ORDER
Harish Chander, President
1. M/s. Triveni Sheet Glass Works Limited, have filed an appeal being aggrieved from the order passed by the Collector of Central Excise, Allahabad. The said appeal was presented in the Registry on the 16th day of December, 1991. A stay application duly supported with an affidavit was also presented in the Registry on the same date. The stay application had come up for hearing before the Tribunal on the 29th day of January, 1992. The said application was allowed unconditionally by the Tribunal. Para numbers 2 and 3 which are the operative part of the order are reproduced below :-
“2. We have also heard the learned JDR Shri A.K. Singhal for the Revenue. We are of the view that the applicants have a strong prima facie case, so far as the question of issuing the show cause notice, proposing to review the order of the Assistant Collector is concerned in view of the Tribunal’s judgment in the case of Military Dairy Farm. Accordingly, we allow the stay petition unconditionally.
3. Having regard to the very high stakes involved, we also order the case be listed for early hearing and we fix the case for hearing on 13th April 1992. No other case should be fixed on the day, excepting short matters.”
2. The respondent being not satisfied with the stay order had filed a Miscellaneous application for modification of the Stay Order No. 24/92-A, dated 29-1-1992 in the Registry on the 7th day of April 1992 which is registered, as Miscellaneous E. 574/92-A. A perusal of the operative part of the stay order No. 24/92-A dated 29-1-1992 which has been reproduced above, shows that the stay was granted unconditionally and the Bench had ordered the listing of the hearing of the appeal on merits on 13-4-1992. On 13-4-1992 when the hearing of the appeal came up for hearing on merits, the Miscellaneous application filed by the respondent (Revenue) on the 7th day of April 1992 was taken up, for hearing. A Bench consisting of Shri P.C. Jain, Member (Technical) and Ms. S.V. Maruthi, Member (Judicial) had first heard the Miscellaneous application and had thereafter heard the appeal on merits too. The matter had got part-heard and Shri V. Sridharan the learned advocate was continung his arguments. Thereafter, the matter was adjourned to 24th, 25th and 26th June, 1992 at 2.00 PM. The order sheet of 13th April 1992 is reproduced below :-
"Heard detailed arguments on the Miscellaneous application filed by the department. After hearing both sides, we reject the application. Detailed order would follow. Parties have been directed to proceed with the arguments on : appeal.
Sd./- P.C. Jain, 13-4-1992
Sd./- Ms. S.V. Maruthi, 13-4-1992.
"Shri V. Sridharan, learned advocate is continuing his arguments. Learned CDR is yet to commence her arguments. To be treated as part-heard. C.F = 24, 25, 26-6-1992 (three days) at 2.00 PM.
Sd./- P.C. Jain, 13-4-1992
Sd./- Ms. S. V. Maruthi, 13-4-1992.
A perusal of the order sheet entry shows that after hearing both the sides on the Miscellaneous application filed by the Department, the same was rejected by the Bench and detailed order was to follow as the parties were directed by the Bench to proceed with the arguments on the appeal. Shri V. Sridharan, the learned advocate was continuing his arguments and the matter was treated as part-heard and thereafter was adjourned to 24th, 25th and 26th June, 1992. Thereafter on 10th June, 1992 the Registry had placed the file before Shri P.C. Jain, Member (Technical), who was the Presiding Member. On the Registry’s notings, Shri P.C. Jain on 11th June, 1992 had sent the file to Ms. S. V. Maruthi and she had disposed of the file on the 16th June, 1992. For the proper appreciation of the facts, the notings of the Registry as well as the remarks of the respective Members are reproduced below :-
“The above matter alongwith a Misc. application filed by the Department (placed at Flag ‘A’) was heard on 13-4-1992 and the orders passed by the Bench on the order sheet of that date are placed at flag ‘B’.
2. A Misc. application as now filed by the CDR regarding issue of order is placed at flag TUC’ for kind perusal and orders of Shri P.C. Jain, M.(T) please”.
