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High Court on Its Own Motion Vs. Sunder Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 121 of 1984
Judge
Reported inAIR1986HP47
ActsCode of Civil Procedure (CPC) , 1908 - Section 2 - Order 41, Rules 31 and 35(2)
AppellantHigh Court on Its Own Motion
RespondentSunder Singh and ors.
Respondent Advocate Chhabil Dass and; A.K. Goel, Advs.
Cases ReferredIn Ramji Dass v. Inder
Excerpt:
- .....and sirmur districts at solan on mar. 10, 1982. the appeal thereafter reached hearing before the learned additional district judge from time to time. it appears that the arguments were finally heard on aug. 23, 1983 and the case was adjourned to aug. 25, 1983 for pronouncing judgment: the case appears to have been adjourned from time to time thereafter for pronouncing judgment and finally it stood adjourned to sept. 21, 1983. in the order-sheet of the record of the appeal, the following order finds place under the said date line :'called. present.sh. sunder singh appellant in person. none for respondent. appeal dismissed vide separate order of theday. file be consigned. sd/- maharaj singh'. a transcript of an unsigned judgment (hereinafter called 'the draft judgment') running into 10.....
Judgment:
ORDER

P.D. Desai, C.J.

1. Rule. To be heard today.

2. Mr. Chhabil Dass, waives service of the rule on behalf of respondents 1 and 2 and Mr. A. K. Goel, waives service of the rule on behalf of respondents Nos. 3 to 6.

3. This is a writ petition registered in exercise of the suo motu powers of this Court under Article 227 of the Constitution. The first and second respondents were the appellants and the third, fourth, fifth and sixth respondents were the respondents in Civil Appeal No. 127-S/13 of 1982 which was instituted in the District Court, Solan and Sirmur Districts at Solan on Mar. 10, 1982. The appeal thereafter reached hearing before the learned Additional District Judge from time to time. It appears that the arguments were finally heard on Aug. 23, 1983 and the case was adjourned to Aug. 25, 1983 for pronouncing judgment: The case appears to have been adjourned from time to time thereafter for pronouncing judgment and finally it stood adjourned to Sept. 21, 1983. In the order-sheet of the record of the appeal, the following order finds place under the said date line :

'Called. Present.

Sh. Sunder Singh appellant in person.

None for respondent.

Appeal dismissed vide separate order of the

day. File be consigned.

Sd/- Maharaj Singh'.

A transcript of an unsigned judgment (hereinafter called 'the draft judgment') running into 10 pages is found placed on the record. The operative part of the draft judgment reads as under :

'17. The appeal thus fails and is dismissed.

The file of this court be consigned.

ANNOUNCED IN OPEN COURT.

September 21, 1983.'

Some corrections in ink appear to have beenmade in pages 1 to 6 of the draft judgment. On the record is also found a decree duly drawn up signed by the learned Additional District Judge on September 21, 1983,

4. Unfortunately, the learned Additional District Judge, who heard the appeal, died before the judgment was duly signed. When this matter came to the notice of this Court, it was ordered that the case be listed for orders on the judicial side in exercise of the suo motu powers,

5. In Ramji Dass v. Inder, ILR (1975) Him Pra 543, R.S. Pathak, C. J., as he then was, had an occasion to consider whether a judgment dictated in open Court after hearing counsel for the parties but not signed and sealed could be regarded as final so as to make impermissible any subsequent withdrawal, alteration or modification thereof before it is signed and sealed. After considering a host of authorities, the learned Chief Justice made the following observations in para 10 of the judgment :

'It seems to me that the act of the Judge in signing and dating the judgment is regarded by the law as an act perfecting the judgment. Both Order 20 Rule 1 and Order 41 Rule 31 of the Civil P.C. require the Judge to sign and date the judgment on pronouncing it in open court. The requirement is not mere formality. It is an act which makes the judgment complete. Once the judgment is signed and dated after being pronounced in open court it cannot, as Order 20 Rule 3 declares, be altered or added to except for the limited purpose mentioned therein. That finality is also implied in Order 41 Rule 31.'

In para 11 of the judgment the learned Chief Justice reiterated the view by observing that so long as a judgment is not perfected by signing it, it would appear that it can always be withdrawn or altered or modified. Until perfected it is not a final judgment.

6. It would thus appear that the draft judgment, which is found placed on the record of the appellate court, since it was not duly signed by die learned Additional District Judge, still retained the character of a judgment to which finality was not attached. Order 41 Rule 31 of the Civil P.C, inter alia provides that the judgment of the appellate court shall be in writing and shall, at the time when it ispronounced, be signed and dated by the Judge. As observed by R. S. Pathak, C. J., in Ramji Das's case, the requirement of signing a judgment is not a mere formality . It is an act which makes the judgment perfect and complete. Mere pronouncement of the judgment, assuming that there was such a pronouncement, therefore, has not the effect of converting the draft judgment into the judgment of the court to which finality was attached.

7. True it is that some corrections are found made in ink in the first few pages of the draft judgment. Even assuming that the learned Additional District Judge had performed such an act, that would not convert the draft judgment into a final judgment. It is the signature, which the learned Additional District Judge was required to append at the appropriate place in the judgment, which would render it final and complete and not the corrections made in a few pages of the draft judgment. It cannot be overlooked In this connection that the corrections are found made only in a few pages of the draft judgment and that the remaining pages of the judgment do not have any corrections. It may be because the learned Additional District Judge might have found that no such corrections were necessary or may be because he had no time to go through the remaining pages of the draft judgment. Be that as it may, the indication from the circumstance of not appending the signature to the judgment under such circumstances clearly is that even the learned Additional District Judge regarded the transcript merely as a draft judgment and that he considered it no better than that.

8. Equally true it is that a decree formally drawn up was duly signed by the learned Additional District Judge on the same day on which he is recorded to have pronounced the judgment. Even this circumstance does not detract from the conclusion earlier reached. A decree, even if formally drawn up and duly signed, cannot have any force in the eye of law unless it is founded on a judgment which is complete and final. Under Order 41, Rule 35, Sub-rule (2) of the Civil P.C. the decree is required to contain a clear specification of! the relief granted or adjudication made. When there is no judgment to which finality could; be attached, no relief nor any adjudicationcould be regarded as having been granted or made.

9. For the foregoing reasons, in my opinion, the appeal preferred by the first and second respondents before the lower appellate court will require to be treated as not having been disposed of in accordance with law. The decree formally drawn up and duly signed will have to be treated as having no effect in the eye of law. The appeal will require to be readmitted on the file of the District Court and heard and decided afresh. Order accordingly.

10. Since the appeal was originally instituted in the District Court in March 1982, it would be expedient in the interest of justice to dispose it of as expeditiously as possible. Let early steps be taken in that direction. Let the parties appear before the District Court on June 14, 1984.

11. Rule made absolute accordingly with no order as to costs.


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