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Bai Dhuli Wd/O Narsibhat Chhotalal and ors. Vs. Bai Ichha Wife of Somabhai Chhotabhal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1227
AppellantBai Dhuli Wd/O Narsibhat Chhotalal and ors.
RespondentBai Ichha Wife of Somabhai Chhotabhal
Cases ReferredBasanti Devi v. Abdul Sattar
Excerpt:
.....of the case. thus, it must be held in view of the aforesaid legal position, that the present revision application was effectively disposed of on 9-2-1983 moment the judgment was dictated to the stenographer in open court by surti, j. that non-signing of the judgment which was effectively pronounced in open court would be a mere irregularity. dictated the judgment in the second appeal in open court to the stenographer, the second appeal got effectively disposed of and the act of signing of the transcript, dating and signing it were mere formalities non-compliance whereof was not fatal to the effective disposal of the case and the judgment in the second appeal which was pronounced in open court became operative on its pronouncement and the second appeal could not be treated as still..........justice under certain unfortu-nate circumstances which will be presently stated by me.2. this revision application arises under the provisions of the bombay rents, hotel & lodging house rates control act. it has been filed by the petitioners-original defendants who are aggrieved by the decree for possession passed against them by the small cause court at baroda and as confirmed by the appellate court. the decree for possession is passed under section 13(1)(hhh) of the bombay rent act. this revision application reached final hearing before late a. n. surti, j. on 9-2-1983. after hearing the learned advocates of both the sides, surti, j. dictated an oral order in the court to the stenographer. under the said order, the revision application was dismissed. rule was discharged, but the.....
Judgment:

S.B. Majmudar, J.

1. This revision application has been placed before me vide the orders of Honourable the Chief Justice under certain unfortu-nate circumstances which will be presently stated by me.

2. This revision application arises under the provisions of the Bombay Rents, Hotel & Lodging House Rates Control Act. It has been filed by the petitioners-original defendants who are aggrieved by the decree for possession passed against them by the Small Cause Court at Baroda and as confirmed by the appellate court. The decree for possession is passed under Section 13(1)(hhh) of the Bombay Rent Act. This revision application reached final hearing before late A. N. Surti, J. on 9-2-1983. After hearing the learned Advocates of both the sides, Surti, J. dictated an oral order in the court to the stenographer. Under the said order, the revision application was dismissed. Rule was discharged, but the respondent-landlady was directed not to execute the decree for possession for a period of three months from the date of the oral order i. e. 9-2-1983. I am told that the said oral order was subsequently transcribed, but before the transcribed order could be signed by Surti, J. unfortunately, he expired. Under these circumstances, the transcribed order has remained unsigned. It is thereafter that pursuant to the direction of the Honourable the Chief Justice, this revision application has been placed before me for further orders.

3. At the outset, I must state that both the learned Advocates Mr. Shelat as well as Mr. Akshay Mehta have made it clear before me that they do not wish to reargue the matter and both of them treat the oral order as dictated to the stenographer by Surti, J. on 9-2-1983 as final order and that they have nothing more to say in the matter.

4. Even otherwise, it appears clear that once the order was dictated in open court to the stenographer on 9-2-1983, by Surti, J. dismissing the revision application, it must beheld that the said order had become final. As laid down by a Division Bench of this Court in Ghhotalal Jivabhai v. Vadilal Mehta 12 G.L.R. 850, once a judgment is dictated by the judge to the stenographer in open court, it 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 and it effectively disposes of the case. The aforesaid legal position has been made clear in para 46 of the report. It is, however, made clear in the said para of the report that the concerned Judge can alter or amend the said dictated judgment or even change it completely before he signs the same and if a change involves an alteration of the decision and not merely an addition or substraction of a part of the reasoning, the Judge has to give notice to the parties and rehear them on the point of change, but he can certainly change the judgment so long as he has not signed it. In the present case, that contingency did not arise as Surti, J. never expressed any desire to change the judgment after he dictated it in open court. And even if it was to be changed, it would have been the privilege of Surti, J. alone. Thus, it must be held in view of the aforesaid legal position, that the present revision application was effectively disposed of on 9-2-1983 moment the judgment was dictated to the stenographer in open court by Surti, J. In firm Gokal Chand v. Tirm Nand Ram , the Privy Council had an occasion to deal with the effect of pronouncement of an appellate judgment in open court. In that connection, the Privy Council referred to Order 41, Rule 31, Sections 99 and 108 of the Code of Civil Procedure, 1908. Lord Wright speaking for the Privy Council held that in case appellate judgment is pronounced in open court but the same could not be signed by the concerned judge, the judgment is not rendered a nullity on account of the fact that it was not signed by the concerned judge. That non-signing of the judgment which was effectively pronounced in open court would be a mere irregularity. Order 41, Rule 31, C. P. Code was noted in this connection. The said rule lays down that the judgment of the appellate court shall be in writing and shall state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the judge or by the judges concurring therein. The Privy Council considered the question whether signing of the judgment was an essential ingredient for making the judgment effective. Treating the said ingredient as not absolutely essential, the following pertinent observations were made by the Privy Council speaking through Lord Wright in the aforesaid judgment:

