Ram Nath v. Board of Revenue — 1984 DIGILAW 944 (ALL)

JUDGMENT : B.L. Yadav, J. This is a writ petition under Article 226 of the Constitution of India filed against the orders passed by the Judicial Officer, Additional Commissioner and the Board of Revenue, U.P., Allahabad in a suit u/s 224-B/209 of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act), filed by the Petitioners against Respondent Nos. 4, 5 and 6. The learned Counsel for the Petitioners was heard in support of the writ petition and the petition was ordered to be dismissed summarily on 30-8-84. However, the reasons were to follow later on. 2. The Petitioners filed a suit alleging that they were Sirdars along with Mohan and the land was ancestral and the other Defendants had no concern with the land in dispute. It was alleged that the Petitioners were the exclusive tenure holders of the land in dispute. In the alternative it was prayed that Hari Lal, opposite party No. 4 may be ejected. 3. The suit was contested by Hari Lal, Respondent No. 4 denying the plaint allegations and alleging that he was the grandson of Mohan and as such he was entitled to be recorded as co-tenant along with the Plaintiffs, the Petitioners. The trial court by its judgment and order dated 29-1-71 dismissed the suit filed by the Petitioners and the appeal before the Additional Commissioner was also dismissed. The second appeal filed before the Board of Revenue also met the same fate. These are the judgments and orders against which the present writ petition has been filed by the Petitioners. A review application, however, was also filed and the same was dismissed on 29-3-1984 (Annexure 5' to the writ petition). The order on the review application has also been impugned. 4. It has been urged by the learned Counsel for the Petitioners that the judgment of the Board of Revenue was no judgment in the eyes of law as it was not a judgment signed, dated and pronounced by the Board of Revenue in open court, inasmuch as the Board of Revenue had heard the counsel for the parties on 12-1-84 and thereafter 19-1-84 was the date fixed for delivery of judgment. But on that date the judgment could not be delivered and the Court passed an order that the judgment would be pronounced on some further date. But on that date the judgment could not be delivered and the Court passed an order that the judgment would be pronounced on some further date. The judgment was, however, delivered on 7-2-84, about which no notice were given to the parties. The learned Counsel for the Petitioner referred to the decisions in Sheobodh Ram Teli Vs. Shiva Prasad and Others, AIR 1925 All 293 , and in Surendra Singh and Others Vs. The State of Uttar Pradesh, AIR 1954 SC 194 5. In Kharak Singh v. Lachhan Singh (supra) a Division Bench of this Court has an occasion to consider the scope of Order 20 Rule 1 CPC The facts of that case were that a reference under Rule 17 of the Kumaun Rules was made to this Court in a suit for pre-emption brought by the Plaintiff in the Court of the Assistant Commissioner, Kumaun who heard the case on 24-8-1921 and reserved his judgment. On 14th February, 1922 he signed, dated and delivered his judgment in the absence of the parties or their pleaders and without previous notice to them and he directed that the order passed should be communicated to the parties through patwari. His order was upheld by the Deputy Commissioner and substantially by the Commissioner. Lateron a reference was made to this Court whether the judgment of the Assistant Commissioner dated 14-2-1922 was a validly pronounced judgment within the meaning of Order XX Rules 1 and 3 of Schedule I of the Code of Civil Procedure. It is pertinent to recollect the provision of Section 33 of the CPC which requires that after the case has been heard, the Court shall pronounce the judgment and as on such judgment a decree shall follow. Order 20 Rule 1 CPC provides that after the case had been heard, the Court shall pronounce the judgment in open court either at once or on some future date of which due notice shall be given to the parties or their pleaders. Section 140 of the CPC requires that all orders and notice served or given to any person under the provisions of this Code shall be in writing. But in that case no motive was given to the parties or their pleaders. The judgment was signed and dated in the absence of the parties without any such motive having previously been given. But in that case no motive was given to the parties or their pleaders. The judgment was signed and dated in the absence of the parties without any such motive having previously been given. But this Court took the view that although the pronouncement of the judgment may be irregular but the judgment and decree delivered by the Court had to be complied with unless the judgment and decrees were set aside and it was held that the parties were bound by the decree and cannot as long as the decree stands, be allowed to go behind or question its terms. In this way it was held by a Division Bench of this Court that even though pronouncement of the judgment in open court may be irregular but that would not render the judgment or decree illegal so as to question its validity by either of the parties. Hence this case was of no assistance to the Petitioners. 