Sd./- Asst. Registrar, 10-6-1992.
Shri P.C. Jain, M (Tech)
“There is no need for separate orders on Miscellaneous Application heard on 13-4-1992. It would be taken care of in the final order. No reply to the CDR is called for. M (J)-Ms. S.V. Maruthi may also please see.
Sd./- P.C. Jain, 11-6-1992
M (J-SVM)
“May we discuss”
Sd./- S.V. Maruthi, 16-6-1992.
Thereafter there were hearings on merits on 24th June, 1992, 25th June, 1992 and 26th June, 1992 at 2.00 PM. For the proper appreciation of the facts, the order sheet notings dated 24th June, 25th June and 26th June, 1992 are reproduced below :-
“24-6-1992 – Shri V. Sridharan, learned advocate is on his legs. c.f. = 25-6-1992
(at 2.00 PM) part-heard
Sd./- P.C. Jain, 24-6-1992
Sd./- S.V. Maruthi, 24-6-1992
“25-6-1992 – Shri V. Sridharan, learned advocate is continuing with his
arguments. Part-heard, c.f. = 26-6-1992.
Sd./- P.C. Jain, 25-6-1992
Sd./- S.V. Maruthi, 25-6-1992
“26-6-1992 – Shri V. Sridharan, learned advocate has completed his arguments.
Mrs. Vijay Zutshi has just commenced her arguments, part-heard,
c.f. = 24, 26 and 27-8-1992 (at 2.00 PM).
Sd./- P.C. Jain, 26-6-1992
Sd./- S.V. Maruthi, 26-6-1992.
The learned CDR vide her application dated 24-8-1992 received in the Registry on the same date has requested for adjournment. Para No. 3 of the said application is reproduced below :-
“3. Appeal No. E. 5133/91-A was fixed for hearing on three days within the same week so that some amount of continuity can be ensured. Since this is a heavy matter, arguing for about 2 /2 hours on 27th of August, 1992 may not prove useful, I pray that the case may be adjourned to some other consecutive dates which are also convenient to the advocate for the appellants Shri V. Sridharan. A copy of this application is also being sent to Shri V. Sridharan, Advocate for the appellants”.
The matter was adjourned to 7th, 8th and 9th December 1992 at 2.00 PM. Thereafter, Ms. S.V. Maruthi, Member (Judicial) was elevated as Judge of the Hon’ble Andhra Pradesh High Court and she had resigned from the post of Member on 2-11-1992 and had left the Tribunal and as such she had ceased to be a member of the Tribunal. Thereafter, the file was placed before the President and the President vide order dated 26-11-1992 had released the matter from the part-heard list. The order passed by the President is extracted below :-
“Since, Ms. S.V. Maruthi has left the Tribunal on her elevation as Judge of A.P. High Court, the matter is released from part-heard. The same will be heard by the regular Bench as constituted on the date of hearing”.
