Judgment :- 1. After hearing the Original Petition, we dictated judgment in open court on the 19th December, 1973. The operative portion of the judgment then dictated reads as follows: "To sum up, we decline the prayer embodied in prayer No. 3 in the petition. We declare that the alleged appointment of the petitioner on the 1st of March, 1972 we guard ourselves by saying alleged appointment because some doubt was raised about the fact of appointment was an appointment to a post recognised by the Ordinances that were applicable at that time and further that in regard to that appointment no approval of the University was necessary. But we decline to grant any further relief to the petitioner." 2. On the 22nd of December, 1973, within three days of the delivery of the judgment by dictation to the Shorthand Writer, the petitioner has moved C M.P. No. 15852 of 1973 to withdraw the prayer No. 3 from the Original Petition. The question is whether this prayer can be granted. This petition was opposed by the Advocate General on behalf of the State. He contended that a judgment can be pronounced by dictation to the Shorthand Writer, that the judgment has been pronounced on the 19th of December, 1973, that such pronouncement is delivery of the judgment, that by such delivery the judgment has become final and that thereafter no alterations or additions or deletions should be made to the judgment excepting such changes that can be made by virtue of the provision in S.152 of the Code of Civil Procedure or by the application of the provision for review in Order XLVII of the Code of Civil Procedure. On the other hand, counsel for the petitioner contended that even going by the specific rules in Order XX of the Code of Civil Procedure relating to judgments', till the judgment has been finalised, after it is transcribed by the Shorthand Writer, corrected by the judges that pronounced it and signed by them, the judgment does not become final and alterations can be made in the judgment. He particularly emphasised that all that this Court said at the time of the pronouncement of the judgment was that relief No. 3 claimed by the petitioner could not be granted in proceedings under Art.226 of the Constitution and that whether such a prayer could be granted will depend upon the questions of fact; the nature of the agreement with the Government by the private educational institutions and other like matters which have to be determined in proceedings other than that under Art.226 of the Constitution. By virtue of that, it is said, no rights accrued in favour of any one. He contended that the right to withdraw from a suit is an unfettered right that neither the Code of Civil Procedure nor any principle of law has limited this right and that any ban on the exercise of the right to withdraw unconditionally can arise only when a judgment had become final and a decree had been passed. The right to withdraw is a right of the plaintiff and no permission of the Court even is necessary though when a suit is withdrawn no fresh suit can be brought on the same cause of action (R.1 (3) of Order XXIII). 3. Before dealing with the question whether the prayer for withdrawal can be granted after the judgment was dictated in open court, we would advert to the point whether the provisions in the Code of Civil Procedure as such would apply to proceedings under Art.226 of the Constitution. 4. It is now well-established that an application under Art.226 of the Constitution is a civil proceeding. It is also an original proceeding though the jurisdiction that we exercise in dealing with such applications is a special and an extra-ordinary original jurisdiction. Being a civil proceeding, we think, S.141 of the Code of Civil Procedure will be attracted, and in view of the terms thereof, the procedure provided in the Code in regard to suits will have to be followed as far as it can be made applicable. Being a civil proceeding, we think, S.141 of the Code of Civil Procedure will be attracted, and in view of the terms thereof, the procedure provided in the Code in regard to suits will have to be followed as far as it can be made applicable. If they are to be followed as far as it can be made applicable, it may not be perhaps correct to look at the particular wording of a rule as for instance the wording in R.1 of Order XXXIII of the Code of Civil Procedure where the expression 'suit' is mentioned enabling a litigant to sue in forma pauperis and say the provision will be applicable only to suits as such. We are aware this Court ruled otherwise in the decision in A. V. Balan v. District Collector, Trichur reported in 1972 KLT 588 where it has been held that Order XXXIII of the Code of Civil Procedure will not apply to proceedings under Art.226 of the Constitution. This decision being that of a Division Bench, we do not wish to say anything more now than to say with respect that the decision might require reconsideration in appropriate other proceedings. This Bench however took a different view in regard to the applicability of 0.47 of the Code of Civil Procedure in Abdul Kareem v. District Medical Officer, Ernakulam reported in 1974 KLT 21. It may be useful to recollect that 0.47 uses the expression 'decree or order' and it may perhaps be possible to argue that a judgment disposing of an application under Art.226 of the Constitution is not an order, nor the operative part of the judgment a decree, and therefore 0.47 as such will not apply. This is not the view that we took therein, and we venture to think, rightly, for, when S.141 of the Code of Civil Procedure says 'as far as it can be made applicable', it uses the expression similar to mutatis mutandis an expression embodying the principle of adaptability enabling an understanding of words in a manner different from their literal sense. So we think, we will be perfectly justified in applying the principles embodied in the Code of Civil Procedure in deciding this question even though in terms a section or a rule in an order may not apply to a petition like this. So we think, we will be perfectly justified in applying the principles embodied in the Code of Civil Procedure in deciding