Murli Singh v. Sarswati — 1976 DIGILAW 352 (ALL)

JUDGMENT Virendra Kumar Member/Chairman. - This is a reference made by the Senior-most Member/Chairman to a Division Bench of the Board of Revenue regarding the interpretation of Rules 4 and 5 of Order XVIII, C.P.C. 2. The facts of the revision/reference No. 100 of 1970-71 district Jalaun (Murli etc. v. Smt. Sharbati and others) giving rise to the instant reference may be concisely stated. On the death of Badri, the recorded tenant, Dhan Singh as guardian of his three sons namely Murli Singh, Atar Singh and Chandan Singh minors applied for mutation of the names of the minors in place of Badri deceased on the basis of a registered will be executed by the deceased in favour of the minors. Sri Ram, Pradhan of the Gaon Sabha as well as Lekhpal contested that the deceased Badri died heir-less and as such his property should vest in Gaon Sabha. Smt. Sharbati objected on the ground that the deceased was her maternal uncle. He made no will in favour of Murli Singh and others. Dhan Singh had been in the police department and was.used to indulgence in such frauds. Dhan Singh was not in possession over the land in dispute. She was successor of the deceased through a will executed in her favour by the deceased in presence of several respectable persons of the village. The will was unregistered. After considering the evidence of the parties, the trial court came to the conclusion that the will executed in favour of Murli and others was fictitious and the will executed in favour of Smt. Sharbati was correct and legal. It, therefore, allowed mutation in favour of Smt. Sharbati. Being aggrieved by this order of the trial court, Murli Singh and others went in revision before the. Additional Commissioner was misconceived as he committed wrong exercise of jurisdiction in entertaining the revision application against the order of the Tahsildar and filed and reference, and ordered that the position remains as it stood under the orders of the Tahsildar dated December 31, 1965. The revisionist may adopt such course against that order as he thinks proper. Murli Singh and others thereafter wen in revision before the Collector, Jalaun, who rejected it on April 7, 1971. Murli Singh and others have now come up in revision before the Board under Section 219 of the U.P. Land Revenue Act. 3. The revisionist may adopt such course against that order as he thinks proper. Murli Singh and others thereafter wen in revision before the Collector, Jalaun, who rejected it on April 7, 1971. Murli Singh and others have now come up in revision before the Board under Section 219 of the U.P. Land Revenue Act. 3. During the course of arguments the referring Member found that there were conflicting views of courts regarding the interpretation of Rules 4 and 5 Order XVIII C.P.C. and hence he made a reference with the following remarks :- "I have considered the arguments put forward by the learned counsels for the parties. Para 59(1) of the Revenue Court Manual run as follows :- "The provisions of Rules 4 to 6 and 8 to 10 inclusive order XVIII C.P.C., 1908, shall apply to all proceedings of a judicial nature under the United Provinces Land Revenue Act, 1901." It is clear from this para that the provisions of rules 4 and 5 of O. XVIII C.P.C. will apply in the judicial proceedings under Land Revenue Act under which appeals and revisions both lie. Rules 4 and 5 or Order XVIII C.P.C. run as under:- 4. "Witnesses to be examined in open Court.-The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the judge. 5. How evidence shall be taken in appealable cases.-In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing in language of the court, by or in the presence of and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative, and, then completed, shall be read over in the presence of the Judge and of the witness and the Judge shall, if necessary, correct the same, and shall sign it." Rule 4 thus says that the evidence of the witnesses shall be taken in open court in the presence and personal direction of the Judge. There is no provision for a certificate as argued by the learned counsel for the revisionist. Rule 5, however, applies to appealable cases under the Land Revenue Act. There is no provision for a certificate as argued by the learned counsel for the revisionist. Rule 5, however, applies to appealable cases under the Land Revenue Act. Since there are decision of the Board on the subject as cited by the learned counsel for the revisionist, I consider it to be a fit case to be referred to a Bench of this court to answer the following questions of law- (i) Whether rule 4 of Order XVIII requires certificate mentioning that the statements were recorded in the presence of the Presiding Officer and under his direction in open court if they are not in the handwriting of the Presiding Officer. (ii) Whether the provisions of Rule 5 of Order XVIII C.P.C. apply to the cases where an appeal lies or also in those cases in which revision lies." 4. The learned counsel for the revisionist opened his arguments by pointing out that although there was difference between a revision and an appeal yet this difference is obliterated when due to some provision of law the revisional court can also look into the facts of the case. He maintained that although Section 218 of the U.P. Land Revenue Act provides for revision before the Commissioner and other officers, yet when the matter come up before the Board its powers are not limited or confined in any manner by Section 219 of the U.P. Land Revenue Act. Section 218 of the U.P. Land Revenue Act reads as follows- "Power of Commissioner, etc.