Fida Husain v. Gaon Sabha — 1982 DIGILAW 811 (ALL)

JUDGMENT R.P. Gupta, M.(Judl.) - These two revisions are filed against the order dated July 12, 1976 passed by the Addl. Commissioner, Bareilly by which order the Addl. Commissioner allowed both the appeals filed by Gaon Sabha and State Government and remanded the cases to the trial court, as according to him the statements of witnesses Khoob Chand and Fida Husain were not signed by the Presiding officer who also did not sign the certificate written below the statements to the effect that they were recorded on the dictation of the Presiding Officer. According to him, by it, the judgment of the Lower Court became illegal. 2. The learned counsel for the Revisionists argued that under Order XVIII Rule 5 C.P.C. it was not necessary for the Presiding Officer to sign the statement of the witness and to give certificate to the effect that the statement was recorded on the dictation of the Presiding Officer. According to him in any case it was a mere irregularity on which ground the decree passed by the Lower Court could not have been set aside and the case could not have been set aside and the case could have been remanded to the trial court, in view of the provisions of Section 90 C.P.C. He further pointed out that the statement in questions were signed by the witness concerned. It was no where alleged that the statements were not correctly recovered or they were not recorded under the personal direction and superintence or under the dictation of the Presiding Officer. This point was not raised by the Goan Sabha and State Government either before the trial court at the time of argument or in the ground of appeal. He relied on a Division Bench case of the Board of Revenue reported in 1976 R.D. 339. The learned D.G.C. (R.) argued that the certificate and the signature of the Presiding Officer on the statement was necessarily. He relied on two decisions of the Board of Revenue reported in 1978 R.D. 246 and 1979 A.W.C. 68 (Rev.). 3. A perusal of the shows that the statement of D.W. 1 Khoob Chand was recorded on December 24, 1971 and the certificate 'recorded on my dictation' was endorsed on the statement but the statement and certificate were not signed by the Presiding Officer. The thumb-impression of the witness is there on the statement. 3. A perusal of the shows that the statement of D.W. 1 Khoob Chand was recorded on December 24, 1971 and the certificate 'recorded on my dictation' was endorsed on the statement but the statement and certificate were not signed by the Presiding Officer. The thumb-impression of the witness is there on the statement. The Statement of the D.W. 2 Jamil Ahmad. was also recorded on December 24, 1971 which was signed by Jamil Ahmad. Signatures of the Presiding Officer are absent on the statement and the certificate endorsed on it. There is no witness as D.W. 2 Fida Husain. Non-compliance of the provisions of Order XVIII Rule 5 C.P.C. was never alleged before the trial court. In the ground of appeal also no such ground was taken by the appellate State Government and Gaon Sabha. During the argument the learned counsel for the appellant had drawn the attention of the Addl. Commissioner and pointed out the absence of the signatures of the Presiding Officer. By this omission the Addl. Commissioner held that the judgment of the Lower Court was illegal and remanded the case. 4. The question involved in the revisions is whether under Order XXIII Rule 5 C.P.C. it is necessary for the Presiding Officer to sign the statement of the witness and to give certificate that the statement was recorded on his dictation, the absence of which is illegality or a mere irregularity. 5. Rule 5 of Order XVIII of the Code of Civil Procedure, 1908, before its amendment by Act 104 of 1976, was as follows:- Rule 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 the language of the Court, by or in the presence 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, when 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. 6. The Rule was amended by the Code of Civil Procedure (Amendment) Act (104 of 1976) as follow :- Rule 5. 6. The Rule was amended by the Code of Civil Procedure (Amendment) Act (104 of 1976) as follow :- Rule 5. How evidence shall be taken in appealable cases:- In cases in which an appeal is allowed, the evidence of each witness shall be:- (a) taken down in the language of the Court- (i) in writing by or in the presence and under the personal direction and superintendence of the Judge or, (ii) from the dictation of the Judge directly on a typewriter, or (b) if the Judge, for reasons to be recorded so directs, recorded mechanically in the language of the court in the presence of the Judge. 7. A perusal of the amended Rule 5 of the Order XVIII C.P.C. shows that the requirement of signature of the Presiding Officer was dispensed with by the Parliament by the Code of Civil Procedure (Amendment) Act 104 of 1976. It is also not provided in it that the Presiding Officer shall give certificate that the statement was recorded on his dictation. 8. On the other hand, a perusal of Section 275 of the Code of Criminal Procedure 1973 shows that the Parliament specifically made provisions of the certificate and witness recorded in criminal cases. Section 275 of the Code of Criminal Procedure 1973 is as follows :- Section 275. (1) In all warrant-cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open court or, where he is unable to do so, owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) Where the Magistrate causes the evidence to the taken down, he shall record a certificate that the evidence could not be taken down by himself for the reasons referred to in sub-section (1). (3) Such evidence shall ordinarily be taken down in the form of a narrative but the Magistrate may, in his discretion take down, or cause to be taken down, any part of such evidence in the form of question and answer. (4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record. 