The Registry vide telegram dated the 27th November, 1992 had informed the parties for the rehearing of the matter on the 27th January, 1993 at 10.15 AM. In between the respondent-Collector of Central Excise had written a letter to the Registrar dated 4/5-1-1993 received in the Registry on the 9th day of January 1993. In the said letter it was mentioned that “However, so far no formal orders have been communicated to this Collectorate even after repeated reminders sent to the CDR, CEGAT, New Delhi”. It was further requested that the CEGAT may pass the order and in case no order has been passed there was a request by the respondent-Collector for rehearing of the Miscellaneous application. Thereafter on 20-1-1993 the respondent had presented another Miscellaneous application which was registered as Miscellaneous application No. 55/93-A dated 20-1-1993. In this Miscellaneous application, there was a prayer for rehearing of the Miscellaneous application for modification of the stay order No. 24/92-A dated 29-1-1992. On 27-1-1993 the matter had came up for hearing and when the Bench was about to proceed with the matter, the learned CDR had drew the attention to the Miscellaneous application No. 55/93 presented in the Registry on 20-1-1993. When Shri Sridharan stated that they were not aware of the fresh Miscellaneous application filed by the Revenue and that he has to prepare for himself for the hearing of the Miscellaneous application, Smt. Vijay Zutshi, the learned CDR did not object for adjournment and the Bench had adjourned the matter to 29-3-1993 most reluctantly. When the matter was again, called for hearing on 29-3-1993, Smt. Vijay Zutshi the learned CDR had appeared for the Revenue and Shri V. Sridharan, the learned advocate, for the appellants. Shri Sridharan wanted adjournment on the ground that he was not having a copy of the Miscellaneous application. A copy of the Miscellaneous application was given by Smt. Zutshi in open Court. The Bench pointed out that the Miscellaneous application was not supported with an affidavit and directed to make good the defect. The matter was then adjourned to 30-4-1993. On 30-4-1993 the matter was adjourned on the request of the CDR and the respondent wanted two months time and the matter was adjourned to 13-8-1993. As 13-8-1993 was declared as a holiday, it was taken up on 14-8-1993 when there was a direction by the Bench to the CDR to produce copy of the Revenue’s Writ Petition filed before the Hon’ble Allahabad High Court and the matter was adjourned to 26-8-1993. On 10-8-1993 the respondent had filed a letter with a copy of the Hon’ble Allahabad High Court’s Order dated 19-7-1993 and the Hon’ble Allahabad High Court had passed the following order :-
“We have heard learned counsel for the petitioner. In view of the fact that the review application is still pending before the Tribunal and has not yet been decided, we decline to interfere with the order dated 29th January, 1992. It was then contended that although a considerable period of time has elapsed yet the Tribunal is neither passing any order on’the review application nor deciding the appeal itself on merit which is causing great loss and harassment to the petitioner. Seeing the facts and circumstances of the case we dispose of this petition by observing that the Tribunal shall take steps to dispose of the petitioner’s application, if possible by the next date of hearing or within another two months”.
As directed by the Bench the Revenue had filed a copy of the Writ Petition along with other annexures in the Registry on 23-8-1993. The appellants had also filed an affidavit of Shri V. Somasundaram, Manager-Taxation on 25-8-1993 with a covering letter.
3. When the matter came up for hearing on 26-8-1993, Shri V. Sridharan had appeared on behalf of the appellants and Smt. Vijay Zutshi, the learned. CDR, for the respondent. Shri V. Sridharan had filed a copy of the Miscellaneous application filed by the appellants in Civil Miscellaneous Petition No. 1122/93 and on which the Hon’ble Allahabad High Court had passed an order dated 25-8-1993 and had modified its earlier order dated 19-7-1993. For proper appreciation of the facts, the order passed by the Hon’ble Allahabad High Courts is reproduced below :-
“At present we do not like to enter into this controversy suffice it to say that we leave it to the Tribunal to decide for itself as to whether any further orders are required to be made on the application dated 7-4-1992. If in the opinion of the Tribunal a detailed order is required to be made, it shall proceed accordingly and if it decides not to pass any separate order in view of its order sheet dated 11-6-1992, it may proceed to decide the appeal itself expeditiously and in accordance with law. To this extent our judgment and order dated 19-7-1993 stands modified”.
A perusal of the order dated 25-8-1993 shows that the Hon’ble Allahabad High Court had modified its order dated 19-7-1993. The Hon’ble High Court had left it to the discretion of the Tribunal whether any further orders are required to be made on the application dated 7-4-1992 for the modification of the stay order. The Hon’ble High Court had further observed that if in the opinion of the Tribunal a detailed order is required to be made, it shall proceed accordingly and if it decides not to pass any separate order in view of its order sheet dated 11-6-1992, it may proceed with the hearing of the appeal expeditiously and in accordance with law. The Bench after looking into the same felt that judicial, propriety requires that both the sides should address the arguments on the subject as to whether the order dated 13-4-1992 is a valid order in the eyes of law or not, and desired both the sides to address arguments. Smt. V. Zutshi addressed arguments on the subject and concluded the same. The matter was adjourned to 2-9-1993. On 2-9-1993 Shri V. Sridharan the learned advocate addressed arguments in reply to the arguments addressed by Smt. V. Zutshi, the learned CDR. Smt. V. Zutshi addressed arguments in rejoinder. Both the sides addressed arguments on the limited issue i.e. whether the order dated 13-4-1992 is a valid order in the eyes of law.