this question even though in terms a section or a rule in an order may not apply to a petition like this. We must therefore turn to the provisions contained in Order XXIII which uses the expression suit. It is clear that the principle embodied in the rules confers an unfettered right on the part of the plaintiff to withdraw the suit. Referring to R.1 of Order XXIII, the Supreme Court observed in M/s. Hulas Raj Baij Nath v. Firm K. B. Bass and Co. reported in AIR. 1968 S.C 111 that there is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit. The decision however struck a warning note which we consider is important, by stating that "different considerations may arise where a set-off may have been claimed ". And in Ishwarbhai Desaibhai Patel v. Vadilal Lallubhai Mehta and others reported in AIR. 1968 Gujarat 289 it has been laid down that a judgment when once pronounced in open court will become effective and operative and that by such delivery of the judgment if rights had accrued to the parties the withdrawal cannot be permitted in such circumstances. That was a case where by the granting of the amendment application by an order dictated in open court, rights had accrued to a party on which he relied on and filed a written statement claiming the benefit of that right. It was thereafter that the application for withdrawal of the earlier petition for amendment of the election petition which had been granted by a dictated order, was made before the court, and in such circumstances the withdrawal was held to be not permissible. Subject to the limitations pointed out by these principles we will have to refer to the provisions in Order XX, R.1 to 3,. which we think, should govern the matter. We shall read these rules: 1. (1) Judgment when pronounced. Subject to the limitations pointed out by these principles we will have to refer to the provisions in Order XX, R.1 to 3,. which we think, should govern the matter. We shall read these rules: 1. (1) Judgment when pronounced. 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. (2) The judgment may be pronounced by dictation to a shorthand writer in open Court. 2. Power to pronounce judgment written by Judge's predecessor-A Judge may pronounce a judgment written but not pronounced by his predecessor. 3. Judgment to be signed, transcript of shorthand. The judgment shall bear the date on which it is pronounced and shall be signed by the judge, and, when once signed, shall not afterwards be altered or added to, save as provided by S.152 or on review: Provided that 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 necessary, be signed by the judge." 5. The important provisions in these rules are sub-rule (2) of R.1 which statutorily enables a judgment being pronounced by dictation to a shorthand writer in open Court, and the provision in R.3 that the judgment shall bear the date on which it is pronounced and shall be signed by the judge, and, when once signed, shall not afterwards be altered or added to, save as provided by S.152 or on review. The proviso in that rule is also equally important. That proviso enables a judge or judges who pronounced a judgment by dictation to a shorthand writer in open court to revise the transcript of the judgment, the revision being such "as may be necessary" and then the signing of the judgment after such revision. A revision of the transcript of the judgment to the extent that may be necessary is therefore specifically provided by the rule itself. What is the necessary revision, we presume, is for the judges to determine but then there must be certain inherent limitations to this power of revision. A revision of the transcript of the judgment to the extent that may be necessary is therefore specifically provided by the rule itself. What is the necessary revision, we presume, is for the judges to determine but then there must be certain inherent limitations to this power of revision. The obvious thing that strikes us is that after having pronounced a judgment in deciding a case in favour of one party the necessity for revision certainly cannot enable the judges to reverse the judgment and give the decision in favour of the other side. Short of such limitations, all types of revisions are permissible according to the terms of the rule. Perhaps realising this, the Advocate General contended that the first part of R.3 which says that the judgment shall become final when it is pronounced and signed will not apply to a judgment pronounced by dictation to the Shorthand Writer, and that in such cases it is the pronouncement that is the important aspect and the signing is immaterial. The pronouncement involves delivery and by the delivery the case is finished and the court has become functus officio. The revision is only a correction of clerical errors and accidental slips or omissions and perhaps may embrace the change of the language making it grammatical or perhaps read better but nothing more. The Advocate General relied on very high. authority which according to him supported him. He invited our attention to the decision of the Judicial Committee of the Privy Council wherein the judge who drew up the judgment left on leave without signing the judgment. The other judge who sat with him and was a party to the judgment signed the judgment and also signed it on behalf of the judge who had gone on leave. It was contended before the Judicial Committee that this was not a judgment at all, that it was a nullity and that in any event the judgment should be set at naught. The head-note in the AIR. It was contended before the Judicial Committee that this was not a judgment at all, that it was a nullity and that in any event the judgment should be set at naught. The head-note in the AIR. report correctly depicts the dictum in the case and we shall extract it but before doing so, it is necessary to refer to R.31 of Order XLI of the Code of Civil Procedure which enjoins that the judgment of the appellate court shall be in writing and shall state the four points enumerated in the rule and further that the judgment shall at the time that it is pronounced be signed and dated by the judge or by the judges concurring therein. With reference to this rule, the Judicial Committee observed as follows in Firm Gokal Chand-Jagan Nath v. Firm Nand Ram Das-Atma Ram reported in AIR. 1938 P.C. 292: "The Rule 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 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 S.99 and 108, Civil P.C. S.