-To call for records and proceedings and reference to State Government of Board. The Commissioner, the Additional Commissioner, the Collector the Record Officer, or Settlement Officer may call for and examine the record of any case decided or proceedings held by any officer subordinate to him for the purpose of satisfying as to the legality or propriety of the order passed and as to the regularity of the proceedings. The Commissioner, the Additional Commissioner, the Collector the Record Officer, or Settlement Officer may call for and examine the record of any case decided or proceedings held by any officer subordinate to him for the purpose of satisfying as to the legality or propriety of the order passed and as to the regularity of the proceedings. and, if he is of opinion that the proceedings taken or order passed by such subordinate officer should be varied, cancelled or reversed, he shall refer the case with his opinion there on for the orders of the Board, if the case is of a judicial nature or connected with settlement, or for the orders of the State Government if the case is of a non-judicial nature not connected with settlement ; and the Board or the State Government, as the case may be, shall thereupon pass such orders as it thinks fit." 5. Section 219 of the U.P. Land Revenue Act is to the following effect :- "Power of State Government or Board to call for files of subordinate officers and to revise orders.-The State Government may call for the record of any non-judicial proceedings not connected with settlement held by any Officer subordinate to it, and may pass thereon such orders as it thinks fit. The Board may call for the record of any case of a judicial nature or connected with settlement in which no appeal lies to the Board, if the Officer by whom the case was decided appear to have exercised a jurisdiction not vested, in him by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity, and may pass such orders in the case as it thinks fit." Relying on the case of Shankar v. Krishna, A.I.R. 1970 S.C. 1 he maintained that the Board exercises its revisional jurisdiction on the basis of the fact that it was also a court of appeal. This is the sum and substance of the famous case of Shanker v. Krishna, A.I.R. 1970 S.C. 1 in which their Lordships of the Supreme Court have observed : "The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of the Court below. This is the sum and substance of the famous case of Shanker v. Krishna, A.I.R. 1970 S.C. 1 in which their Lordships of the Supreme Court have observed : "The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior court and the power on the part of the former to review decision of the latter. When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the C.P.C. circumscribes the limits of that jurisdiction which is being exercised is a part of the general appellate Jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute." Basically and fundamentally it is the appellate jurisdiction of the High Court.which is being invoked and exercised in a wider and larger sense". He referred to a number of other cases on this point R.K. Singh v. Nagar Mahapalika, 1964 A.L.J. 906 and Hari Ram v. Deputy Director of Consolidation, 1971 A.L.J. 578 but they need not be discussed here because the case of Shankar v. Krishna, A.I.R. 1970 S.C. 1 can easily be regarded as the leading case on the subject. 6. The learned counsel next went on to point out that the provisions of Rules 4 and 5 of Order XVIII C.P.C. were in the nature of absolute enactments which were to be complied with strictly and literally and not even 'substantial compliance' could take the place of right enforcement of these rules. Relying on the case of Panna Devi v. Yad Ram, 1974 R.D. 37 and Rajendrapal Singh v. Gafoor Khan, 1975 R.D. 273, he maintained that the compliance of Rules 4 and 5 of Order XVIII C.P.C. read with Rule 59 of the Revenue Court Manual was absolutely mandatory. 7. Relying on the case of Panna Devi v. Yad Ram, 1974 R.D. 37 and Rajendrapal Singh v. Gafoor Khan, 1975 R.D. 273, he maintained that the compliance of Rules 4 and 5 of Order XVIII C.P.C. read with Rule 59 of the Revenue Court Manual was absolutely mandatory. 7. Countering these arguments, the learned counsels for the opposite party drew out attention to para 176 of the Revenue Court Manual, which reads as follows : "Application of certain provisions of the Civil Procedure Code.-The provisions of Rules 2 to 4, 6 to 10, 15 to 29, 31 to 37 of Order XVI Order XLII and Section 99 and 144 of the Code of Civil Procedure relating to appeals from decree shall apply to appeals from orders under the Uttar Pradesh Land Revenue Act ; Provided that the decree passed in the Board of Revenue may be dated and signed by the Registrar of the Board." According to them, this para made Section 99 of the Code of Civil Procedure applicable to appeals under the U.P.Z.A. and L.R. Act. This section is too well known to be reproduced verbatim and lays down that no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal, on account of any misjoinder of parties or cause of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the court. They contended that if according to the learned counsel for the revisionist, the revisions before the Board under Section 219 Land Revenue Act, 1901, were for all practical purposes an appeal then Section 99 should be fully applicable to it and as long as the merits of the case or jurisdiction of the Court were not affected, the proceedings in appeal will not be vitiated merely on account of any minor item like misjoinder of parties or cause of action or any error, defect or irregularity in the proceedings. In support of this proposition, they have cited a number of cases of other High Courts like the case of Bakshiram Mulchand v. Dwarika Prasad, A.I.R. 1928 Pat. 438 and Delhi Development Authority v. Shiv Charan, A.I.R. 1976 Delhi 22. In support of this proposition, they have cited a number of cases of other High Courts like the case of Bakshiram Mulchand v. Dwarika Prasad, A.I.R. 1928 Pat. 438 and Delhi Development Authority v. Shiv Charan, A.I.R. 1976 Delhi 22. They have also relied upon the case of Kiran Singh v. Chaman Paswan, A.I.R. 1954 S.C. 340 in which it has been held by their Lordships of the Supreme Court : 'It is a fundamental Principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution or even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of subject-matter of the action, strikes at the root of authority of the court to pass any decree and such a defect cannot be, cured even by consent of parties. Learned counsels further argued that even if an irregularity has.been committed by the non-compliance of rules 4 and 5 of Order XVIII C.P.C., this is a defect which is certainly curable in accordance with Section 99 of the Code of Civil Procedure. 