1. The respondents Nos. 1 and 2 contested the last General Election held on 15-2-67 for the Daserei Legislative Assembly Constituency No. 68 of the Gujarat State wherein the respondent No. 1 was declared duly elected on 22nd February 1967 by the Returning Officer. The respondent No. 3 had filed the nomination form but had withdrawn from the contest. The petitioner was a voter at serial No. 68 in the Election Roll of the Daserei Assembly Constituency and he has filed a petition under Section 100 of the Representation of the People Act, hereinafter referred to as 'the Act,' for setting aside the election of respondent No. 1. The respondent resisted the petition as per the contentions raised in his written statement. The respondent No. 2 Dr. Chhota Bhai Jivabhai Patel has also filled his written statement and by that the supports the petitioner's claim in the petition, inter alia saying that respondent No. 1's election be declared void for the grounds mentioned in the petition. He has appeared through an advocate Mr. J. N. Nanavati as per the Vakalatnama duly signed by him and accepted by Mr. Nanavaty. From that Vakalatnama it appears that Mr. Nanavaty is authorised to act, appear and plead for and on his behalf in the above petition. This election petition was set down before this Court for settlement of issues of Monday, the 24th July 1967.
2. On 21st July 1967, Election Application No. 52 of 1967 in the main Election Petition No. 18 of 1967 was presented by the petitioner's Advocates M/s. S. N. Zaveri and S. B. Majumdar in the office of this Court. Since the main Election Petition was set down for settlement of issues on 24-7-1967, this application was circulated and consequently it came up for hearing before this Court. This application had to be taken up first before settlement of issues as it involved the amendment of pleadings in the original petition. The prayer made in para 3(A) of the application runs thus:--
'This application be granted and the petitioner be allowed to amend the petition and to amend and amplify the particulars as set out in the Schedule annexed to this application, and be pleased to treat amendments as per the contents of the Schedule as part of the main election petition.'
This application was considered para-wise and after hearing the learned advocate appearing for opponent No. 1, an oral order was dictated by me to the Stenographer whereby except in respect of para 7(i) of the application wherein certain words were directed to be deleted, the rest of the amendments sought for in the application were allowed, and the respondent was directed to file his written statement within ten days in respect of the amended petition. From the order it appears that the appearance of the learned advocates appearing for respondents Nos. 2 and 3 have been noted. Before this order could be initialled as is usually done in this High Court, on the same day before the Court rose, a note was filed by the learned advocates appearing for the petitioner. That note runs thus:--
'The above-mentioned amendment application was fixed for hearing to-day before Your Lordships and in the said matter oral dictation has been given, but so far, the order has not been signed by Your Lordship. After the hearing, we have come to know that there is some formal defect in the proposed amendment sought in the above-mentioned application. It is, therefore, requested that the above-mentioned application for amendment be allowed to be withdrawn.'
Simultaneously, on the same day the respondent No. 1 has filed the written statement to the amended petition and has also applied for reasons for direction stating inter alia that since the amended petition contains allegations of corrupt practice against one Shri Chhotabhai Karanbhai Patel who was the candidate within the definition of section 79(b) of the Act at the election and since he has not been joined as a party-respondent as required under section 22(b) of the Act, the petition is liable to be dismissed under section 86(1) of the said Act. All those matters were placed before me before I rose for the day, and they were set down for hearing on the next morning.
3. On 28-7-67 when the matters were called out, the respondent No. 2 Dr. Chhotabhai Jivabhai Patel has appeared in reply to the summons for direction inter alia contending that he was not served with a copy of the application for amendment of the petition made by the petitioner and that he did not know that the same was fixed for hearing on 24th July 1967. Then he has stated that the election petition was fixed for settlement of issues only and that he had instructed his advocate Mr. Nanavaty only to watch the proceedings at the time of settlement of issues if he was available and not busy in any other Court. Then he has stated that the opponent's advocate when came to the Court found that the order was being dictated and the believed that the order regarding settlement of issues was being passed in the matter and he did not care to know as to what matter was being really disposed of by the Court. He has, therefore, stated that the order was passed without hearing him and was, therefore, null and void. The contents of his statement were affirmed to be true to his information and belief. Before the summons for directions could be heard, the note placed before the Court by the learned advocates for the petitioners is required to be heard and disposed of.
