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2009 DIGILAW 804 (CAL)

Suvra Dalui v. Netaji Subhas Open University

2009-11-16

KALYAN JYOTI SENGUPTA, Tapas Kumar Giri

body2009
JUDGMENT 1. IN Re: C.A.N. No. 8577 of 2009 Dr. Patra, learned Counsel appearing for the State consents to hearing of the appeal itself dispensing with all formalities. We feel that the matter of this nature should be dealt with finally treating the appeal as on day's list. 2. AFFIDAVIT filed is kept on record. This appeal is against a judgment and order of the Hon'ble Trial Judge dated 30th July, 2009 whereby and whereunder the relief asked for by the appellant/writ petitioner was not granted. 3. FOR the time being this Court is concerned not with the merit of the matter but with the procedure under which the matter was disposed of. We appreciate the fairness of the Hon'ble Trial Judge, as recorded in the earlier order of His Lordship, dated 29th July, 2009. 4. FROM record it appears undisputedly following facts: The petitioner's writ petition was taken up for hearing by the Hon'ble Trial Judge on 27th July, 2009 and upon hearing both the parties His Lordship had decided the matter in one way. However, after disposal of the same, it was reflected in the mind of the Hon'ble Trial Judge that the matter ought to have been decided in a manner different from what was done on 27th July, 2009. We appreciate this reasonably flexible mind of the Hon'ble Trial Judge. Perhaps on the first date after disposing of the matter His Lordship felt that the matter was not decided correctly as such His Lordship's conscience did not permit to retain the judgment and order, which was passed on the first day. Therefore, His Lordship brought the matter in the list once again after disposal on 27th July, 2009 on 29th July, 2009. In presence of the learned Lawyers of the parties His Lordship recorded that the order passed on 27th July, 2009 was asked not to be transcribed, not to speak of being signed, His Lordship then decided the matter should be heard de novo. 5. THEREAFTER on 30th July, 2009 the matter was placed for fresh hearing and no submission was made albeit according to Dr. Patra, chance was given to offer. The Hon'ble Trial Judge taking note of the submission advanced on earlier occasion passed the impugned judgment and order. This time the judgment was transcribed unlike the previous occasion. 6. DR. 5. THEREAFTER on 30th July, 2009 the matter was placed for fresh hearing and no submission was made albeit according to Dr. Patra, chance was given to offer. The Hon'ble Trial Judge taking note of the submission advanced on earlier occasion passed the impugned judgment and order. This time the judgment was transcribed unlike the previous occasion. 6. DR. Patra while supporting this impugned judgment and order says that by virtue of Order 20 Rule 3 of the Code of Civil Procedure, the Hon'ble Trial Judge had jurisdiction to hear out the matter afresh even if the matter was disposed of on 27th July, 2009 finally and it was possible as it was neither transcribed nor signed. According to him, if the provision of Order 20 Rule 3 is read carefully, the Hon'ble Trial Judge before putting his signature can pass any order as he does not lose seisin over the matter. We, therefore, quote the language of Order 20 Rule 3 in the following manner: "3. Judgment to be signed.- The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by section 152 or on review." Undisputedly by virtue of Rule 53 of Writ Rules framed by this Court the provision of Order 20 of Code of Civil Procedure has been made applicable. 7. MR. Lahiri, learned Counsel appearing on behalf of the appellant submits that once the matter is disposed of finally either way in open Court, the learned Trial Judge thereafter has nothing to do except to sign it and this judgment cannot be touched otherwise than the method provided in Rule 3 itself. He further submits drawing our attention to the records that what order was passed previously was not transcribed. According to him, once the order is passed finally and dictated in open Court, this must be transcribed and made part of the record and the Hon'ble Trial Judge has to sign it. Non-transcription of the order by officer of the Court cannot afford ground to rehear under any circumstances. 8. AFTER considering the submission and also perusing the records we find that there is force in the submission of Mr. Non-transcription of the order by officer of the Court cannot afford ground to rehear under any circumstances. 8. AFTER considering the submission and also perusing the records we find that there is force in the submission of Mr. Lahiri that Order 20 Rule 3 has made it clear that once a judgment is pronounced in open Court, it must be transcribed and signed by the Hon'ble Trial Judge. This legal requirement that is mandatory in form, can be found in Order 20 Rule 1 sub-rules (1) and (3) of the Civil Procedure Code which is as follows: "1. Judgment when pronounced.