8. They have next referred to the theory of waiver and relying on the case of Benigopal v. Gangadhar, A.I.R. 1949 Ajmer 23, they have contended that the objection raised at the earliest opportunity amounts to a waiver. In other words, if the revisionist did not raise the irregularity in the recording of evidence in the lower courts this point cannot be taken up in the course of instant revision. 9. As regards the provisions of Rule 5 of Order XVIII C.P.C., the learned counsels for the O.Ps. have relied on the case of Development Authority v. Shiv Charan, A.I.R. 1976 Delhi 22 in which the proceedings were held to be valid even if the depositions recorded before the Judge had not been signed by him. 10. The arguments of the learned counsels for the parties are full of wisdom, erudition and learned, but we regret to observe that they do not have a very direct bearing on the two questions which have been referred to this Bench for a decision. 10. The arguments of the learned counsels for the parties are full of wisdom, erudition and learned, but we regret to observe that they do not have a very direct bearing on the two questions which have been referred to this Bench for a decision. The two cases of the Board, referred to by the learned counsels for the revisionist Panna Devi v. Yad Ram, 1974 R.D. 37 and Rajendrapal Singh v. Gafoor Khan (supra) do not impress us greatly and being the Pronouncements of Single Members are liable to be overruled by the judgment of a Bench of the Board. Besides, which in one case the case of Ethiraj v. K. Gopalaswamy Chetty, A.I.R. 1972 Mad. 219 has been followed, the other does not given any convincing reason for interpreting rules 4 and 5 of Order XVIII of the Code of Civil Procedure. It would appear from the foregoing paras that there is paucity of case-law directly on rules referred to us and hence we have no option but to follow the opinions of eminent jurists regarding the interpretation of statutes and examine the principles which should guide the courts in finding out the real intention of legislature in framing a particular rule of enactment. 11. We would like to start with Maxwell (11) who has devoted a whole chapter to the general interpretation of statutes. According to him, there are three rules. He has quoted the first (12) as the preliminary rule or thhe rule of literal interpretation, the second, according to him, is the 'Mischief' rule (13) and the third is the 'golden' rule (14) is really a notification of the literal rule. 'It was stated in this way by Parks B'. It is very useful rule in the construction of a statute, to adhere to the ordinary meaning of the word used, and to grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or lends to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further'. If, said Brett L.J. 'the inconvenience is not only great, but what I may call an absurd inconvenience, by reading the enactment in its ordinary sense whereof if you read it in a manner in which it is capable through not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning'. From these observations he has passed on to the construction ut res magis valeat quam pereat. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the holder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purposes to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. 11. Maxwell's 'The Interpretation of Statutes by Land (12th Edn.). 12. Maxwell's 'The interpretation of Statutes 28. 13. Maxwell's 'The Interpretation of Statutes', 40. 14. Maxwell's 'The Interpretation of Statutes' by Langan (12th Edn.) 43. 12. In accordance with these principles, the court should avoid interpretations which would leave any part of the provision to be interpreted without effect, and will not narrow enactments designed to achieve a particular object' (15) . This is also the view of the eminent jurist Salmond (16) . 'Interpretation is of two kinds which may be distinguished as literal and functional. The former is that which regards exclusively the verbal expression of the law. It does not look beyond the liter legis. Free interpretation, on the other hand, is that which departs from the letter of the law and seeks elsewhere for some other and more satisfactory evidence of the true intention of the legislature. It is essential to determine with accuracy the relations which subsist between these two methods. In other words, we have to determine the relative claims of the letter and the spirit of enacted law. 15. Maxwell's 'The Interpretation of Statutes' 45. 16. Salmond on 'Jurisprudence by P.J. Fitzgerald (12th Edn.) 132. It is essential to determine with accuracy the relations which subsist between these two methods. In other words, we have to determine the relative claims of the letter and the spirit of enacted law. 15. Maxwell's 'The Interpretation of Statutes' 45. 16. Salmond on 'Jurisprudence by P.J. Fitzgerald (12th Edn.) 132. The traditional English view is the following. The duty of the judicature is to discover and to act upon the true intention of the legislature-the mens or sententia legis. The essence of the law lies in its sprit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. 13. Dr. Broom has cited certain legal maxims in support of the foregoing principles of interpretation for the purposes of implementing the enacted stautes. One of the Maxims which finds place in his classis book (17) is 'Actus Curie Meminem gravabit'-An act of the court shall prejudice no man. 'This maxim 'is found upon justice and good sense : and affords a safe and certain guide for the administration of the law (18) . Broom has observed : cases, however, have occurred in which injury was caused by the act of a legal tribunal, as by the laches or mistakes of its officers ; and where notwithstanding the maxim as to act us curie, the injured party was without redress (19) . This maxim has been exemplified by the Hon'ble Supreme Court in the case of Jang Singh v. Brij Lal and others, A.I.R. 1966 S.C. 1631. There is no higher principle for the guidance of the court than the one that the one that no act of Courts should harm a litigant and it is the bounder duty of courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This view has been consistently followed by almost all the courts. In the case of Kamta Singh v. Shri Ram Singh, 1971 R.D. 492, it has been observed that 'rules of procedure are meant only to help the administration of justice and not to penalise the parties'. This view has been consistently followed by almost all the courts. In the case of Kamta Singh v. Shri Ram Singh, 1971 R.D. 492, it has been observed that 'rules of procedure are meant only to help the administration of justice and not to penalise the parties'. Their Lordships of the Hon'ble Supreme Court also observed in the case of Jagat Dhish Bhargava v. Jawahr Lal Bhargava, A.I.R. 1961 SC 832 that the litigation deserves to be protected against the default committed or negligence shown by the courts or its officers in the discharge of their duties'. We have already accepted this principle in the Full Bench case of Ishwari v. Jugnu, 1975 R.D. 156 and see no reason why we should differ from our previous observations now. 17. Broom's Selections of Legal Maxims by Herbert F. Manistry (5th Edn.). 