Skip to content


Smt. Basanti Devi and ors. Vs. Abdul Sattar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Case No. 274 of 1975 in Second Appeal No. 187 of 1973
Judge
Reported inAIR1976Raj239
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rules 1, 2 and 3 - Order 41, Rules 30 and 31; Rajasthan High Court Rules - Rule 88(2)
AppellantSmt. Basanti Devi and ors.
RespondentAbdul Sattar and ors.
Appellant Advocate C.L. Agarwal and; M.C. Bhoot, Advs.
Respondent Advocate J.P. Joshi, Adv.
DispositionPetition dismissed
Cases ReferredBeni Madho Prasad Singh v. Adit
Excerpt:
.....a day for that purpose, of which due notice shall be given to the parties or their pleaders'.this rule like rule 30 of order 41, civil p. agarwal, we should like to refer to the decision of their lordships of the privy council in firm gokal chand-jagan nath v. while there, he dictated a judgment as purporting to do so on behalf of himself and his brother judge, that is to say, it purported to be a joint judgment, he used the word 'we' and not 'i'.he signed every page of the judgment as well as at the end, but did not date it. thus, if a judgment happens not to be signed and is inadvertently 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 its..........it came up for hearing before the hon'ble j.p. jain, j. at the close of the hearing, the learned judge dictated the judgment, to a shorthand writer in open court on september 10, 1975, in presence of the learned counsel for the parties and dismissed the appeal. by the order of the learned judge, the fact dismissing the appeal was recorded in the order sheet by the reader of the court on that very day, i.e. september 10, 1975. before the transcript of the judgment could be signed by the learned judge, he unfortunately expired. as per rule 88 of the rajasthan high court rules, the registrar, after obtaining the orders from hon'ble the acting chief justice, appended the following note at the end of the typed transcript of the judgment,-- 'the judgment was dictated and delivered in open.....
Judgment:

Modi, J.

1. This is an application made on behalf of Smt. Basanti Devi and her minor son Prahlad under Order 20, Rule 3, Civil P. C. and Rule 88 (2) of the Rajasthan High Court Rules read with Section 151, Civil P. C.

2. The facts which have given rise to this application may be shortly stated. Hiranand filed a second appeal in this Court under Section 100, Civil P. C. against the judgment of the Additional District Judge No. 2, Jodhpur, dated February 27, 1973. This appeal was registered as S. B. Civil Regular Second Appeal No. 187 of 1973. It came up for hearing before the Hon'ble J.P. Jain, J. At the close of the hearing, the learned Judge dictated the judgment, to a shorthand writer in open Court on September 10, 1975, in presence of the learned counsel for the parties and dismissed the appeal. By the order of the learned Judge, the fact dismissing the appeal was recorded in the order sheet by the Reader of the Court on that very day, i.e. September 10, 1975. Before the transcript of the judgment could be signed by the learned Judge, he unfortunately expired. As per Rule 88 of the Rajasthan High Court Rules, the Registrar, after obtaining the orders from Hon'ble the Acting Chief Justice, appended the following note at the end of the typed transcript of the judgment,--

'The judgment was dictated and delivered in open Court by the Hon'ble Justice J.P. Jain on September 10, 1975. His Lordship's signature could not be obtained on the judgment because of his sad demise on 17-9-1975.'

3. On December 4, 1975, the legal representatives of the deceased appellant Hiranand (who died during the pendency of the appeal) moved the present application with the prayer that since the transcript of the judgment pronounced by the late Hon'ble J.P. Jain J. on September 10, 1975 was not signed by the learned Judge, it is not a judgment in the eye of law and therefore the second appeal No. 187 of 1973 should be deemed to be still pending before this Court. This application is vehemently opposed by the learned counsel for the respondents.

4. The relevant law on the subject is contained in Rules 30 and 31 of Order 41 of the Code of Civil Procedure. Rule 30 provides that 'the appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.' This rule contemplates oral pronouncement of the judgment in the open Court at once i.e. soon after the conclusion of the hearing. Then comes Rule 31, which is important. It runs thus,--

'31'. Contents, date and signature of judgment.-- (1) 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.

(2) Where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.

(3) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialled by him'.

5. Mr. Agarwal learned counsel for the applicants, has moved the application under Order 20, Rule 3 of the Code of Civil Procedure. Since we are concerned here with the appellate judgment, the appropriate provisions of law applicable to the case are Rules 30 and 31 of Order 41, Code of Civil Procedure. Even so, let us examine, Rules 1, 2 and 3 of Order 20, which relate to judgments delivered by the trial Court. 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'. This rule like Rule 30 of Order 41, Civil P. C. provides for oral pronouncement of a judgment in open Court at once i.e. soon after the hearing is concluded. Then Rule 2 says that 'a Judge may pronounce judgment written but not pronounced by his predecessor.' Then comes the important Rule 3, which is almost similar to Rule 31 of Order 41, Civil P. C. It runs thus,--

'3. Judgment to be signed.-- (1) 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.

(2) Where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.