4. Smt. V. Zutshi, the learned CDR, pleaded that the order dated 13-4-1992 was not an order in finality as the detailed order had not been issued. She pleaded that since there is no detailed order and as such there is no finality of the order. There is also no communication of the order passed if any passed by the Tribunal. She drew the attention of the Bench to the note sheet entry dated 11-6-1992 recorded by the Member (Technical) Shri PC. Jain and also the order sheet entry dated 16-6-1992 by Ms. S.V. Maruthi, Member (Judicial). She referred to Rule 26 of the CEGAT (Procedure) Rules. In support of her arguments, she referred to the following decisions :-
(1) Basti Sugar Mills Co. Ltd. v. CCE reported in 1990 (47) E.L.T. 404 (Tribunal) Paras 16,17,18 and 22.
(2) Arunodaya Mills Ltd. etc. v. CC, Ahmedabad reported in 1990 (37) E.L.T. 459 (Tribunal)
(3) Vasudeo Vishivanath Sara v. New Education Institute and Ors. reported in AIR 1986 S.C. 2105, Para 14 at page 2108.
(4) M/s. Mahabir Prasad Santosh Kumar v. State of U.P. and Ors. reported in AIR 1970 SC 1302.
She pleaded that in view of these decisions the earlier order dated 13-4-1992 is not an order in the eyes of law and as such the Miscellaneous application filed by the respondent should be reheard.
5. Shri V. Sridharan, the learned advocate, who has appeared on behalf of the assessee pleaded that in the present matter even after 13-4-1992 there was’ hearing on merits and thereafter on other different dates there has been hearing on merits and as such by implication both the Members have agreed that there was no necessity of issuing of a detailed order and as such there had been hearing on merits and the entries made on the note sheet put up by the Registry do not carry any value. The learned advocate pleaded that the ratio of the decision in the case of Basti Sugar Mills Co. Ltd has no relevance in this case as in that case the hearing was reopened. He also drew the attention of the Bench to the provision of Section 35C(4) of Central Excises and Salt Act, 1944. Shri Sridharan cited the following decisions :-
(1) Tara Chand Khatri v. Municipal Corporation of Delhi and Ors. reported in AIR 1977 S.C. 567, paras 19 and 24.
(2) Gopal Paper and Board Mills v. UOI and Ors. reported in 1981 (8) E.L.T. 97 (Del), paras 15 and 16.
(3) Kifayatidlah v. The Executive Officer, Municipal Board, Bhopal reported in AIR 1956 Bhopal 7, para 6.
Shri Sridharan referred to Order XX, Rule 3 of the Code of Civil Procedure which relates to the judgment/order. Shri Sridharan argued that the Revenue’s application dated 7-4-1992 has been duly disposed of by the Tribunal and there is no necessity to rehear the same and a detailed order was not necessary. He pleaded for the rejection of the Miscellaneous application filed by the Revenue.