18. Broom's Selection of Legal Maxims' by Herbert F. Ministry, 97. 19. Broom's Selections of Legal Maxim's by Herbert F. Ministry, 98. 14. Broom has referred to another legal maxim 'Curaus curies Est Lex Curie' (24) - the practice of the court is the law of the Court. He has proceeded to observe : 'It has been remarked, moreover, that there is a material distinction between things required to be done by the common o statute law of the land and things required to be done by the rules and practice of the Court. Anything required to be done by the law of the land must be noticed by a court of appellate jurisdiction but such a court does not of procedure and practice, as in matters of discretion the practice of the House of Lords has been not to interfere with the decision of courts below, unless perfectly satisfied that they are based upon erroneous principles'. 24. Broom's Selection of Legal Maxims 108. 15. There is still another maxim reproduced by Broom which is to the effect 'Consensus Tollit Errorem' (The acquiescence of a party who might take advantage of an error obviates its effect). 24. Broom's Selection of Legal Maxims 108. 15. There is still another maxim reproduced by Broom which is to the effect 'Consensus Tollit Errorem' (The acquiescence of a party who might take advantage of an error obviates its effect). In accordance with the rule', if the venue in an action is laid in the wrong place and this is done per assen-sum partium, with the consent of both parties, and so entered of record, it shall stand ; and where, by consent of both plaintiff and defendant, the venue was laid in London, it was held, that no objection could afterwards be taken to the venue, notwithstanding it ought under a particular Act, to have been laid in survey, for consensus tollit errorem (25) . On the maxim under consideration depends also the important doctrine of waiver, that is, the passing by of a thing, a doctrine which is of wide application both in the science of a pleading and in those practical proceedings which have to be observed in the progress of a cause from the first issuing of the writ to the ultimate singing of judgment and execution (26) . He has further observed : 'When applied to the proceedings in an action, waiver may be defined to be doing something after an irregularity might have been corrected before the act was done ; and it is essential to distinguish a proceeding which is merely irregular from one which is completely defective and void. In the latter case, the proceeding is a nullity which opposite party knows of the irregularity it is a fixed rule observed by all the courts in this country, that he should come in the first instance to avail himself of it, and not allow the other party to proceed to incur expense. It is not reasonable afterwards to allow the party to complain of that irregularity, of which if he had availed himself in the first instance, all that expense would have been rendered unnecessary and therefore, if a party, after any such irregularity has taken place, consents to a proceeding which, by insisting on the irregularity he might have prevented he waived all exceptions to the irregularity. This is a doctrine long established and well known and extends so far a person may be material affected in a subsequent criminal prosecution by proceeding to the irregularity of which he has, by his silence, waived objection' (27) concluding his remarks he has stated : 'It may appear in some measure superfluous to add, that the consent which cures error in legal proceedings may be implied as well as expressed. For instance-where, at the trial of a cause, a proposal was made by the judge in the presence of the counsel on the both sides, who made no objection, that the jury should assess the damages contingently, with leave to the plaintiff to move to enter a verdict for the amount found by the jury, it was held that both parties were bound by the proposal and that the plaintiff's counsels was not, therefore, at liberty to move for a new trial on the ground of misdirection for quit tacit consentire ridetur, the silence of the counsel implied their assent to the course adopted by the judge, and 'a man who does not speak when he ought, shall not be heard when he desires to speak (28) . 25. Broom Selections of Legal Maxims 109. 26. Broom's Selections of Legal Maxims 110. 27. Broom's Sections of Legal Maxims' 110-111. 28. Broom's 'Selections of Legal Maxim's p. 112. 16. The maxim 'Communis Error Facit Jus' Broom's 'Selections of Legal Maxim's p. 112-(Common error sometimes passes current as law) is also important for the purposes of this reference. This law so favours the public good , that it will, in some cases, permit a common error to pass for right. Elucidating this maxim, Broom has observed that if a general understanding has prevailed on the practices of may years and the decisions of courts, based on this wrong conception of law, have been made for a length of time the basis upon which right have been regulated the maxim 'Communis Error Facit Jus' should be applied. He has concluded by saying that courts of justice have declined to correct misconception of long standing, the reluctance being due to a wholesome fear of interference with rights based upon them (29) . 29. Broom's 'Selections of Legal Maxims' p. 115. 17. He has concluded by saying that courts of justice have declined to correct misconception of long standing, the reluctance being due to a wholesome fear of interference with rights based upon them (29) . 