4. Mr. Oza, the learned advocate for the applicant-petitioner urged that since the order has not been signed by the Court, it was open to be revised, altered or even set aside having regard to the provisions contained in O. 20, R. 3 of the Civil Procedure Code which, according to him, would apply in view of section 87 of the Act. It was then urged that any party has a right to withdraw his suit and that since he desires to withdraw his application, the order passed by the Court should not be signed so as to be effective in the matter and it may be cancelled. In support thereof he has relied upon a decision in the case of Sangam Lal v. Rent Control and Eviction Officer, Allahabad, AIR 1966 All 221 (FB). Now under S. 87(1) of the Act, the procedure applicable under the Code of Civil Procedure tot he trial of suits is made applicable, as nearly as may be, to the election petitions subject to the provisions of this Act and of any rules made thereunder. Since there exists no provision touching the judgment to be delivered in any such election petition either under the Act or under any rules made thereunder, the provisions of the Civil Procedure Code would no doubt govern. Now Rule 1 of Order 20 provides that the Court, after the case has been heard, shall pronounce judgment in open Court, either at once or, as soon thereafter as may be practicable, on some future day; and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders. It follows therefrom that oral judgments in matters heard by the Court are contemplated, and they are pronouncements in open Court at once i. e. Soon after the hearing is completed. Then Rule 2 says that a Judge may pronounce a judgment written but not pronounced by his predecessor. Then comes other relevant Rule 3 which runs thus:--
'The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed shall not afterwards be altered or added to save as provided by Section 152 or on review.'
From this Rule 3 it was urged that only if the judgment is signed, it cannot be altered except by review or under section 152 of the Civil Procedure Code, and therefore, as long as it was not signed, the judgment was not effective, and it could be altered or even set aside. This view of his finds support from the decision in the case of AIR 1966 All 221 (FB). It lays down as under:--
'There is power of review both in cases where judgment has been delivered but not signed and cases in which judgment has been delivered, signed and sealed. In the former case, the power to alter to amend or even to change completely is unlimited provided notice is given to the parties and they are heard before the proposed change is made, while in the later case the power is limited and review is permitted only on very narrow grounds.'
Hence a judgment which has been orally dictated in open Court can be completely changed before it is signed provided notice is given to all parties concerned and they are heard before the change is made.
5. But this decision is principally based on the decision of the Supreme Court in Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194, and therefore it would be worthwhile to refer to that decision, which has been relied upon Mr. I. N. Nanavaty, the learned advocate for respondent No. 1. In this case, the Supreme Court has considered the question as to what can be called a judgment and as to when it becomes effective. The relevant observations are quite useful and they well bear on the point raised before me. Those observations run thus:--
'A judgment is the final decision of the Court intimated to the parties and to the world at large by formal 'pronouncement' or 'delivery' in open court. It is a judicial act which must be performed in a judicial way. The decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. This is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the Court. That is what constitutes the 'judgment'.
Going further, Supreme Court has observed as under:--
'As soon as the judgment is delivered, that becomes the operative pronouncement of the Court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and the there is irregularity in carrying them out if it is curable. Thus, if a judgment happens not to be signed and is inadvertently consequent on acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of this subsequent authentication.'
It follows from the above observations that once the judgment is delivered open Court, after the mater is heard in the presence of the parties, it becomes part of correcting and initialling or authenticating the same would be a matter of procedure. The order, no sooner it is formally declared with the intention of making it the operative decision of the Court, becomes thus final and effective and it makes no different whether it is signed, or initialled as is done by this High Court. Later on, in para 10 of the judgment, after explaining what the judgment is, their Lordships have dealt with that aspect in details and it would be worth quoting the observations in extenso. They are-:
'Small irregularities in the manner of pronouncement or the mode of delivery thing must be there that can neither be blurred nor left to interfere and conjecture nor can it be vague. All the rest - the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter can cured; but not the hard core, namely, the formal intimation of the decision and its contents formally declared in judicial way in open Court. The exact way in which this is done does not matter. In some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given of days for inspections.'
'It is then observed as under :-
'It is evidence that the decision which it so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in judicial way in open Court.'