6. Smt. Vijay Zutshi, the learned CDR, addressed arguments in rejoinder and pleaded that no detailed order was passed on 13-4-1992 and there is no service of any detailed order and as such no appeal lies on the note sheet order. She argued that verbal rejection is no order in the eyes of law. She again referred to Basti Sugar Mills case which she had cited earlier. She also referred to a judgment of Hon’ble Supreme Court in the case of Travancore Rayons Limited v. The Union of India and Ors. reported in 1978 (2) E.L.T. (J 378), where the Hon’ble Supreme Court had held that the speaking orders are very necessary. She also referred to a judgment of Mohan Meakin Breweries Ltd. v. State of Tamil Nadu reported in 1979 (4) E.L.T. (J 646) where the Hon’ble Madras High Court had held that under Article 141 of the Constitution, the law decided by the Supreme Court shall be binding on all the courts within the territory of India. She pleaded that the Technical Member had recorded on 11-6-1992 on the note sheet that there is no need of passing a separate order on Miscellaneous application heard on 13-4-1992, it would be taken care of in the final order, and as such no reply to the CDR is called for. Member (Judicial) Ms. S.V. Maruthi may also please see. She pleaded that on 16-6-1992 Ms. S.V. Maruthi records “may we discuss”. She pleaded that since both the Members have not concurred and as such there is no valid order in the eyes of law. She argued that judgment cited by the learned advocate do not help him as the facts are different. Decision of Gopal Paper and Board Mills reported in 1981 (8) E.L.T. 97 (Del.) does not help him as it deals with the Government order passed by Government of India or the Board.
7. We have heard both the sides and have gone through the facts and circumstances of the case. The issue before us is whether the order, dated 13-4-1992 is a valid order in the eyes of law. For the proper appreciation of the facts of the legal position the order sheet entry, dated 13-4-1992 is reproduced below :-
“Heard detailed arguments on the Miscellaneous application filed by the department. After hearing both sides, we reject the application. Detailed order would follow. Parties have been directed to proceed with the arguments on appeal”.
Sd/- P.C.Jain, 13-4-1992
Sd/- Ms. S.V. Maruthi, 13-4-1992
"Shri V. Sridharan, learned advocate is continuing his arguments. Learned CDR is yet to commence her arguments. To be treated as part-heard C.F. = 24, 25, 26-6-1992 (three days) at 2.00 P.M."
Sd/- PC. Jain, 13-4-1992
Sd/- Ms. S.V. Maruthi, 13-4-1992"
The note sheet entry of the Registry dated 10-6-1992 and the notes of the Members are reproduced below :-
"The above matter alongwith a Misc. application filed by the Department (placed at flag 'A') was heard on 13-4-1992 and the orders passed by the Bench on the order sheet of that date are placed at flag 'B'.
2. A Misc. application as now filed by the CDR regarding issue of order is placed at flag 'PUC' for kind perusal and orders of Shri P.C. Jain, M (T) please"
Sd/- Asst. Registrar 10-6-1992.
Shri P.C. Jain M (Tech.)
"There is no need for separate orders on Miscellaneous application heard on . 13-4-1992. It would be taken care of in the final order. No reply to the CDR is called for. M (J) - Ms. S.V. Maruthi may also please see.
Sd/- P.C.Jain 11-6-1992. M G-SVM)
"May we discuss"
Sd/- S.V. Maruthi 16-6-1992"
A perusal of the both the order sheet and note sheet shows that both have to be read together and cannot be read in isolation. The narration of the facts also shows that after 16-6-1992 there had been hearing on 24, 25 and 26-6-1992. The learned advocate Shri V. Sridharan has pleaded that by implication the Member (J) had agreed with the view of Member (T) Shri P.C. Jain. For coming to the correct conclusion, Order XX Rule I, 2 and 3 from the Code of Civil Procedure are reproduced below :-
“1. S. 198. (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, on some future day; and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders :
Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within fifteen days from the date on which the hearing of the case was concluded but, where it is not practicable so to do, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond thirty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders :
Provided further that, where a judgment is not pronounced within thirty days from the date on which the hearing of the case was concluded, the Court shall record the reasons for such delay and shall fix a future day on which the judgment will be pronounced and due notice of the day so fixed shall be given to the parties or their pleaders.
(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment, shall be made available for the perusal of the parties or the pleaders immediately after the judgment is pronounced.
(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, where 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.
2. [Section 199] A Judge shall pronounce a judgment written but not pronounced by his predecessor.
3. [Section 202] 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”.