29. Broom's 'Selections of Legal Maxims' p. 115. 17. We would conclude our observations, about legal maxims by mentioning just one more maxim 'De Minimis Non Curet Lex' (The law does not concern itself about trifling) Courts of justice generally do not take trifling and immaterial matters into account (30) in respect of which Broom has observed where trifling irregularity or even infractions of strict letter of the law are brought under the notice of the court the 'Maxim deminimis non curet lex' is of frequent practical application. It has for instance been applied in support of a rate in the assessment of which there was some comparatively trifling omission of established form. So with reference to proceedings for an infringement of the revenue law, Sir W. Scott observed that the court is not bound to strictness at once harsh and pendantic in the application of statutes. The law permits the qualification implied in the ancient maxim 'de minimis non curet lex'-where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which if continued in practice would weight little or nothing on the public interest, it might properly be overlooked (31) . 30. Broom's 'Selections of Legal Maxim's p. 115. 31. Broom's 'Selections of Legal Maxim's p. 117. 18. In the end we would like to mention the distinction drawn by Jagdish Swarup between mandatory and directory statutes. 'There is a distinction well recognised between a statute that is imperative and that which is merely directory. The scope and object of a statute are the only guides in determining whether its provisions are directory or imperative. In the absence of an express provision, the intention of the legislature is to be ascertained by weighing the consequences of holding a statute to be directory or imperative. No universal rule can be laid down for the construction of statute as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. In the absence of an express provision, the intention of the legislature is to be ascertained by weighing the consequences of holding a statute to be directory or imperative. No universal rule can be laid down for the construction of statute as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the courts to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed Lord Penzance said in 'Howard v. Budininu' : I believe as far as any rule is concerned, you cannot safely go further than in each case you must look to the subject matter, consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the matter is what is called imperative or a balance may be struck between the inconvenience or rigidly adhering to, an inconvenience of sometimes departing from its terms. Thus the construction of the mandatory words as directory and directory words as mandatory should not lightly be adopted. It will always be presumed that the legislature intends to use the words in their usual and natural meaning. It is only where a meaning leads to absurdity or great inconvenience or for some other reason as clearly to be the obvious intention of the legislature, that the words which are ordinarily mandatory in their nature, will be construed as directory or vice versa (32) 'Thus some rules are vital and go to the root of the matter : they cannot be broken : others are only directory and a bench of them can be overlooked provided there is substantial compliance with the rules. The intention of the legislature should be construed as mandatory, if the aim and object of that statute would be clearly defeated if the direction to do a thing in a particular manner is not strictly observed. A provision of law is not mandatory unless non-compliance with it is made penal. Statutes are not directory when to put them in that category would result in serious impairment of the public or private interests that they are intended to protect (33) . 32. A provision of law is not mandatory unless non-compliance with it is made penal. Statutes are not directory when to put them in that category would result in serious impairment of the public or private interests that they are intended to protect (33) . 32. Jagdish Swarup's 'Legislation and Interpretation' Second Edn. pp. 312-313. 33. Jagdish Swarup's 'Legislation and Interpretation' p. 314. 19. It is in the light of these opinions of eminent jurists that we have to interpret rules 4 and 5 of order XVII, C.P.C. 20. We do not consider it necessary to enter into the controversy regarding the different between appeal and revision and the consequences thereof. We would like to confine ourselves to the interpretation of rules 4 and 5 of Order XVIII and this we propose to do in the light of the observations of eminent jurists mentioned above. 21. First of all we have to see whether these rules are mandatory and in the nature of an injunction? There can be no doubt that the rules are purely procedural in nature. The eminent jurist of our country Jagdish Swarup has given a very lucid exposition of the mandatory and directory nature of the procedural rules. Even at the cost of repetition we would like to quote him again : 'Some rules are vital and go to the root of the matter. They cannot be broken, others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules, the intention of the legislature should be construed as mandatory, if the aim and object of the statute would be clearly defeated if the direction to do a thing in a particular manner is not strictly observed. A provision of law is not mandatory unless non-compliance of it is made penal. Statutes are not directory when to put them in that category would result in serious impairment of the public or private interests that they are intended to protect. 34 34. 'Legislation and Interpretation' by Jagdish Swarup, pp. 312-314. 22. Even a bare reading of the rules 4 and 5 of Order XVIII would show that they cannot be considered mandatory because there is no penal consequence in case the rules are not observed literally. 23. The famous jurist Salmond is also of the same opinion. 34 34. 'Legislation and Interpretation' by Jagdish Swarup, pp. 312-314. 22. Even a bare reading of the rules 4 and 5 of Order XVIII would show that they cannot be considered mandatory because there is no penal consequence in case the rules are not observed literally. 