6. The facts of the case reported in Surrendra Singh v. State of U.P. (supra) wore entirely different. That was a criminal case. All the Appellants were convicted for an offence u/s 302 and other different Sections of the Indian Penal Code. Surrendra Singh, Appellant No. 1, was convicted for the offence of murder and was sentenced to death. All the Appellants appealed to the High Court which was heard by a Division Bench. The judgment was reserved. But before it could be delivered Hon'ble Bhargava, J. was transferred to Allahabad from Lucknow Bench and he dictated the judgment purporting on his own behalf and on behalf of his brother Hon'ble Kidwai, J. He then sent his judgment to Hon'ble Kidwai, J. at Lucknow and he died before the judgment could be delivered. So he had no opportunity to change his mind or to communicate the same on the date when the judgment was actually delivered. On the facts of that case this Court he Id that as the other Judge bad died on the date of the pronouncement of the judgment in open court, hence he had no opportunity to express his mind on that date. It was accordingly held that the judgment as delivered under the relevant provisions of the Code of Criminal Procedure was not a valid judgment. The Supreme Court allowed the appeal and directed the High Court to decide the appeal afresh. It was accordingly held that the judgment as delivered under the relevant provisions of the Code of Criminal Procedure was not a valid judgment. The Supreme Court allowed the appeal and directed the High Court to decide the appeal afresh. Hence it was abundantly clear that the facts of this case are entirely different and had no analogy with the facts of the present case. 7. In this connection it is relevant to set out the provisions of Rule 181 of the U.P. Revenue Court Manual which is as under: 181. Form of order of judgment:--In all cases it shall not be necessary for the Board when confirming the order or decree appealed against to do more than record an order dismissing the appeal and confirming the order or decree of the Court against whose order or decree the appeal is made. In all other cases the appellate court shall record a judgment in compliance with the requirement of Rule 31 Order 41 of the CPC but the judgment of the Board need not be dated, signed and pronounced in open Court. 8. However, there was an amendment in 1976 and the substance of the amended paragraph 181 reads as follows: 181. Form of order of judgment:-- It shall not be necessary for the Board when confirming an order or decrre appealed against to do more than record an order dismissing the appeal and confirming the order or decree of the Court against whose order or decree the appeal is made. In all other cases the Appellate Court shall record a judgment in compliance with the requirements of Rule 31 Order XL of the Code of Civil Procedure. The judgment shall be signed, dated and pronounced in open court. 9. It appears that the Board was under the impression of the rule applicable before 1976, that the judgment need not be signed, dated and pronounced in open court. But after the amendment in 1976, it became obligatory on the part of the Board of Revenue to pronounce the judgment in open Court and to sign and date it then and there in presence of the parties or their counsel. There can accordingly be no exception that the Board should pronounce, sign and date the judgment in the second appeal in open Court as the Legislature has intended very clearly after the amendment of 1976. 10. There can accordingly be no exception that the Board should pronounce, sign and date the judgment in the second appeal in open Court as the Legislature has intended very clearly after the amendment of 1976. 10. By virtue of Section 341 of the Act, the provisions of the Code of Civil Procedure, 1908, as amended from time to time, have been made applicable to the procedure prescribed for the suits to be tried in accordance with the provisions of the Act. Section 99 of the Code so far as it is relevant for the purposes of the present case, is being set out below: 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially Varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or jurisdiction of the Court: Provided that nothing in this Section shall apply to non-joinder of a necessary party. 11. In view of the aforesaid provisions it is clear that any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or jurisdiction of the Court cannot be made a ground for reversing the decree or substantially varying the same. In the instant case I am satisfied that the merits of the case has not been affected by not signing, pronouncing and dating the judgment in open Court by the Board of Revenue. The merits of the Second Appeal was only to the extent whether Respondent No. 4 was the grandson of Mohan or not and it was concurrently held by the trial court, by the Additional Commissioner and by the Board of Revenue that Respondent No. 4 was the grandson of Mohan and hence he was entitled to succeed to the share of Mohan, Respondent No. 4. As said earlier, I am of the view that the Board of Revenue should have signed, dated and pronounced the judgment in open court. However, even if the same was not done, it did not affect the merit of the Second Appeal nor the jurisdiction of the Court. As said earlier, I am of the view that the Board of Revenue should have signed, dated and pronounced the judgment in open court. However, even if the same was not done, it did not affect the merit of the Second Appeal nor