9. (4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record. 9. A comparison of the provisions of Order XVIII Rule 5 C.P.C. and Section 275 Cr.P.C. shows that while a certificate is required under Section 275(2) of Cr.P.C. and the signature of the Magistrate is required under Section 275(4) Cr.P.C. such things are not required under Rule 5 of the Order XVIII of the Code of Civil Procedure. 10. A criminal case where the signatures of Magistrate were absent on the statements of the witness and the certificate endorsed on the statements, came before the Hon'ble Allahabad High Court, which decisions is reported in Sita Ram Sahu v. State of U.P. 1981 A.W.C. 272. It was held that Section 275(4) of Cr.P.C. is not mandatory in the sense that non-compliance with it would nullify the evidence of the witness provided there is no doubt about authenticity of the record. The omission to sign was held merely as an irregularity. 11. The Division Bench of the Board of Revenue in Murli Singh v. Saraswati 1976 R.D. 339 considered unamended provisions of Rule 4 and 5 of Order XVIII of the Code of Civil Procedure in detail. It is a well considered judgment where it was held that these rules were not mandatory and were purely procedural in nature. This Division Bench case is still a good law. By the Amending Act 104 of 1976 even the requirement of the signature of the Presiding Officer was specifically dispensed with by the Legislature. 12. In Daudayal v. Om Prakash 1978 R.D. 246 Sri P.C. Saxena. Member Board of Revenue considered this Division Bench case of the Board and though he agreed with the observations of the Division Bench that the provisions were not mandatory but still he justified the remand order of the Addl. Commissioner on the ground that the original file did not provide any evidence that the statement had been so recorded. The provisions of Section 114(e) of the Indian Evidence Act under which it is to be presumed that Judicial and Official Acts have been regularly performed, were probably not brought to the notice of the learned Member. Commissioner on the ground that the original file did not provide any evidence that the statement had been so recorded. The provisions of Section 114(e) of the Indian Evidence Act under which it is to be presumed that Judicial and Official Acts have been regularly performed, were probably not brought to the notice of the learned Member. In the present case before me the order sheet dated December 24, 1971 was signed by the Presiding Officer and it was also mentioned in it that the statements of defendants witnesses Khoob Chand and Jamil Ahmad were recorded. This case is of no help to the Opposite Party. 13. In Shiv Karan Singh v. Gaon Sabha A.I.R. 1962 S.C. 83 Sri I.B. Singh, Member, Board of Revenue, held that the Lower Court acted with material irregularity amounting to illegality, in not recording the statement of the witness himself and in not giving the required certificate. The Division Bench case of the Board reported in 1976 R.D. 339 was probably not brought to the notice of the learned Member. This ruling is not only against the decision of the Division Bench but is also against the provisions of the Act as under Rule 4 and 5 of Order XVIII C.P.C. there are no such requirements. In all fairness, it must be said that the learned Member did not refer to any law or ruling and had not laid down any principle of law. The doctrine of 'Per Incuriam' which has been approved by the Supreme Court in Jai Sri v. Raj Diwan A.I.R 1962 S.C. 83 is applicable. Salmond has stated that "A precedent is not binding if it was tendered in ignorance of a statue.... As examples of 'per incuriam' judgments Salmond cites a case where the court knew a statute but did not refer to the precise terms of the statue, as well as to a case where the court knew of the statute but failed to appreciate the relevance to the matter in hand. (Salmond on Jurisprudence 12th Edition page 150). This ruling given by Sri I.B. Singh Member is of no help to the O.P. and is not a good law. 14. The result is that neither the certificate that the statement of witness was recorded at the dictation of the Presiding Officer, nor the signature of the Presiding Officer on the statement of the witness, are mandatory. This ruling given by Sri I.B. Singh Member is of no help to the O.P. and is not a good law. 14. The result is that neither the certificate that the statement of witness was recorded at the dictation of the Presiding Officer, nor the signature of the Presiding Officer on the statement of the witness, are mandatory. The absence of these things, at best are mere irregularity due to which no decree is to be reversed or varied nor any case is to be remanded in appeal as provided in Section 99 C.P.C. 15. Both the revisions are allowed, the order passed by the Addl. Commissioner, Bareilly on July 12, 1976 is set aside and both the cases are remanded to the Addl. Commissioner, Bareilly with the direction that he should re-admit both the appeals Nos. 103 and 104 of 1972 to their original numbers and should decide them afresh on merit after hearing the parties.