6. Applying this test and taking into account Rule 1 to Order 20 which provides for the pronouncement of a judgment in open Court either at once or on a subsequent day, it is the final expression of the Court intimated to the parties and the world at large that matter. Signing thereof would is the date when way and the date thereof is the date when the judgment is delivered in open Court unless it has been postponed for being pronouncement on some future day when the judgment delivered. In view of this respect, I am unable to agree with the Full Bench decision of the Allahabad case relied upon by Mr. Oza for the applicant. It cannot be said that the mere fact that the order is not signed by me takes away the operative and effective character of the order delivered by me in open Court on 24-7-1967 in respect of the application for amendment given by the applicant in the petition. It may no doubt be that some formal corrections may have to be made, but the core of it cannot be altered or changed so as to modify the order or amend or even set at naught the same. That can be done only by the Court in appeal or in revision. It would no doubt be open to Court to review its own judgment under the provisions contained in section 152 or under Order 47, Rule, 1 of the Civil Procedure Code. But for that different considerations may arise and there is no such application before me. Therefore, the mere fact that the order was not signed by me does not necessarily entitle the applicant to say that this Court is bound to reopen the matter, put at naught the effect of the order and allow him to withdraw the application. If my opinion, it has the same effect as any other order whether it is signed by the Judge or not no sooner it has been delivered in open Court. If any such order were to be revised in the manner suggested by the learned advocate for the petitioner, there would hardly remain any sanctity and the finality about the judgment or order delivered in open Court and, in my opinion, the provisions cannot be loosely looked at. I find no justification, therefore, to revise, alter or set aside the order. It shall be intialled since its pronouncement has been already made in accordance with law.
7. In the view of the matter, it is unnecessary to consider a point raised by Mr. Nanavaty that the provisions contained in Order 20 do not apply to the ordinary original jurisdiction of this High Court, in view of the provisions contained in O. 49, Rule 3 of Civil Procedure Code, which say that among other rules, Rr. 1 to 8 of O. 20 shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. Now, under S. 30 of the Bombay Reorganisation Act, 1960 the High Court of Gujarat shall have, in respect of any part of the territories included in the State of Gujarat, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day (viz. 1-5-60), are exercisable in respect of that part of the said territories by the High Court of Bombay. Since by the High Court of Bombay before the appointed day was exercising similar powers of not signing the judgments in respect of the ordinary original civil jurisdiction, the rules contained on Order 20, Rules 1 to 8 relating to judgments cannot apply. In other words, all the powers and the practices that prevailed in the High Court of Bombay in regard to its ordinary original civil jurisdiction have remained and prevail in the High Court of Gujarat and in that view of the matter, O. 20, Rule 3 may not have any application. It was, however, pointed out by Mr. Oza, the learned advocate for the petitioner, that this is not a Chartered High Court and it cannot be said to have been exercising its ordinary original jurisdiction while exercising jurisdiction in election petitions. Apart from whether this High Court is a Chartered High Court or not, it can be easily said that this High Court exercises all such jurisdiction, powers and authority as was exercisable in respect of this part of Gujarat by the High Court of Bombay having regard to S. 30 of the Bombay Reorganistation Act, 1960 and that has been so held in the case of Manilal Maganlal v. Kalidas Manilal, 1 Guj LR 190 = (AIR 1961 Guj 7). It is, therefore, enough to say that the practices and powers which the Bombay High Court exercised with regard to pronouncement of judgments etc. do well prevail in this High Court. In fact the practice of this High Court is not to sign the judgments. They are merely initialled by the Judges and later on authenticated by the Registrar as the case may be. Rule 282 of the Rules and Forms of the Bombay High Court (on the Original Side) which applies to the original jurisdiction of this High Court, shows as to how the judgment shall be pronounced in open Court, and a minute thereof made by the Officer in Court. Rule 283 then says that when a judgment is delivered orally and a memorandum of appeal therefrom has been filed, the Judge shall prepare and furnish to the Prothonotary and Senior Master a note of this judgment and of his findings on the several issues raised. Such note shall form part of the record on appeal. In other words, in original civil jurisdiction what is material is the judgment which has been pronounced in open Court and it nowhere says that the judgment shall operate when it is signed by the Judge. The practice and procedure followed, therefore, also tends to suggest that the judgment or order was operative no sooner it was pronounced in open Court duly intimating the parties and the world at large.
8. Apart from this position, there is hardly and good ground disclosed which would justify this Court to set at naught the order passed after hearing the learned advocates appearing for the parties in the case. What is stated in the 'Note' is that they have come to know that there is some formal defect in the proposed amendment sought. What that formal defect is, is not disclosed. It is, no doubt true, as pointed out Mr. Oza, that a party has a right to withdraw his suit unconditionally and no leave of the Court is required under O. 23, R. 1 of the Civil Procedure Code. He can, therefore, as well withdraw any such application. That may no doubt be so with regard to the suits or the applications filed in such suits but it may not be the same thing in election petitions for they stand governed under the provisions of Representation of People Act, 1951. Section 109 of the Act provides that an election petition may be withdrawn only by leave of the High Court. Then clause (2) says that where an application for withdrawal is made under sub-section (1), notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette. Then section 110 relates to the procedure for withdrawal of election petitions. In other words, much though it is not an election petition which is sought to be withdrawn, but it becomes a part of the election petition no sooner that application has come to be granted by the Court. When that is so, it would not be open to the petitioner to withdraw that part of the petition. The withdrawal of any such application for amendment of the pleadings could have been only possible if it was withdrawn before it came to be granted by this Court. Now that it has been granted, it becomes a part of the election petition and the withdrawal of that petition or a part of that petition is not permissible without out leave of the Court. That leave cannot be granted in view of the fact that certain consequences ensue out of the granting of such an application and that effects the rights accruing to some of the parties.