-(1) 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 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: .......... 3. The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is specially empowered by the High Court in this behalf: Provided that, whether the judgment is pronounced by dictation in open Court, the transcript of the judgment so pronounced shall, after making such correction therein as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record." Thus legislative intendment leaves no manner of doubt whatever is pronounced in open Court has to be transcribed and signed and the same must remain in record. 9. TAKING advantage of non-transcription the learned Judge cannot change the judgment altogether otherwise than the method provided in Order 20 Rule 3 and in case of fraud practised in Court and inherent lack of jurisdiction under inherent power of the Civil Court. 10. IT seems to us the learned Trial Judge presumably being inspired though not specially mentioned, with the judgment of Full Bench of Allahabad High Court reported in AIR 1966 All. 221 adopted procedure to remake the judgment. 10. IT seems to us the learned Trial Judge presumably being inspired though not specially mentioned, with the judgment of Full Bench of Allahabad High Court reported in AIR 1966 All. 221 adopted procedure to remake the judgment. We have carefully examined this judgment of Full Bench of Allahabad High Court and noticed that the said Court has framed specific rule in 1952 with regard to preparing, making, delivering and signing judgments as contemplated in Order 20 of the Code and the same permit the learned Judge to change the judgment before signing. While taking note of the said rule the Hon'ble Supreme Court in the case of Surendra Singha and Ors., reported in AIR 1954 SC 194 , held as statement of law before signing the judgment pronounced in open Court immediately after hearing can be altered, changed in its entirety. We are of the view that the said pronouncement of the Supreme Court lost its force after amendment of Code of Civil Procedure by Amending Act No. 104 of 1976 with insertion of amongst other sub-rule (3) with proviso. In this Court for its Appellate Side or for subordinate Court no separate rule is framed, hence above rule of the Code is to be applied. We, however, clarify that provision of Order 20 of the Civil Procedure Code has no application by virtue of Order 49 Rule 3(5) of the Code in the exercise of ordinary or extraordinary original civil jurisdiction by this Court. 11. WE are thus unable to accept the contention of Dr. Patra that before the judgment is signed, Court has ample power to recall earlier order and to rehear the matter. WE think that if such an interpretation is given then there will be serious consequences and this will erode confidence, credibility and predictability of the justice delivery system in the mind of the public at large. Whatever may be the weighty and justified reason which had transpired in the mind later on, cannot be ground for recalling of the earlier judgment pronounced in open Court. Judgement and order can only be recalled after the same is transcribed and made part of the record and signed under established procedure. Once the matter was heard out in open Court and judgment was dictated instantly after hearing the Hon'ble Trial Judge had no option other than to sign it after having got the same transcribed. 12. Judgement and order can only be recalled after the same is transcribed and made part of the record and signed under established procedure. Once the matter was heard out in open Court and judgment was dictated instantly after hearing the Hon'ble Trial Judge had no option other than to sign it after having got the same transcribed. 12. A point has been taken on subsequent date that writ petitioner had participated in the hearing. We think that when law does not permit rehearing of the matter otherwise than the method provided in the law, consent of the parties cannot confer jurisdiction on the Hon'ble Trial Judge to rehear the matter after the same was disposed of finally. We, therefore, are of the view that the decision making process of the Hon'ble Trial Judge while passing the subsequent order is not supported by the law prescribed. Thus, we are unable to accept the judgment. We, therefore, on that ground alone, set aside the order of the Hon'ble Trial Judge and now the matter be heard afresh since affidavits are complete in this matter. Both the appeal and the applications are, thus, disposed of. 13. THERE will be no order as to costs. 14. URGENT xerox certified copy of this order shall be supplied to the applicants, if applied for. Appeals disposed of.