1. This is an application purporting to be under Section 151, Civil P.C. in First Appeal No. 358 of 1925. The prayer in this application is to be found in para. 8 which runs as follows:
That considering that the judgment was not delivered for a considerably long time after the hearing of the argument and that it was possible to miss important points advanced in argument and considering the technical defect in delivery of judgment which makes it a nullity, it is prayed that the case may be treated as undecided and may be re-heard or in the alternative if the judgment may be considered to be a legal judgment it may be revised.
2. This application is signed by a counsel who did not appear in the case, and Mr. K.D. Malaviya on behalf of Mr. Muhammad Husain asked us to postpone the hearing as Mr. Muhammad Husain was not in Court. We did not consider that a sufficient reason for postponing the hearing when the counsel must have known that this Bench was constituted specially to hear the application today.
3. The points urged by Mr. Malaviya are that the judgment of this Court was not properly signed and delivered, because according to him on 8th August 1928, the complete judgment was not read out in Court and was not signed by either of us on that date, that under Order 41, Rule 31, Civil P.C., every judgment of this Court in appeal had to be in writing and had to be signed when it was pronounced and the Judges had to date it. He further submits that under Ch. 7, Rule 3 of the Rules of the High Court when a written judgment is delivered in an appeal it had first to be signed by the Judges who heard the case and only then could be pronounced by one of such Judges. It is urged by Mr. Malaviya that the non-compliance of the rules in view of the affidavit filed by his client makes the judgment a nullity, and therefore the case must be treated as not disposed of and an undecided case, and therefore he prays that his client should be given an opportunity of re-arguing the case before this Bench.
4. An application was presented to Dalal, J., who was the vacation Judge on 14th August 1928 supported by an affidavit that the judgment had not been signed by us and that there was no judgment in the office of the High Court. Dalal, J., directed this application to be land before one of us with an office report on the points raised in the application. The office has submitted a report which is dated 14th December 1928.
5. Sir Tej Bahadur Sapru who appears on behalf of the opposite party, viz. the appellant in the case, submits that Order 41, Rule 31 and Order 20 and the rules thereunder do not apply to the Chartered High Courts when the rules relating to judgments were in force when the Civil Procedure Code was enacted. He has referred to Order 49, Rule 2, and we accept his contention that in view of the fact that before the present Code was enacted the rules were in force, viz., the rules of Court of 18th January 1898, the provisions of Order 20 and that of Order 41, Rule 31 do not apply to the High Court. He has further submitted that if the Judges had agreed to a judgment under the rules of the Court it was not necessary that the judgment should be signed by both the Judges before pronouncing the judgment. It is necessary to state exactly what happened in the case. The appeal was argued by Sir Tej Bahadur Sapru on behalf of the appellant and by Mr. O'Conor and Dr. Katju on behalf of the respondent. The hearing lasted several days and at the conclusion of the hearing we reserved our judgment. Thereafter we met in chambers several times, discussed the points that had to be decided, discussed the value to be attached to the evidence called, both oral and documentary, and we agreed to what the decision on such point raised in the case was to be. There were really three points in the case. The first question was as to whether the plaintiff had proved the pedigree he had set forward, the second was whether the defendant had proved his adoption, and the third point was whether Bhagwan Das and Hira Lal were members of a joint Hindu family. As one of us proceeded on casual leave there was delay in writing out the judgment and on the 8th August the Court sat for the last time before the long vacation. By a mistake of the office the case was listed in Court No. 5 and was by an order transferred to Court No. 1. The judgment on the first question had been typed out and contained the result of the joint consultation between us. On the 8th August, the note made by the officer of the Court whose duty is to record proceedings was as follows:
Judgment delivered today: parties present: appeal allowed: judgment with Hon'ble Banerji,
6. Orally it was stated in open Court, what was our finding on the two other points that we had to decide, but the reasons for the decision of the second and third point had not been recorded. The complete judgment was signed by one of us and then sent to the other for signature, but on account of his absence from the station on duty the judgment was not sent into the office until 22nd August 1928 duly signed by both of us.
7. It thus appears that although one of us had pronounced in open Court the joint findings arrived at by us, the record of our reasons was not in Court on 8th August 1928, and the judgment had not been duly signed by both of us on that date.
8. Rule 3, Ch. 7, of rules of the Court, in our opinion, requires that when a written judgment is pronounced by one of the Judges it has to be signed by both the Judges but this, in our opinion, is a mere irregularity and does not in any way affect the merits and in our opinion Section 151, Civil P.C., cannot be invoked to ask us to re-hear the case merely on account of a technical irregularity.
9. The 8th August 1928, being the last date of sittings the office could not arrange that both of us should be sitting together to deliver the judgment orally. It was for the convenience of counsel that in case the parties wanted to appeal to His Majesty in Council that we pronounced our judgment on the 8th to enable counsel to prepare the application for leave to appeal at leisure. Although Mr. Malaviya suggests that the judgment would not be illegal if we had the last page copied out and we signed the last page and then pronounced the judgment, it appears to us that no useful purpose would be served by adopting that course. There is no force in this application, and we dismiss it with costs. We assess counsel's fees for today's hearing at Rs. 200.