9. In was next urged by Mr. Oza, that as long as the amendment granted by the Court was not duly carried out, it can be allowed to lapse by the petitioner by not carrying out the same and in that event, the amendment cannot become the part of the petition. Now, it has to be at the outset stated that this application for amendment of the pleadings was not one under O. 6, R. 17 of the Civil Procedure Code but was obviously one under section 86(5) of the Act which permits the High Court to allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition. But shall nor allow any amendment of the petition which will have e the effect of introducing particulars of a corrupt practice not previously alleged in the petition. In other words, the powers of the Court to allow an amendment of the pleadings of the election petition stand governed by section 86(5) of the Act and the provisions of that event cannot apply. In the case of Harish Chandra Bajpai v. Trilokl Singh, AIR 1957 SC 444, it has been so held. The relevant observations run as under :-
'The true scope of the limitation enacted in S. 90(2) on the application of the procedure under the Civil Procedure Code is that when the same subject matter is covered both by a provision of the Act or the rules and also of the Civil Procedure Code, and there is a conflict between them, the former is to prevail over the latter. This limitation cannot two provisions in the same. Section 83(3) relates only to amendment sought is one of particulars, that section will apply to the exclusion of any rule of the Civil procedure Code which might conflict with it, though it does not appear that there is any such rule.'
It was, however, said that where the amendment relates not to particulars but to other matters, that is a filed not occupied by S. 83(3) and O. 6, R. 17 Civil P. C. will apply. In other words, the applicability of O. 6, R. 17 would not come in operation here since we have specific provision regarding amendment or amplification of particulars in section 86(5) of the Act. When such is the position, it would be difficult to say that O. 6, R. 18 of Civil procedure Code which flows from O. 6, R. 17 would come in effect. By Rule 18 it is provided that if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court. As I said above, this would not come in effect for granted is not one under O. 6, R. 17 but under section 86(5) of the Act. Apart from that position, I have already set out here above the prayer clause in this application granted - it being to amend and amplify the particulars as set out in the Schedule annexed to the application. He has then prayed for treating the amendments as pre the contents of the Schedule as part of the main election petition' and that request has been granted. The amendments as by passing of order by this Court, No such amendments are required to be carried out as contemplated under O. 6 R. 18 or under any of the rules framed by the High Court. It was said that certain words in para 7 of the application are ordered to be deleted and that some amendment would have to be carry out in respect. With the order passed by this Court, they automatically stand deleted from the application itself and even if any such amendments is not carried out, it does not later the position to say that there remains an option tot he applicant not to carry out the same so that the order may become ineffective. That cannot be so allowed in respect of the pleadings sought to be amended under section 86(5) of the Act much though they may in respect of pleadings amended under O. 6, R.17 of the Act. In any view of the case, therefore, so far as the 'Note' is concerned, there is hardly any good ground requiring this Court to stop its hand in initialling the order and set at naught the orders passed by this Court by allowing him to withdraw the amendment application as claimed under the note. Any such withdrawal if at all is to be effected in respect of any apart of this petition, cannot be by such a note filed before this Court but by a separate proceeding.
