1. These are two revisions by the plaintiffs Nandlal and another against the judgments of the Civil Judge, Retangarh dated 18-12-1951, in two suits for the recovery of price of certain cloth sold. The suits were decided by the learned Judgeas email cause' court suits. As they raise identicalquestions of law going to the very root of thetrial in either case, I propose to decide, them bya single judgment.
2. The plaintiffs are dealers in cloth and carry on business at Sujangarh. The defendants were hawkers and also dealt in cloth. The plaintiffs' case was that the defendants purchased certain cloth from the former and failed to pay the price thereof. The plaintiffs, therefore, filed a suit against Puran for a sum of Rs. 200/- including a sum of Rs. 44/1/- as interest -- the rest being the price of the goods sold -- and against Chandra for a sum of Rs. 125/- out of which she price of goods sold was Rs. 97/1/3 and interest Rs. 27-14-9;
The defendant in either case completely denied the plaintiffs' suit and pleaded that he had no dealings whatsoever with the plaintiffs. The learned Civil Judge held that the plaintiffs had failed to prove the suit transactions and, therefore, dismissed both suits. These revisions have been, filed from the aforesaid judgments.
3. Learned counsel, for the petitioners has raised a number of grounds before this Court I do not consider it necessary however, to deal with all of them as the cases can be satisfactorily disposed of on certain legal grounds with which I propose to deal immediately, as those grounds go to the root of the trial.
4. The first contention raised on behalf of the petitioners is that the learned Civil Judge did not record evidence in the two cases himself but asked his clerk to record the same and that the latter had done this without the hearing of the learned Judge;
It is contended that this was a grave violation, of procedure and completely vitiated the trial. In, support of this contention, an affidavit was filed by the plaintiff Durgadutt in which he deposed that his own statement and that of defendant; Pooran in the one, case and that of Chandra In the other case had been recorded by the Sarisbtedar of the Civil Judge, Ratangarh, and that when the Sarishtedar was recording the statements, he was seated on the floor towards the back side of Judge. He further deposed that when the Sarishtedar was taking down the statements, the Civil Judge was sitting in his chair disposing of other work and took no part in the proceedings at the time.
This affidavit has been sought to be answered by a counter-affidavit by defendant Pooran in either case. Pooran admits that the Statements were recorded by the Sarishtedar but he adds that the latter recorded the statements under the instructions of the Civil Judge and under his supervision and that the Civil Judge was doing no other work at the time,
He further deposes that the clerk was sitting down on the floor at the side of the Civil Judge and that 'at that time the Judge was giving directions to the clerk in the recording of the depositions. As the contention' raised on behalf of the 'petitioners Was of very great importance, for a proper disposal of this case, a report was called for from the learned Civil Judge (Mr. Shikhar Chandt himself. The latter in his report dated 2-2-1953, states that
'the statements of the parties were recordedby the Reader within my presence, hearing withmy full attention and according to my instructions,and* with the consent of the parties as well astheir pleaders.'
He further observed that the petitioners had no objection to the recording of the statements by the clerk and that the allegations' made by them were entirely false and were nothing out an afterthought.
I am constrained to observe before proceeding further that the reply of the Civil Judge is vague and half-hearted. Although he has stated thett the statements of the parties were recorded within his presence and hearing, and he was fully attentive when they were being recorded, it is significant that he has not dared to deny that he was doing any other work at the time.
It does not appeal to me to be a far-fetched or illegitimate inference from the manner in which he has submitted his report that very probably he has engaged in some other work while the Sarishtedar was recording the statements. If the learned Judge was doing no other work aft the time and was fully attentive to the recording of the depositions by the clerk I should have expected the former categorically to state that he was in point of fact engaged in no other business and that the clerk was recording the depositions under his., immediate supervision and to his dictation.
It, therefore, follows that the entire evidence in these two cases had been recorded by the clerk while the presiding Judge was engaged in some other work at the same time. The question, in these circumstances arises whether such a trial should be accepted as proper. Learned counsel for the opposite parties vehemently argued that even assuming that the learned Civil Judge was otherwise occupied, this was a matter, of no great importance because the depositions had been signed by the witnesses and it had not been shown that they were incorrect in any particulars and that any prejudice had been occasioned by the manner of such recording to the petitioners.
The contention in short was that the irregularity committed by the Civil Judge, if shy, was curable and should not be given effect to without proof of prejudice. I have given this matter my very anxious and careful consideration and have come to the conclusion that the contention raised on behalf of the opposite parties must be repelled.
Order 18, Rules 13 and 14, C. P. C. have a bearing on the decision of the point raised before me. Rule 13 lays down the procedure for recording evidence in non-appealable cases. It says that
'In cases in which an appeal is not allowed, it shall not be necessary to take down the evidence of the witnesses in writing at length; but the Judge, as the examination of each witness proceeds, shall make a memorandum of the substance of what he deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.'