23. The famous jurist Salmond is also of the same opinion. According to him, the law of procedure may be defined 'as that brach of law which governs the process of litigation. It is the law of action-'Jus quod and actions pertinent'-using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law and relates not to the process of litigation but to its purposes and subject matter. Substantive law is concerned with the ends which the administration of justice seeks : procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relation of courts and litigants in respect of the litigation itself, the former in respect of the matter litigated. (35) 35. 'Salmond on Jurisprudence' by P.J. Fitzgerald, 12th Edn. pp. 461-62. 24. In view of these opinion, we have absolutely no hesitation in holding that the two rules (4 and 5) of Order XVIII (Code of Civil Procedure are not mandatory and are purely procedural in nature and it would not be quite correct to insist on a very narrow and literal interpretation of these rules. 25. It has to be seen, next, whether these rules are to be interpreted in an equitable and benevolent manner. All rules of interpretation, says Jagdish Swaroop 'are intended to guide in arriving at an interpretation which furthers the ends of justice rather then that which defeats them. If by a beneficial construction of the words or by placing a liberal interpretation on them the decision reached in a just one, there is no reason why any technical rule of interpretation should interfere with that decision. But liberality cannot overstep the legitimate limits of interpretation and put into the legislation something which is not there. If a benevolent interpretation is possible without violence to the spirit of the enactment, the courts are bound to resort to it in order to obviate the inconvenience or unjust consequence. But liberality cannot overstep the legitimate limits of interpretation and put into the legislation something which is not there. If a benevolent interpretation is possible without violence to the spirit of the enactment, the courts are bound to resort to it in order to obviate the inconvenience or unjust consequence. If the words used in a provision of law are reasonably capable of only one construction, the doctrine of liberal construction would be wholly out of place. It will play any part only if the words to be construed are capable of more than one meaning'. The duty of all the judges, according to him is always to make such construction as shall suppress the mischief and advance the object or the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and to add force and life to the cure and remedy according to the true intent of the makers of the Act. 'Pro bono publico'. It must always be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the legislature, even if that intention appear to the court to be injudicious. Moreover, in a case where courts are dealing with a beneficial legislation intended for the protection of tenants, if there is no doubt about the meaning of a provision, it should be resolved in favour of the tenants. A beneficial provision is not to be interpreted in a restricted sense. While construing a beneficial statute the approach should certainly be generous ; and a narrow or very limited view would not be in consonance with the preamble to such an enactment (36) . According to Jagdish Swarup, interpretation should be equitable. The function of the courts in interpreting a statute is to deduce the legislative intent and when this intent is doubtful or obscure, recourse may be had to the spirit and reasons of law. Only to that extent we can say that any doctrine of equitable construction can be said to have any validity. A court of law cannot give any relief, however equitable it might be, if it is in conflict with the express direction contained in the statute. Only to that extent we can say that any doctrine of equitable construction can be said to have any validity. A court of law cannot give any relief, however equitable it might be, if it is in conflict with the express direction contained in the statute. If the words of a statute are vague or ambiguous and capable of being construed in a manner which is consistent with the equity of the case, they can be so interpreted, but where the direction contained in the statute is clear and unambiguous, it is not open to a court to disregard that direction. Thus express words of an Indian statute are not to be overridden by reference to equitable principles which may have been adopted in the British Courts. They cannot be controlled or whittled down by the general principles of equity, justice and good conscience. In other words, clear provision of a statute has to be followed and given effect to, and it cannot be displaced by a mere equitable principle, however wholesome it might be. However, if the law is capable of more then one interpretations, the courts must give a liberal and equitable construction (37) . 36. Jagdish Swarup 'Legislation and Interpretation' pp. 97-99. 37. Jagdish Swarup's 'Legislation & Interpretation' pp. 101-102. 26. Judged by the criteria of the legal maxims quoted by Broom in paras 14 to 17 above and on the basis of the opinions of Maxwell, Salmond and Jagdish Swarup it would be perfectly justified for us to construe rules 4 and 5 of Order XVIII, C.P.C. in a benevolent manner. The first maxim which we have dwelt at length on this principle in para 13 of this order and we need no repeat all that has been said in the above paragraph. 27. The first maxim which we have dwelt at length on this principle in para 13 of this order and we need no repeat all that has been said in the above paragraph. 27. The second maxim which we have quoted 'Cursus Curie Est Lex Curie' (The practice of the court is the law of the court) fully justifies our view that there should be no harsh insistence on the compliance of these rules more in letter then in spirit because it is an established practice not only in revenue but also in civil courts that the witnesses are examined, cross-examined and re-examined in the presence of the presiding Officer of the court and after the deposition has been recorded the statement is signed by the witness as well as the Judge or the Assistant Collector as the case may be. It is a well-known fact that no court records a certificate to the effect that the depositions were recorded in his presence under his personal direction and superintendence. Rule 4 and 5 also do not provide that any such certificate should be recorded by the presiding Officer. Actually, the word 'Certificate' does not find any place in both these rules. 