Rule 31 of Order 41 does not say that if its requirements are not complied with, the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed, the rule does not even state any definite time in which it is to be fulfilled. The lime is left to be defined by what is reasonable. The rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to certainty in the ascertainment of what the judgment was. It is a rule which judges are required to comply with for that object. No doubt in practice, judges do so comply, as it is their duty to do. But accidents may happen. A judge may die after giving judgment but before he has had a reasonable opportunity to sign it. The court must have inherent jurisdiction to supply such a defect. The case of a judge who has gone on leave before signing judgment may call for more comment, but even so the convenience of the court and the interest of litigants must prevail. The defect is merely an irregularity not affecting the merits of the case of the jurisdiction of the court and is no ground for setting aside the decree.

5. In view of the aforesaid pronouncement of the Privy. Council, it is obvious that a properly pronounced judgment in open court does not lose its efficacy merely because on account of unforeseen and irremediable circumstances, pronounced judgment could not be signed by the author thereof as has happened in the present case. The judgment, however, remains fully effective and non-signing of the judgment would be treated as a mere irregularity. A Division Bench of the Rajasthan High Court had an occasion to consider a similar question. A second appeal was dismissed by oral judgment by J. P. Jain, J. of the Rajasthan High Court. But before the judgment could be transcribed and before its typed copy could be signed by the learned judge, he unfortunately expired. The question was whether the second appeal could be treated to be pending which could be reargued on merits by the learned Advocates. The legal representatives of the original appellant against whom the aforesaid judgment in second appeal was pronounced in open court, moved the Rajasthan High Court for rehearing the appeal by treating it as undisposed of as J. P. Jain, J. had not signed the typed copy of the judgment. It is in these circumstances that the matter was referred to the Division Bench of the Rajasthan High court for resolving the controversy between the parties. Negativing the contention raised on behalf of the heirs of the original appellant, Modi, J. speaking for the Division Bench in Basanti Devi v. Abdul Sattar , took the view the movement J. P. Jain, J. dictated the judgment in the second appeal in open court to the stenographer, the second appeal got effectively disposed of and the act of signing of the transcript, dating and signing it were mere formalities non-compliance whereof was not fatal to the effective disposal of the case and the judgment in the second appeal which was pronounced in open court became operative on its pronouncement and the second appeal could not be treated as still pending in the court for disposal. The Rajasthan High Court has placed reliance on the aforesaid privy Council case in Gokalchand's case (supra) as well as a decision of the Supreme Court reported in : 1954CriLJ475 . It is true that the Rajasthan High Court has also placed reliance on Rule 88(2) of the Rajasthan High Court Rules. So far as this High Court is concerned, no such rule could be pointed out by the learned Advocates, but even apart from that, on the well settled legal position, it must be held that moment the judgment was dictated in open court to the stenographer by Surti, J. after hearing the learned Advocates of both the sides the revision application was effectively disposed of. Transcription of the judgment and subsequent signing of the typed transcript by the concerned judge were procedural requirements whose non-compliance cannot fatally affect the effective pronouncement of the judgment made earlier in open court. The ratio of the decision of the Rajasthan High Court based as it is on the earlier decision of the Privy Council, noted by me earlier, in my view lays down the correct legal position and I entirely concur with the same. As seen earlier, even the Division Bench judgment of this Court in Chhotalal's case (supra) has taken the same view, however, in a different context. It must, therefore, be held that this revision application was effectively disposed of by Surti, J. on 9-2-1983. No further order can be passed therein now save and except declaring that the said revision application shall be treated to have been finally disposed of on 9-2-1983 by Surti J. The office shall treat the said civil revision application as finally disposed of on 9-2-1983 by Surti, J. and shall proceed to deal with the same inaccordance with law.


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