(3) In cases where judgment is not written by the Judge in own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialled by him.'

On the basis of the above rules, it is urged by Mr. Agarwal, learned counsel for the applicants, that it is only if the judgment is signed that it cannot be altered or added to except by review or under Section 152 of the Code of Civil Procedure, and therefore, as long as the typed transcript in the present case was not signed by the late Hon'ble J.P. Jain J., the judgment was not effective, for, the learned Judge, if he had survived would have altered or revised or even set it aside. Mr. Agarwal, in support of his view, places reliance on a Full Bench decision of the Allahabad High Court in Sangam Lal v. Rent Control and Eviction Officer, AIR 1966 All 221 and a Division Bench decision of the same High Court in Beni Madho Prasad Singh v. Adit, AIR 1953 All 416.

6. Before dealing with the cases cited by Mr. Agarwal, we should like to refer to the decision of their Lordships of the Privy Council in Firm Gokal Chand-Jagan Nath v. Firm Nand Ram Das-Atma Ram, AIR 1938 PC 292. Their Lordships pointed out,--

'Rule 31 of Order 41 does not say that if its requirements are not complied with, the judgment shall be a nullity'.

We may add that none of the provisions of the Code of Civil Procedure including Rules 30 and 31 of Order 41 and Rules 1, 2 and 3 of Order 20 lays down that non-compliance of any of its provisions shall result in invalidating the judgment dictated and pronounced in open Court and not signed by the Judge. At p. 295, their Lordships of the Privy Council observed,--

'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 time 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 secure 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 the 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. But in truth the difficulty is disposed of by Sections 99 and 108, Civil P. C. Section 99 provides 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 in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. That Section comes in the part dealing with appeals from original decrees. But Section 108 applies the same provision to appeals from appellate decrees and it is always in the discretion of the Board to apply the principle on appeal to His Majesty in Council In their Lordships' judgment the defect here was an irregularity not affecting the merits of the case or the jurisdiction of the Court, and is no ground for setting aside the decree.'

7. The facts there were quite the same as here because the judgment was actually delivered in open Court and both the Judges, who constituted the Bench, were present and concurred in it. But before the transcript could be signed, one Judge went on leave. Their Lordships of the Privy Council held that the fact that the judgment was not signed by one of the Judges, constitute a mere irregularity which could be cured.

8. Having regard to this conclusion of their Lordships of the Privy Council, it must be held in the present case; that the judgment dictated by the late; Hon'ble J.P. Jain J. in open Court in the presence of the parties is a valid judgment of this Court even though the typed transcript of the judgment could not be signed by the learned Judge.

9. Rules 85 to 88 of the Rajasthan High Court Rules make the position further clear. Rule 85 (1) provides that after a case has been heard, judgment may be pronounced either at once or on some future date which shall be notified in the Day's List according to these Rules. Rule 85 (3) lays down that where a case has been heard by a single Judge and judgment has been reserved, his judgment may be pronounced, if such Judge be not present by the another Judge. Rule 86 says that where the judgment or order is delivered orally in open Court, It shall be taken down by a judgment writer and a transcript thereof shall form part of the record. Rule 87 says that the transcript of the judgment or order prepared by the judgment writer shall be filed by him with the paper book or record of the case to which it relates not later than three days from the date on which such judgment or order was delivered. Rule 88 reads thus,--

'88. (1) When the transcript of the 5udgment or order prepared by the judgment, writer has been filed with the paper-book or record of the case, the Bench Reader shall submit it to the Judge or Judges who delivered it. It shall then be signed or initialled by such Judge or Judges after such corrections as may be considered necessary. Thereafter it shall be sealed with the seal of the Court by the Bench Reader.

(2) When a Judge by whom the judgment or order was delivered is not available on account of illness, retirement or any other cause, the transcript shall be submitted to the Chief Justice and it may be sealed under his orders without the signature of such Judge, a note to that effect being made on such judgment or order under the signature of the Registrar.

(3) Where a written judgment or order is delivered it shall, after it has been signed or initialled by the Judge or Judges delivering it, be sealed with the seal of the Court by the Bench Reader.'

Rule 88 (2) lays down in clear terms the procedure to be followed where the Judge, by whom the judgment or order was dictated in open court, is not available subsequently on account of illness, retirement or any other cause. In the present case, the procedure laid down in Rule 88 (2) was followed on the death of the Hon'ble J.P. Jain J. and the transcript of the judgment dictated by him on September 10, 1975, was submitted to Hon'ble the Acting Chief Justice, who ordered the Registrar to seal the judgment without the signature of the late Hon'ble J.P. Jain J. The Registrar thereupon appended a note to that effect at the end of the transcript of the judgment. Mr. Agarwal contends that the procedure laid down in Rule 88 (2) applies only if the Judge, who dictated the judgment was not available on account of illness, retirement or any other similar cause. According to Mr. Agarwal, this rule has no applicability where the Judge, who delivered or dictated the judgment in open court, died before he signed the transcript of the judgment. To our mind, the contention is wholly untenable. Rule 88 (2), in our opinion, fully applies where a Judge, by whom a judgment or order is delivered, is not available on account of his death. The words 'any other cause' must be read ejusdem generis with the words 'not available', which include death.