Order XX Rule 1, 2 and 3 deal with the judgment when pronounced and power, to pronounce judgment written by predecessor and 3 relates to the signing of the judgments. The learned CDR has placed heavy reliance in the case of Basti Sugar Mills Co. Ltd. v. C.C.E. reported in 1990 (47) E.L.T. 404 (Tribunal). Relevant extracts (Paras 16 to 26) from the judgment is reproduced below :-
* * * * *
This judgment was pronounced in the open Court and thereafter the hearing was reopened and a fresh order was passed. The learned CDR had referred to a judgment of the Hon’ble Supreme Court in the case of Vasudeo Vishwanath Saraf v. New Education Institute and Ors. reported in AIR 1986 S.C. 2105 wherein the Hon’ble Supreme Court in para 14 had held as under :
“14. It is a cardinal principle of rule of law which governs our policy that the Court including Writ Court is required to record reasons while disposing of a writ petition in order to enable the litigants more particularly the aggrieved party to know the reasons which weighed with the mind of the Court in determining the questions of facts and law raised in the writ petition or in the action brought. This is imperative for the fair and equitable administration of justice. More so when there is a statutory provision for appeal to the higher Court in the hierarchy of Courts in order to enable the superior Court or the Appellate Court to know or to be apprised of the reasons in deciding cases or applications affecting rights of parties is also a mandatory requirement to be fulfilled in consonance with the principles of natural justice. It is no answer at all to this legal position that for the purpose of expeditious disposal of cases a laconic order like (‘dismissed’ or ‘rejected’ will be made without passing a reasoned or a speaking order. It is not, however, necessary that the order disposing of a writ petition or of a cause must be a lengthy one recording in detail all the reasons that played in the mind of the Court in coming to the decision. What is imperative is that the order must in a nutshell record the relevant reasons which were taken into consideration by the Court in coming to is final conclusions and in disposing of the petition or the cause by making the order, thereby enabling both the parties seeking justice as well as the superior Court where an appeal lies to know the mind of the Court as well as the reasons for its finding on questions of law and facts in deciding the said petition or cause. In other words fair play and justice demands that justice must not only be done but must seem to have been done”.
8. The learned CDR has referred to a decision of the Tribunal in the case of Arunodaya Mills Ltd. etc. v. CC, Ahmedabad reported 1988 (37) E.L.T. 459 (Tri.). Relevant paras 8 to 17 from the judgment are extracted below :-
* * * * *
9. The learned CDR has cited another decision of the Hon’ble Supreme Court in the case of Mahabir Prasad Santosh Kumar v. State of U.P. and Ors. reported in AIR 1970 SC 1302. In para 5 the Hon’ble Supreme Court has held as under :-
“The case discloses a disturbing state of affairs. The authorities have disclosed by their conduct a reckless disregard of the rights of the appellants. The order passed by the District Magistrate cancelling the licences was quasi-judicial; it could be made only on a consideration of the charges and the explanation given by the appellants. That necessarily implied that the District Magistrate had to give some reasons why he held the charges proved, and the explanation unacceptable. When the matter was carried in appeal, the State Government could atleast have acted with some awareness that citizens have rights which must be protected against possible arbitrary action by subordinate officials. The District Magistrate is not made the final authority in cancelling the licence. The appellants had a right to carry on their business and as they held a licence to carry on their business they could be deprived of their right by an executive order supported by good and adequate reasons. The relevant rules granted a right of appeal to the State Government against that order, and that implied that the aggrieved party must have an opportunity to convince the State Government that the order passed by the District Magistrate was erroneous. That right could be effectively exercised if reasons be recorded by the District Magistrate and supplied to the aggrieved party. If the aggrieved party is not supplied the reasons, the right to appeal is an empty formality.”
10. The Privy Council in the case of Firm Gokal Chand Jagan Nath v. Firm Nand Ram Das Atma Ram reported in AIR 1938 Privy Council 292 has observed as under:-
“Rule 81 of 0.41 does not say that if the 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 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 not affecting the merits of the case or the jurisdiction of the Court and is no ground for setting aside the decrees”.