28. Our view that the two rules should not be interpreted literally and strictly is further borne out by the maxim 'Communis Error Facit Jus'-common error sometimes passes current as law (38) and 'De Minimis Non Curat Lax'-the law does not concern itself about trifles (39) both the which have already been referred to in great detail. 38. Broom's Selection of Legal Maxims' by Herbert FF Misty, 7th Edn. p. 112. 39. Broom's 'Selection of Legal Maxims' p. 115. 29. Again, there is a strong presumption when a deposition contains the signature/thumb impression of the witness and the signature of the presiding officer that judicial and official acts have been duly performed. This presumption is provided in Section 114 of the Indian Evidence Act which also contains the following illustration of clause (e) of Section 114 : 'A judicial act the regularity of which is in question was performed under exceptional circumstances.' The rule embodied in this illustration is a particular application of the maxim 'Omnia praesumuntur' rightly and regularly done. This presumption is provided in Section 114 of the Indian Evidence Act which also contains the following illustration of clause (e) of Section 114 : 'A judicial act the regularity of which is in question was performed under exceptional circumstances.' The rule embodied in this illustration is a particular application of the maxim 'Omnia praesumuntur' rightly and regularly done. Best says 'The true principle intended to be conveyed by the above maxim seems to be that there is a general disposition in courts of justice to uphold official, judicial and other acts rather than to render them in operative and with this view, where there is general evidence of acts having been legally and regularly done, to dispose with proof of circumstances strictly speaking essential to the validity of those acts, and by which they were probably accompanied in most instances although in others the assumption rests solely on the ground of public policy. It should, however, be made abundantly clear that the presumption cannot be raised in face of clear evidence to the contrary. Thus, for instance, if there had been an affidavit in the court of Additional Commissioner to the effect that the statement was not recorded in the presence of the presiding officer, it would not be possible to have recourse to this presumption. As far as we know, not a single instance has come to out notice in which such allegations may have been made in an affidavit or an attempt may have been made to prove such an allegation. There is a mass of case law on the point that official acts should be presumed to have been regularly performed. In the case of Panna Lal Biniraj v. Union of Indian, A.I.R. 1957 S.C. 397 and Joseph Thomas v. State of Kerala, A.I.R. 1958 Kerala 33, it has been held by the Supreme Court and the Kerala High Court that there is a presumption that public officers will discharge their duties honestly and in accordance with rules of law. In the Kerala case, this presumption was not rebutted. In the case of Macchi Raju Mahalakkshmmamma v. Surya Narayana Vishunubhota, A.I.R. 1955 And. Pra 192, it has been held clearly that the court must assume in the absence of proof to the contrary that official acts are done in accordance with rules and regulations governing them. 30. In the Kerala case, this presumption was not rebutted. In the case of Macchi Raju Mahalakkshmmamma v. Surya Narayana Vishunubhota, A.I.R. 1955 And. Pra 192, it has been held clearly that the court must assume in the absence of proof to the contrary that official acts are done in accordance with rules and regulations governing them. 30. In interpreting these rules, it would also be important to examine the context in which these rules have been made applicable to the proceeding under Section 218 and 219 of the U.P. Land Revenue Act. It is to be noted Land Revenue Act. It is to be noted that Rule 14 of the same order has not been made applicable to the proceedings under these two Sections of the U.P. Land Revenue Rule 14 reads as follows :- "Judge unable to made memorandum to record reasons of the inability- (1) Where the judge is unable to make a memorandum as required by the order, he shall cause the reasons of such inability to the recorded and shall cause the memorandum to be made in writing from his dictation in open court." In case, it has been the intention of the legislature that a memorandum should also be recorded when evidence was taken down in accordance with Rules 4 and 5 of Order XVIII C.P.C. there does not appear to be any justification why Rule 14 should also not have been made applicable to revisions under the U.P. Land Revenue Act. The inference is clear that the legislature did not intend or contemplate that in proceedings in revisions under the U.P. Land Revenue Act there was any need either to record a memorandum or a certificate, to the effect that the depositions had been recorded in the presence and under the personal direction and superintendence of the Judge. 31. In the end we may consider the case law which is directly on Rules 4 and 5 of Order XVIII C.P.C. As observed earlier, there are only a few cases on this point. Learned counsel for the revisionist relied on the cases of Panna Devi v. Yad Ram, 1974 R.D. 37 and Rajendrapal Singh v. Gafoor Khan, 1975 R.D. 273. We have already noted that the view taken by the Single Members of the Board is hardly correct. Learned counsel for the revisionist relied on the cases of Panna Devi v. Yad Ram, 1974 R.D. 37 and Rajendrapal Singh v. Gafoor Khan, 1975 R.D. 273. We have already noted that the view taken by the Single Members of the Board is hardly correct. The other case cited by the learned counsel is the case of Ethiraj v. K. Gopalaswamy Chetty, A.I.R. 1972 Mad. 219. In this case, it appears that the headnote is misleading. Referring to Order XVIII Rule 5 of the Code of Civil Procedure, the headnote mentions that if the provisions of this rule are not complied with while recording the evidence, the decision in the case is liable to be set aside. It is only a perusal of the full judgment which will clarify as to what the Hon'ble Judge of the Madras High Court meant by holding what consequences will by holding what consequences will follow if the provisions of Order XVIII Rule 5 Code of Civil Procedure had not been complied with. His Lordship has observed : 'The provisions of Order XVIII Rule 5 C.P.C. should have been complied with and that evidence should have been recorded completely instead of taking merely a memorandum of evidence'. Now the provisions of Rule 13 of Order XVIII C.P.C. apply to the memorandum of evidence in unappealable cases. This rule is to the following effect :- Memorandum of evidence in unappealable cases.