10. It was next urged by Mr. J. R. Nanavaty, the learned Advocate for respondent No. 2, that no summons for directions were taken out by the applicant in having the matter placed before the Court for orders, that he was not served with a copy thereof and that he did not know about the matter being placed for hearing this amendment application. He further said that he was interested in the petition and that the order should be treated as a nullity against him. Ordinarily no doubt it is true that all the parties to a petition are served with the copies of the application sought to be placed before the Court for passing orders. There can be no dispute on that proposition. According to him, it was necessary to take out summons for directions under rule 23 of the Rules framed by the High Court of Gujarat under the Act. Rule 23 contemplates a certain procedure to be followed after the written statements have ben filed by the parties concerned. The relevant part thereof refers to summons to be taken out for directions in respect of pleadings, interrogatories, particulars, admission of documents and facts, lists of witnesses, discovery, inspection and production of documents, fixing a date for settling issues and for trial of any issues as preliminary issue, fixing a date for hearing of the petition and such other matters as may in the circumstances of the case be expedient. As against this, Mr. Nanavati, the learned advocate for respondent No. 1, invited a reference to rule 37 which relates to applications made in an election petition. It provides that all applications in each election petition shall be separately recorded in a Register maintained for the purpose, containing the following column, and then it is said that when an application is filed, the same shall be placed before the Judge as part of the election petition for passing necessary orders. Now even if a summons for direction was necessary to be taken out, and instead an application was given in the election petition as contemplated in rule 37, it would not make any serious difference, for, as I said above, the party must know about it and he has to be heard in respect thereof. Now a separate applications is to be recorded and it has to be placed before a Judge for passing orders. It was that way that this application has been separately numbered and registered and had come to be placed before the Court for passing orders on the day when the main election petition was fixed for settlement of issues. The date for settlement of issues was, however, admittedly known to all the parties, including respondent No. 2 and his advocate Mr. Nanavaty. Mr. Nanavaty was, this, in the know of the fact that it was fixed for settlement of issues before this Court. His contention is that he was merely engaged and instructed to appear for settlement of issues provided he was not busy in other Court. It is rather difficult to believe that part of the affidavit made by respondent No. 2 in his proceeding, for, the Vakalatnama of Mr. Nanavaty signed by respondent No. 2 shows on the other hand that he was engaged to appear, to Act and plead on behalf of respondent No. 2 in the election petition. Mr. Nanavaty has not filed any such affidavit and in fact, on seeing the proceedings his presence appears to have been noted. The affidavit of respondent No. 2 further shows that he had come in Court during the time when the order was being dictated, and thinking that it was in respect of settlement of issues he had left the Court. The suggestion that the order that was being dictated was with regard to the settlement of issues and that an advocate should so think, hardly sound so probable or true in the circumstances of the case. All that, to my mind, appears to have ben put up with a view to avoid his presence at the time when the matter was heard. The respondent No. 2 Dr. Chhotabhai Patel has filed this affidavit on the information received from some other person . he was not present some other person. He was not present in Court. On his own showing, at any rate, Mr. Nanavaty was present in Court at the time when the order was being dictated and when that is so, one would have expected him to draw the attention of the Court that he was unaware of the application or about what he had to say in that respect. Not having done so cannot justify him now to say that he was unaware of the hearing of this application or of the order that came to be passed by the Court.
11. On that contrary, what appears is that he was a party who supported the petitioner in the main petition and, therefore, went by what the petitioner did in the matter. He remained quite indifferent and possibly may not have paid attention to what happened in Court. In fact, having regard to S. 82 of the Act he was hardly a necessary party inasmuch as the declaration sought for in the election petition is for setting aside the election of respondent No. 1 and not claiming to have respondent No. 2 as declared duly elected under section 98(c) of the Act. Nor was he a candidate against whom any allegations of corrupt practice were made so as to be a necessary party required to be joined under section 82(b) of the Act. In those circumstances, he was not a party necessary to be joined as contemplated under section 82 of the Act. It is indeed true, as pointed out by Mr. Nanavaty, that he could have moved the Court for being permitted to be jointed as party-respondent under section 86(4) of the Act. That was no doubt permissible to him and in that sense now that he has been joined as a party he can be said to have been interested in the result of election. Howsoever interested he may have been, the fact remains that there was no prejudice caused to him when the order came to be passed after hearing the petitioner's advocate in respect of the application and more so when there was no relief claimed against him. Nor do there appear any allegations against him in the application. Apart from that position, as already pointed out hereabove, he was duly represented by an advocate and the matter can be said to have been decided in his presence rather than in his absence as is attempted to be said. Not having raised any such objection to the granting of an application for amendment of the pleadings cannot entitled him to be heard now to say that he did not know anything about it and that the order passed by the Court should be set aside-it being a nullity in the case. If he did not appear, he can make no grievance about it as he was expected to appear in Court at the time of settlement of issues. This application for amendment was essential to be considered before settlement of issues and when any such matter comes up before the Court, it has to be dealt with after hearing the parties affected thereby. There is neither any injustice more prejudice caused to him. After all, the rules of procedure are intended for helping the cause of justice an d if no-observance thereof does not to affect or prejudice any party, they cannot come in the way to an extent that the order passed can be set aside or declared as nullity. The order cannot, therefore, be set aside as sought to be urged by Mr. Nanavaty for respondent No. 2
12. IN the result, therefore, the order passed by the Court stands and is effective from the time it was delivered in open Court by this Court. All the objections raised in that respect are overruled. The petitioner shall pay costs of this proceeding to respondent No. 1 and bear his own. The odvocates' costs shall be taxed at Rs. 150 for the same.
13. The summons for directions taken out by respondent No. 1 shall be heard hereafter.
14. Order accordingly.