11. The Hon’ble Patna High Court in the case of Hanna Estelle Dear Christian v. Colin Mac Gregor Dear Murray reported in AIR 1933 Patna 135 has held as under :-
“That your petitioners have come to a settlement of all matters in question in these suits in terms of their letter to Mr. K.M.M. Leslie, dated 6th December, 1929, a copy of which is annexed hereto, and that your petitioners desire that these suits be recorded as compromised on the terms and conditions contained in the said letter. Your petitioners therefore pray that a compromise be recorded accordingly, And your petitioners shall every pray.
Sd/- M.M.D. Murray Sd/- H.E. Christian.
As already stated one of the decree holders, Miss Effie Murray is not a party to the compromise because her claim was already satisfied. If the Court was to dispose of the suit in terms of the compromise as is contended for by the Court below, the order that the Court should have passed was that the compromise be recorded and the suit disposed of as compromised on the terms and. .,. conditions contained in the said letter (of Mr. Leslie).
At the very outset it must be stated that a mere order in the order sheet recording “that the case and suit be dismissed in terms of compromise” is not the disposal of a suit under the Civil Procedure Code which can only terminate in accordance with the rules set forth in 0.20, R 1, which says :
The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or some future day, of which due notice shall be given to the parties or their pleaders.
It also requires that a decree shall be prepared and bear the date on which judgment was pronounced. The word “decree” to my mind, is often misunderstood. The order in the decree might give some relief to the plaintiff or might disallow the relief claimed altogether but the Court has to prepare a decree whether the claim is allowed or dismissed. In General Rules and Circular Orders Civil, Vol. 1, Chap. 5, R. 11, exception is made in this respect and in certain cases no decree need be prepared”.
12. The Hon’ble Himachal Pradesh High Court in the case of High Court on its Own Motion v. Sunder Singh and Ors. reported in AIR 1986 Himachal Pradesh 47 had held as under :-
“6. It would thus appear that the draft judgment, which is found placed on the record of the appellate court, since it was not duly signed by the learned Additional District Judge, still retained the character of a judgment to which finality was not attached. O. 41 R. 31 of the Civil P.C. inter alia provides that the judgment of the appellate court shall be in writing and shall, at the time when it is pronounced, be signed and dated by the Judge. As observed by R.S. Pathak, C J., in Ramji Das’s case, the requirement of signing a judgment is not a mere formality. It is an act which makes the Judgment prefect and complete. Mere pronouncement of the judgment, assuming that there was such a pronouncement, therefore, has not the effect of converting the draft judgment into the judgment of the court to which finality was attached.
7. True it is that some corrections are found made in ink in the first few pages of the draft judgment. Even assuming that the learned Additional District Judge had performed such an act, that would not convert the draft judgment into a final judgment. It is the signature, which the learned Additional District Judge was required to append at the appropriate place in the judgment, which would render it final and complete and not the corrections made in a few pages of the draft judgment. It cannot be overlooked in this connection that the corrections are found made only in a few pages of the draft judgment and that the remaining pages of the judgment do not have any corrections. It may be because the learned Additional District Judge might have found that no such corrections were necessary or may be because he had no time to go through the remaining pages of the draft judgment. Be that as it may, the indication from the circumstance of not appending the signature to the judgment under such circumstances clearly is that even the learned Additional District Judge regarded the transcript merely as a draft judgment and that he considered it no better than that.
8. Equally true it is that a decree formally drawn up was duly signed by the learned Additional District Judge on the same day on which he is recorded to have pronounced the judgment. Even this circumstance does not detract from the conclusion earlier reached. A decree, even if formally drawn up and duly signed, cannot have any force in the eye of law unless it is founded on a judgment which is complete and final. Under O. 41, R. 35 Sub-rule (2) of the Civil P.C. the decree is required to contain a clear specification of the relief granted or adjudication made. When there is no judgment to which finality could be attached, no relief nor any adjudication could be regarded as having been granted or made.