-In cases in which appeal is not allowed, it shall not be appeal is not allowed, it shall not be necessary to take down the evidence of the witness 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." In other words, the Code of Civil Procedure envisages that in unappealable cases only a memorandum of the substance of the depositions shall be written and signed by the Judge. According to Rule 5 of Order XVIII, the evidence has to be recorded in full and no memorandum to take the place of complete evidence which includes examination, cross-examination and re-examination of witness. Obviously, the case of Madras High Court, referred to above , is quite distinguishable from the issue, referred to us, for an answer. 32. According to Rule 5 of Order XVIII, the evidence has to be recorded in full and no memorandum to take the place of complete evidence which includes examination, cross-examination and re-examination of witness. Obviously, the case of Madras High Court, referred to above , is quite distinguishable from the issue, referred to us, for an answer. 32. The learned counsel for the revisionist also draw our attention to the case of Taka Singh v. Jeet Singh, 1964 A.L.J. 70. It has been held in this case that Section 141 C.P.C. applies to all proceedings of civil nature. This proposition cannot be disputed. It is, however, significant that even this section of the C.P.C. provides that 'the procedure provided in this Code in regard t o suits shall be followed, as far as it can be made applicable 'in all proceeding in court of Civil jurisdiction. The use of the words' as far it can be made applicable' is very significant and accounts for the fact that only rules 4 to 6 and 8 to 10 of Order XVIII have been made applicable to all proceedings of judicial nature under U.P. Land Revenue Act. 1901, in accordance with rule 59 of the Revenue Court Manual. This rule very explicitly excludes the applicability of Rules 13 and 14 of Order XVIII to proceedings under the U.P. Land Revenue Act. 33. The learned counsels for the opposite party have relied on the case of Kiran Singh v. Chaman Paswan, 1964 A.L.J. 70. We find that this case is not very relevant for the purpose of the issue referred to us for an answer. However their main reliance is one the case of Development Authority v. Siv Charan, A.I.R. 1954 S.C. 349 in which a much more serious irregularity was committed than in the revision under the U.P. Land Revenue Act giving rise to the instant reference. In the Delhi case, the witnesses' depositions were not signed by Judge at all. His Lordships of the Delhi High court before whom this case came up observed that the omission to sign the depositions is a defect or irregularity in the proceedings. But the merits of the case or the jurisdiction of the Court are not affect by the omission. A decision of a Court cannot be upset merely for technical and immaterial defects. But the merits of the case or the jurisdiction of the Court are not affect by the omission. A decision of a Court cannot be upset merely for technical and immaterial defects. Non-compliance of Rule 5 of Order XVIII does not destroy the validity of the whole proceeding. Rule 5 is rule of procedure. Rules of procedure are made to subserve the ends of justice and not to defeat them. Section 9 aims to prevent technicalities from overcoming the ends of justice.' 34. In view of the above discussion our answers to the two questions referred to us are as follows- (1) According to Rule 4 of Order XVIII a certificate mentioning that the statements were recorded in the presence of the presiding officer and under his direction in open court is no necessary. This question is, thus, answered in the negative. (2) Rule 5 of Order XVIII C.P.C. applies to revisions under the U.P. Land Revenue Act as well as to appealable cases. Although this rule provides as to how evidence shall be taken in appealable cases yet in view of the fact that the revisions under the U.P. Land Revenue Act are very much like appeals in a much as the revisional courts can also work into the facts, as in appeals, we find that Rule 5 of Order XVIII applies to appealable cases as also to cases in which revision lies under the U.P. Land Revenue Act. Our answer to this question is thus, in the affirmative. 35. Although we have answered the question, as above, yet we would like all courts subordinate to the Board of Revenue to exercise utmost care and caution in recording evidence before them. We feel that just as the words 'read over, heard and confirmed' are superscribed over the thumb impression of the illiterate witnesses and the words 'read and confirmed' are inscribed over the signatures of the educated witnesses in the same way the courts will do well to make the following endorsement before signing the statements of witnesses recorded in their presence :- "Deposition recorded and signed by the witness before me." 36. We feel that once this practice is adopted there will be absolutely no lache, loophole or lacunae left which could be exploited by the lawyers to take advantage of what is really a technical irregularity in the recording of evidence. 37. We feel that once this practice is adopted there will be absolutely no lache, loophole or lacunae left which could be exploited by the lawyers to take advantage of what is really a technical irregularity in the recording of evidence. 37. Let a copy of this order be sent to the court concerned for the decision of reference No. 100 (L.R.) of 1970-7, Jalaun in the light of the answers given by us.