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. But in truth the difficulty is disposed of by S.99 and 108, Civil P.C. S.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 S.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." 6. A reading of this passage from the judgment seems to indicate that if a judge had prepared a judgment and died before signing it, the judgment could be delivered in court and lit will be binding on the parties but this view has not been accepted by the Supreme Court in Surendra Singh and others v. State of Uttar Pradesh reported in AIR. 1954 S.C.194. Here also the identical thing happened. The Judge that prepared the judgment died before the pronouncement of the judgment. The other judge of the Division Bench that heard the appeal, along with the judge who died, delivered the judgment. It was held by the Supreme Court that it is the delivery of the judgment that is important and that at the time of the delivery of the judgment the judge that prepared the judgment not being alive, it is no judgment at all. So even if a signature is not vital, the continued existence of the judge implying concurrence on his part to what he said in the judgment at the time of its pronouncement, would be essential. These principles, if we may say so with respect, salutary and necessary as they are, cannot perhaps be completely transplanted to determine what should be the position when a judgment is pronounced in open court by dictation to the Shorthand Writer. A certain amount of flexibility of approach considering the stress and strain in these days arising from the volume of work to be dealt with which necessitates dictation in open court is necessary. A certain amount of flexibility of approach considering the stress and strain in these days arising from the volume of work to be dealt with which necessitates dictation in open court is necessary. R.3 of Order XX must be understood in this background. When a judgment is pronounced in court immediately after the arguments, it is possible that some important aspects had not been adverted to either by the judges or by counsel that appeared in the case. It had become necessary on a number of occasions to repost a case after a judgment had been "pronounced" using the expression in sub-rule (2) of R.2 of Order XX in open court for a re-hearing and for a re-pronouncement which at times took a different shape and form. If we proceed on the basis that what is said in open court to a Shorthand Writer after hearing counsel is final and cannot form the subject of any reflection in calmer moments at the time of the re-reading and at the time of the re-examination of the documents, and at the time of the closer scrutiny of the decisions quoted before us, pronouncements by dictation in open court would be a dangerous process; a process which should be avoided at all costs. We do not think that the rule implies any such meaning. We should approach the question of interpretation bearing this aspect in mind. We think that the view can be sustained that R.3 read with the proviso of Order XX of the Code of Civil Procedure would enable a revision, if found necessary, by permitting withdrawal of a prayer, a revision to alter a view which is seen to be a wrong one. There is no doubt that when once a judgment had been pronounced in open court by dictation to a Shorthand Writer, no alterations should be made in the judgment which would materially alter the conclusions that have been reached in the judgment, without the matter being re-heard and without affording full opportunity to counsel or party to further argue the matter before the court. But when a doubt is felt about the correctness of the view taken, it must be permissible to repost the case and the view that when once a judgment had been dictated in open court to a Shorthand Writer the court has become functus officio cannot be accepted. But when a doubt is felt about the correctness of the view taken, it must be permissible to repost the case and the view that when once a judgment had been dictated in open court to a Shorthand Writer the court has become functus officio cannot be accepted. By the terms of the rule, a judgment will become final only when it is signed. If the court may not insist upon the signature, the absence of a signature in certain circumstances may not make the judgment or the decree a nullity. But it is the signature in the judgment that makes the judgment inviolable and unalterable, and as long as the judgment had not been signed it is certainly possible for the judges who heard the case to have the questions re-examined and express their final conclusion in the judgment, after affording opportunities to the parties or counsel for a re-hearing. 7. Now turning to the particular request in this petition, it involves only the withdrawal of a prayer which according to the view that we took, cannot be granted in proceedings under Art.226 of the Constitution. To say that the prayer cannot be granted in proceedings under Art.226 of the Constitution does not mean that the petitioner is not entitled to the relief, that he cannot get it elsewhere and that he cannot take other appropriate proceedings for the grant of the same relief. It only means that the jurisdiction which we exercise does not permit us to grant that relief, or does not oblige us to consider the question as it involves the examination of questions of fact. By saying so, no rights would accrue to the opposite side excepting the right to contend that the matter should not be again considered in proceedings under Art.226 of the Constitution. The petitioner does not seek a re-examination. All that he wants is that this Court need not deal with prayer No. 3. We see no objection in granting this relief. We allow this petition. The question arising from prayer No. 3 is thus left open.