge as if the day were the first on which the case had ever come on for hearing;
(viii)--that the evidence recorded by the preceding Judge, by the mere fact of being upon the record, is, ipso facto, evidence in the cause, and could, under Section 191 of the Code, be treated by the succeeding Judge 'as if he himself had taken it down or caused it to be made;'
(ix)--that when the case comes on for hearing before the new Judge, there is no necessity for putting in the depositions of witnesses which, though taken by his predecessor, are already upon the record;
(x)--that such depositions must be dealt with as materials of evidence before the new Judge;
(xi)--that a judgment and decree upon such evidence are neither illegal nor absolute nullities, there being no want of jurisdiction;
(xii)--that when such judgment and decree are passed, the Court of First Appeal is prohibited, by Section 564 of the Code, to order a trial de novo, but is bound by Section 565 of the Code to decide the appeal upon the evidence in the record;
(xiii)--that where further issues are required to be tried, or additional evidence is to be taken, the Court of appeal is bound to act according to the provisions of Sections 566, 568, and 569 of the Code, but cannot order a new trial;
(xiv)--that even when there has been an irregularity on the part of the first Court in receiving or rejecting evidence, the provisions of Section 578 of the Civil Procedure Code and Section 167 of the Evidence Act prohibit the reversal of a decree and the remand of a case for new trial, unless the irregularity affects the merits of the case or the jurisdiction of the Court.
49. Such being my view of the law as it now stands, I hold, with due respect for the rulings which have given rise to this reference, that in none of those cases could a new trial be ordered. And I think I must say that I have regarded it my duty to deal with this matter at such elaborate length, partly because I understand that the Legislature is contemplating the amendment of the Civil Procedure Code, but mainly because I have very little doubt that the two reported rulings of Petheram, C.J., which I have had to consider at such length, have practically resulted in retarding the administration of justice in all parts of India where those rulings are respected, as they were by me at Rae Bareli in Oudh. Indeed, the very cases in which those judgments were passed afford good illustrations of what I have just said. For example, in the case of Malik Fakir Bakhsh, the litigation began on the 18th March 1882, in the Court of the Subordinate Judge of Allahabhad; proceedings in the case-were taken by two or three Subordinate Judges in the Court of First Instance; the litigation did not come to an end in that Court till the 24th December 1883, and the order of Petheram, C.J., in this Court, on the 7th of July 1885 declared that all that had taken place in the Court of First Instance 'must be treated as a nullity.' Similar were the facts in the case of Afza-un-nissa.
50. Begam and the other cases, and I cannot help feeling hat such a view of the law, though it may tend to reduce the labour of the Appellate Court in dealing with cases which have been pending in the Court of First Instance for a lengthened period and in which more than one Judge has taken the evidence, is not calculated to reduce either the expense or the dilatoriness of litigation. And I think I may add that if my view of the law, as it now stands, is inaccurate, the Legislature, in considering the amendment of the Civil Procedure Code, might consider the principal results of the rulings from which I have ventured to differ, and which have tended to throw back the administration of justice in this part of the country, wherever, by death or transfer, new judicial officers have been appointed.
51. I have no hesitation in answering the question referred to the Full Bench in the affirmative.
52. The order of reference is as follows:
In this case, which has been taken up as bringing forward in a more cogent form the question referred in F.A. No. 52 of 1885, we refer the following question to the Full Bench: Whether, with reference to the first and second grounds of appeal, and having regard to the circumstances disclosed in the proceedings of the Court of First Instance, that Court or the officer presiding therein who passed the decree had jurisdiction to deal with and determine the suit in the mode in which he did. This reference has been made for the special purpose of considering the effect of two judgments of this Court, reported in I.L.R. 7 All. 857 and I.L.R. 8 All. 35.
53. My learned brother Oldfield, in his answer to the former portion of the reference, has given a precise and succinct exposition of the law laid down by Sir Comer Petheram on the procedure to be followed in the trial of a suit or appeal, when the Judge who began the hearing is removed from the Court before the conclusion of the suit or appeal. I fully concur in that exposition and in its application to the second appeal referred to us. And I am of opinion that the question relating to this second appeal, which is a pending case in our Court, is the only matter we can legally attend to in this reference. We are not competent, I think, to review or pronounce judicial opinions on our judgments in cases finally decided by us, unless they are brought before us by or on behalf of the parties in any of the modes provided by the law, It would be certainly unprecedented on our part to review or consider our judgments behind the backs of the parties at the invitation only of some of ourselves.
54. It was for this reason that at our sitting in Full Bench in regard to the Second Appeal No. 1155 of 1885 we abstained from going into the latter or subsidiary part of the order of reference. I am unable therefore to follow my learned brother Mahmood into his discussion of this Court's judgments given in cases not the subject of this reference. But perhaps it may not be irregular to remark, with reference only to the literary aspect of his criticisms on the phraseology used by Sir Comeb Petheram and me in those judgments, that when we said that the Court in question 'had not jurisdiction' to follow the procedure we disapproved, and therefore its proceedings were 'null,' we meant and said the same as my learned brother Mahmood recently did when he annulled the trial of a first appeal, and remanded the case for new trial, because the Judge, having unquestionable jurisdiction in the case, bad omitted to formulate his judgment in the mode required by Section 574 of the Civil Procedure, Code Mahadeo Prasad Sarju Prasad Weekly Notes, 18BB, p. 171. The proceedings were treated as null and void, the judgment and decree were pronounced 'illegal,' and a new trial in first appeal was ordered. We did the same in our cases and in similar language, but for different irregularities. In all the cases alike--in those remanded by us and in that remanded by my I learned brother Mahmood--the Courts had unquestionable jurisdiction, but; they bad not jurisdiction, that is to say power, in the popular use of the phrase, to try them and decide them as they did.