Then follows Rule 14 which is in these terms:
'(1) Where the Judge is unable to make a memorandum as required by this Order, he shall cause the reason of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court.'
'(2) Every memorandum so made shall form part of the record.'
It seems to me obvious from the plain language of these rules that' primarily the Judge himself must in such cases make a memorandum of the substance of what a witness deposes. It is further provided, however, that where a Judge is, for some valid reason, unable to make a memorandum himself, he must do two things: first, he must cause the reason of his inability to be recorded and further the memorandum of evidence to be made in writing must be from his dictation in open court.
The learned Civil Judge has not cared in the present cases to comply with the safeguards laid down by law: nor are these safeguards, in my opinion, are mere formalities. The importance of recording, depositions of witnesses with accuracy in any civilized system of administration of justice cannot be over-emphasized. Upon this depends the final judgment. This requirement is of added importance in cases where the Legislature in its wisdom does not allow any further appeal from the judgment of the trial court,
It is, to my mind, therefore, of the greatest importance that the presiding officer in a case like this should carefully comply with the provisions of law and leave no loophole so that public confidence remains unimpaired in the administration of justice. It will 'indeed be shocking if the trial Judges should get evidence recorded by their clerks while they are busy doing other work and judgments based on such evidence are allowed to stand. Such a mode of trial is not, most certainly, contemplated by the Code and is altogether illegal.
I would draw the attention of the court below to the abservations of their Lordships of the Privy Council in -- 'Subrahmania Ayyar v. Emperor', 25 Mad 61 (A), where their Lordships held that the disregard of an express provision of law as to mode of trial was not a mere irregularity. See also in the same connection -- 'Pulukuri Kottaya v. Emperor', AIR 1947 PC 67 (B). The principle of these cases clearly applies to the situation before me, and I have no hesitation in coming to the conclusion that where a trial has been conducted in a manner different from that prescribed by the Code, the trial must be held to be bad and in such a case no question of prejudice really arises.
5. There is yet another grave irregularity which has been brought to my notice in connection with the trial of these two suits. It appears that these, cases were registered as regular suits in the court of the Civil Judge, Ratangarh, some rime in October, 1950, who at that time did not exercise Small Cause Court powers. Summonses were issued to the defendants and they were served and written statements were filed. Then on 8-11-1951, the Court ordered that these suits be tried as small Cause Court suits and further proceedings were taken accordingly.
This was obviously done because in the meantime the Civil Judge came to 'be invested with Small Cause Court powers. The law is well established that where the trial of a case has properly commenced as an ordinary suit, it must be continued as such and the trial of such a suit' as a Small Cause Court suit, because the trial Judge happened to be invested with Small Cause Court powers subsequent to the filing of the suit, is improper. Reference may be made in support of this conclusion to Sub-section (2) of Section 30 of the Rajasthan Small Cause Courts Ordinance (No. VIII) of 1950.
It follows, that the, learned Civil Judge whenhe ordered the trial of the present suits as Small'Cause Court suits after they had been registeredand their trial ccmmenced as ordinarily suits waswholly Wrong and illegal. The trial of these suitsmust be held to be bad on this ground also.
6. It was contended by learned counsel on behalf of the opposite parties that even though the judgments and decrees of the court below be erroneous in law or fact, this Court will not as a rule interfere with them except under very special circumstances. Learned counsel Invited my attention to -- 'Rajeshwar v. Dashrath', AIR 1943 Nag 117 (PB) (C), in support of the proposition put forward by him. This contention has no' force in the circumstances of the present case.
As I have already shown above, the trial in the present cases has taken place in a manner 'not contemplated by the Code, and, therefore, it is nothing more than a travesty of the trial, I am definitely of opinion that a judgment based on such a trial could in no maner be accepted as being according to law within the meaning of Section 25, small Cause Courts Act- In fact, one of the learned Judges of the Nagpur High Court in Rajeshwar's case (C), cited above, Niyogi J. clearly observed that the phrase 'according DO law' implied according to the forms of law prescribed for ensuring a fair trial.
It is impossible to say, having regard to the mode of trial adopted in these cases, that the trial was at all a fair one or that it was according to the forms prescribed by the Code for ensuring a fair trial. I, therefore, overrule this contention and hold that this Court is perfectly competent to interfere, in the present cases.
7. The result is that I allow these revisions,set aside the judgments and decrees of the courtbelow in both cases 'and send them back to theCivil Judge, Ratangarh, who will try them as ordinary suits and decide them 'afresh according tolaw. The petitioners will be entitled to their costsin this court but further costs will abide the event.