the jurisdiction of the Court. The Board of Revenue was conscious about the jurisdiction to be exercised in the Second Appeal and it has correctly dismissed the appeal as it has been concluded by finding of fact. 12. Taking into account the provisions of Section 99 of the Code of Civil Procedure, I am of the view that even though the judgment was not signed, dated and pronounced by the Board, nevertheless it did not affect the merit of the case. Even in the petition it has not been alleged in any paragraph as to what was the prejudice caused to the Petitioners when the judgment was not signed, dated and pronounced in open court. Hence no foundation has been laid in the writ petition as to what was the prejudice caused to the Petitioner. The view that I am taking finds support from the following cases: (i) AIR 1938 292 (Privy Council) (ii) Thakur Singh v. lihaironlal AIR 1956 Raj. 113 and (iii) Ala Bux v. Khidir Ahmad AIR 1919 Cal. 799. 13. In the case of Firm Gokal Chand Jagannath v. Firm Nandramdas Alma Ram (supra) before the Privy Council it was urged that the judgment of the High Court appealed from was not a valid judgment because it failed to comply with Order XLl Rule 31 Code of Civil Procedure. The facts of that case shorn of details as far as they are relevant for the decision of this point alone were to the effect that the hearing in the High Court of Lahore was before two Judges Harrison and Agha Haider, JJ. and the judgment was actually delivered by the former Judge, the latter agreeing. The judgment was delivered on 22nd February 1933, but Harrison, J. went on leave before signing the judgment which was signed by Agha Haider, the Deputy Registrar appending a note that Harrison, J. had gone on leave before signing the judgment he delivered. and the judgment was actually delivered by the former Judge, the latter agreeing. The judgment was delivered on 22nd February 1933, but Harrison, J. went on leave before signing the judgment which was signed by Agha Haider, the Deputy Registrar appending a note that Harrison, J. had gone on leave before signing the judgment he delivered. The provisions of Order 41 Rule 31 require that the judgment of the appellate court shall be in writing and shall state various matters and " shall at the time it is pronounced be signed and dated by the Judge or by the Judges concurring therein." The Privy Council took the view that the other Judge might not have signed the judgment so prepared but nevertheless it was just an irregularity and was curable by the provisions of Section 99 of the Code of Civil Procedure. The relevant portion of the judgment in Firm Gokal Chand ' Jagannath (supra) contain interpretation of the provisions of Order 41 Rule 31 CPC are set out here: 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. 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 Sections 99 and 108, Code of Civil Procedure, Section 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. ...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. 14. In the case of Thakur Singh v. Bhairon Lal (supra) it was held while interpreting Order 20 Rule 1 CPC that a technical breach of Rule 1 of Order 20 would not make the judgment altogether void. Rather at the most it could be said that if a party files an appeal or an application for review on some valid ground beyond the period of limitation prescribed, it might be considered a sufficient reason for the condonation of delay u/s 5, Limitation Act that the party could not know about the judgment on the date it was delivered because no motive of it was given to him. In this view of the matter it was held that as the notice of the delivery of the judgment was not given to the parties, hence either party in case feeling aggrieved wanted to file an appeal and alleged that the date of the delivery of judgment could not be known to me, it would constitute a sufficient ground for condoning the delay. Beyond that this irregularity cannot be made a ground for rehersal of the decree and the judgment so pronounced. 15. In Ala Bux v. Khidir Ahmad AIR 1919 Cal. 799 judgment was written and signed by one Judge who heard the case but it was written in open court by his colleague and the question arose that the Judge who heard the case did not deliver the same in open court. Rather some other Judge delivered the same. 15. In Ala Bux v. Khidir Ahmad AIR 1919 Cal. 799 judgment was written and signed by one Judge who heard the case but it was written in open court by his colleague and the question arose that the Judge who heard the case did not deliver the same in open court. Rather some other Judge delivered the same. Hence can it be said to be a valid judgment in view of Order 20 Rule 2 CPC and what was the scope of Section 99 CPC and applicability of the same. The relevant portion of the conclusion is set out below: ...It is said that this procedure (delivery of judgment by another Judge when actually a case was heard by some other Judge) is unauthorized by the terms of the Civil Procedure Code. Even if it is, Section 99 clearly covers a case like this. It is a mere irregularity not affecting the merits of the case and does not harm to either party in the suit. It is absurd to direct the learned Judge to read this judgment in open court again which has been read by his colleague. 16. In view of the discussions made above, the writ petition lacks merits And is dismissed summarily.