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Sheikh Ala Bux and ors. Vs. Sheikh Khidir Ahmad and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.618
AppellantSheikh Ala Bux and ors.
RespondentSheikh Khidir Ahmad and ors.
Excerpt:
civil procedure code (act v of 1908), section 99, order xx, rule 2 - judgment written and signed by judge who heard, the case pronounced by his colleague, validity of. - fletcher, j.1. this is an appeal by the plaintiffs against the decision of the learned subordinate judge of hughly, dated the 30th may 1916, affirming the decision of the munsif of uluberia. the suit was brought to establish title any 'to recover possession of three plots of land. the first court decreed the suit as regards plots nos. 1 and 2. against that decision, the defendant no. 7 appealed and a cross appeal was preferred by the plaintiffs. what happened in the lower appellate court was this: the learned judge who presided over that court, namely, the learned 1st subordinate judge of hughly, apparently had many duties cast upon him and, amongst others to hold courts at other places besides hughly. in this case, the learned judge having written and signed his judgment found it.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiffs against the decision of the learned Subordinate Judge of Hughly, dated the 30th May 1916, affirming the decision of the Munsif of Uluberia. The suit was brought to establish title any 'to recover possession of three plots of land. The first Court decreed the suit as regards plots Nos. 1 and 2. Against that decision, the defendant No. 7 appealed and a cross appeal was preferred by the plaintiffs. What happened in the lower Appellate Court was this: The learned Judge who presided over that Court, namely, the learned 1st Subordinate Judge of Hughly, apparently had many duties cast upon him and, amongst others to hold courts at other places besides Hughly. In this case, the learned Judge having written and signed his judgment found it inconvenient to himself, having regard to other public duties he had to discharge, to be present in the Court house at Hughly for the purpose of pronouncing the judgment so written and signed by him. In these circumstances, the learned Judge invited his colleague--the learned 2nd Subordinate Judge of Hughly--to read in open Court the judgment that he had written and signed. It is said that the whole thing is invalid. Of course, the only effect of that would be, if we assent to Dr. Kanjilal's argument, to direct the learned first Subordinate Judge to attend at the Court house at Hughly and to read out this judgment written and signed by him so that the appellants may be satisfied that the learned Judge has properly discharged the public duty cast upon him by the law. I do not think that that is so required. It is well known that Judges here from time to time, owing to ill-health or other unforeseen circumstances when they are unable to be present at the Court house do ask one of their colleagues to read the judgment in open Court. It is said that this procedure is unauthorized by the terms of the Civil Procedure Code. Even if it is, Section 99 clearly covers a case like this. It is a mere irregularity not affecting the merits of the case and does no harm to either party in the suit. It is absurd to direct the learned Judge to read this judgment in open Court again which has been read by his colleague.

2. The other point is this the learned Judge of the lower Appellate Court has dealt with the facts perfectly clearly in his judgment. He has stated in the appeal and the cross-appeal as to which portion of plot No. 2 the plaintiffs are entitled to succeed and as to which portion they are not entitled to succeed. He has drawn up his decree correctly and no reasonable person can have any doubt as to what the learned Judge meant. It is said, however, that because the learned Judge remarks that both the appeal and the cross-appeal fail, his judgment cannot stand and it is stated that these errors crept in owing to the violation by the learned Judge of the terms of the law by not attending the Court house personally. If the learned Judge has omitted to perform his duty by not attending the Court, nevertheless his judgment has got to be read in a reasonable manner and when it is read with the clear findings of fact and the decree, no reasonable person can have any doubt as to what the learned Judge meant to decide.

3. The present appeal fails and must be dismissed with costs.

Syed Shamsul Huda, J.

4. I agree.


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