9. For the foregoing reasons, in my opinion, the appeal preferred by the first and second respondents before the lower appellate Court will require to be treated as not having been disposed of in accordance with law. The decree formally drawn up and duly signed will have to be treated as having no effect in the eye of law. The appeal will require to be re-admitted on the file of the District Court and heard and decided afresh. Order accordingly.”
13. Hon’ble Supreme Court in the case of Surendra Singh and Ors. v. State of Uttar Pradesh reported in AIR 1954 S.C. 194 had held as under :-
“10. In our opinion, a judgment within the meaning of these sections is the final decision of the Court intimated to the parties and to the world at large by formal “pronouncement” or “delivery” in open Court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there : That can neither be blurred or left to inference and conjecture nor can it be vague. All the rest – the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter – can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.
11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery as that is not of the essence, except to say that it must be done in a judicial way in open Court. But, however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the “judgment”.
12. Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of ‘locus paeniteritiae’, and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full fledged judgment and become operative. It follows that the Judge who “delivers” the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he .is alive and in a position to change his mind but takes no steps to arrest delivery.
But one cannot assume that he would not have changed his mind if he is no longer in a position to do so. A Judge’s responsibility is heavy and when a man’s life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture; also, a question of public policy is involved. As we have indicated, it is frequently the practice to send a draft, sometimes a signed draft. To a brother Judge who also heard the case. This may be merely for his information or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment.
13. Views similar to this were expressed by a Full Bench of the Calcutta High Court consisting of nine Judges in the year 1867 in – ‘Mahomed Akil v. Asadunnissa Bibee’, 9 WR 1 (FB) (B). In that case, three of the seven Judges who constituted the Bench handed in signed judgments to the Registrar of the Court. Before the judgment could be delivered, two of them retired and one died. A Full Bench of nine Judges was convened to consider whether the drafts of those three Judges could be accepted as Judgments of the Court. Seton-Kerr, J. who had heard the case along with them, said –
“Certainly as far as I can recollect, they appeared to have fully made up their minds on a subject, which they had very seriously considered, and on which they had had abundant opportunities of forming a final determination. I am, however, not prepared to say that they might not on further consideration have changed their opinions …” (P. 13).
Despite this, all nine Judges were unanimous in holding that those three opinions could not be regarded as judgments in the formal sense of the term. In our opinion, Jackson, J. expressed the law. aright in these words :
“I have however always understood that it was necessary in strict practice that judgments should be delivered and pronounced in open Court. Clearly, we are met today ‘for the first and only time’ to give ‘judgment’ in these appeals : and it appears to me, beyond question, that Judges who have died or have retired from the Court cannot join in the judgment which is to be delivered today, and express their dissent from it.” (P. 5).
Peacock, C.J. pointed out at page 30 –
“The mere arguments and expressions of opinion of individual Judges who compose a Court, are not judgments. A judgment in the eye of the law is the final decision of the whole Court. It is not because there are nine Judges that there are nine judgments. When each of the several Judges of whom a simple Court is composed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. If it were otherwise, and if each of the memoranda sent in on the present occasion were a judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for.”
We do not agree with everything which fell from the learned Chief Justice and the other Judges in that case but, in our opinion, the passages given above embody the true rule and succinctly explain the reasons for it.
14. As soon as the judgment is delivered, that becomes the operative pronouncement of the Court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.
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14. In the matter before us, Ms. S.V. Maruthi, Member (Judicial) has left the Tribunal on 2-11-1992. Even if it is assumed that a detailed order could be issued later, since she has resigned the Membership of the Tribunal due to her elevation as a Judge of the Hon’ble Andhra Pradesh High Court, she is in no position to sign the order. We have duly considered the judgments cited by the learned advocate which do not help him. In view of the above discussion, we hold that the Order dated 13-4-1992 is not a valid order in the eyes of law. Accordingly, we order that the Miscellaneous application filed by the Revenue will be heard on merits on 15th November, 1993.