10. We now take up the cases cited by Mr. Agarwal. The first case on which reliance has been placed is a Full Bench decision of the Allahabad High Court in Sangam Lal v. Rent Control and Eviction Officer, (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 or 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 latter case the power is limited and review is permitted only on very narrow grounds. We are therefore of the view that 1961 All LJ 244 = (AIR 1961 All 326) (supra) was rightly decided and our answer to the question referred to us is as follows: 'A judgment which has been orally dictated in open Court can be completely changed before it is signed and sealed provided notice is given to all parties concerned and they are heard before the change is made.' '

This Full Bench case of Allahabad High Court is not of much assistance to Mr. Agarwal as he did not take into consideration what will happen if the judgment dictated to the judgment writer in open court in the presence of the parties could not be signed owing to the death of the Judge, who pronounced and dictated the judgment. In such a case, no question of changing it after notice to the parties can arise.

That apart, the Full Bench decision referred to above, is based on the decision of the Supreme Court in Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194 where the facts were these. Two Judges of the High Court of Allahabad (Lucknow Bench) heard a criminal appeal in which the judgment was reserved, Before it could be delivered, one of the Judges was transferred to Allahabad. While there, he dictated a judgment as purporting to do so on behalf of himself and his brother Judge, that is to say, it purported to be a joint judgment, he used the word 'we' and not 'I'. He signed every page of the judgment as well as at the end, but did not date it. He then sent this 'judgment' to the other Judge at Lucknow. Unfortunately, the other Judge died before the judgment was delivered. After his death, his brother Judge purported to deliver the judgment of the Court. The question for decision before the Supreme Court was whether this judgment could be validly delivered after the death of one of the two Judges, who heard the appeal. Their Lordships held that the judgment is not a valid judgment In reaching this conclusion, it was pointed out at page 196,--

'Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of 'locus paenitentiae' and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed before hand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full-fledged judgment and become operative. If follows that the Judge who 'delivers' the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part............'

The facts of the Supreme Court case do not afford an analogy to the instant case. That was a case of reserved judgment where one of the members of the Bench died before the judgment was delivered. In the present case, the judgment of the Court was dictated and formally pronounced in the open court in the presence of the parties.

The Supreme Court, in the above case, has also considered the question as to what is a judgment and when it becomes effective. The relevant observations of their Lordships run as under, --

'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' '

Proceeding further, their Lordships observed, --

'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 if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently 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 its subsequent authentication.'

It is thus abundantly clear from the observations of their Lordships of the Supreme Court that once the judgment is delivered in open court after the matter is heard in the presence of the parties, it becomes effective and operative and the subsequent part of revising, correcting and signing or authenticating the same, would be a matter of procedure. The judgment no sooner it is formally declared with the intention of making it operative becomes final and effective and it makes no difference whether it is signed or not. After explaining what the judgment is, their Lordships, in paragraph 10, observed ,--

''............Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there; that can neither be blurred nor left to inference 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 be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.'

Their Lordships then observed,--

'It is evident that 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. 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 a judicial way in open Court.'

Bearing in mind, the above principles and taking into account Rule 30 of Order 41, which provides for oral pronouncement of judgment in open court either at once or on a subsequent day, it can safely be said that it is the final expression of the Court intimated to the parties and the world at large, that matters and not the signing of the judgment.

11. The next case on which Mr. Agarwal has placed reliance is Beni Madho Prasad Singh v. Adit, (AIR 1938 PC 292). In this case, on the close of the hearing, the two learned Judges dictated the judgment in open court, they allowed the appeal, set aside the decrees of the courts below and decreed the claim of the plaintiff-appellant with costs. Before the transcript of the judgment was signed by the learned Judges, the case was mentioned to them and they felt the necessity of having some points further clarified by further arguments from the counsel. The learned Judges, thereafter, heard further arguments and since the arguments were not concluded, it was ordered that the case may be listed again after a week for further arguments. After this stage, the case was never listed before the learned Judges for one reason or the other, and lot of time elapsed. In this interval, both the learned Judges ceased to be the Judges of the Court i.e. Allahabad High Court. The appeal was then listed before another Bench. It was then argued that the appeal must be deemed to have been heard and finally disposed on the date the former Bench dictated the judgment in open court and allowed the appeal. This contention was overruled by the learned Judges on the ground that so long as the transcript of the judgment was not signed, the power of the court to reconsider its order or rehear the case was not put an end to. The facts of this case are clearly distinguishable inasmuch as in the above case, the learned Judges who dictated the judgment in open court, themselves before signing the transcript of the judgment, felt the necessity of rehearing the arguments and actually reheard the case. In our opinion, the facts of this case are clearly distinguishable and cannot be applied to the facts of the present case.

For the reasons stated above, we find no substance in the application. It is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //