JUDGMENT
Shivaprakash, J
1. The above Appeal was heard by a Division Bench on 25.2.1994 consisting of two Judges of this Court who have since ceased to be Judges of this Court consequent to their transfer to other High Courts. The note dated 25.2.1994 in the order-sheet written by the Court Officer reads thus:
xxx xxx xxx xxx xxx xxx Sri N. Kumar for appellants. Sri Radhesh Prabhu for T.S. Pai for respondents. Heard disposed of vide order dictated. Sd/-" 2. The Judgment dictated on 25.2.1994 is transcribed and the transcript is found in the records. However, the same is not signed by the learned Judges.
3. In the circumstances, a Memo dated 11.7.1994 was filed in Court on 12.7.1994 by the Counsel for the respondent stating that on 25.2.1994 after hearing the learned Counsel the Court “pronounced the judgment in open court on 25th February, 1994 by delivering the judgment by dictation to the Stenographer. Thus the decision was made known to the Advocates for the parties immediately.” Therefore it is stated in the Memo that “the formalities such as signing and dating the judgment and decree may be effected in accordance with High Court Rules and the Code of Civil Procedure, 1908.”
4. Sri N. Kumar, learned Counsel for appellants and Sri Radhesh Prabhu, learned Counsel for respondent, submitted that both of them were heard by the Division Bench on 25.2.1994 and the Judgment was dictated in full immediately thereafter.
5. The Question that arises for our Consideration is whether the Appeal requires to be heard again by another Bench, if not, who should authenticate the transcript of the Judgment which remains unsigned since the two learned Judges are no more Judges of this Court to obtain their signatures.
6. The Rules of the High Court of Karnataka Rules, 1959 which have relevance to the question at issue is contained in Chapter XVI of the said Rules, Rules 5 to 8 are reproduced below:
“5. After a case has been heard, judgment may be pronounced either at once or on some future date after notice to the parties or their Advocates which notice shall ordinarily be given by putting up the case on the Daily Cause List for judgment.”
“6. (1) Where a case is heard by two or more Judges and judgment is reserved, the judgment or judgments prepared by them may be pronounced by any of the Judges who heard the case.
(2) If no such Judge be present such judgment or judgments may be pronounced, by such other Judge as the Chief Justice may nominate for the purpose. This sub-rule shall also apply to the judgment of a Judge sitting alone.”
“7………………………………………………………………..
“8………………………………………………………………..”
7. Rule 6(2) is not strictly applicable to the instant case since the judgment was not reserved but was pronounced at once on 25.2.1994 itself.
8. A Division Bench of this Court in ASSISTANT COMMISSIONER v. CHANDASAHEB MOHADDINSAB MUJAWAR , while considering the provisions of Order 20 Rule 1 of C.P.C., has opined that:
“the judgment becomes a part of the record only after it is signed by the Judges, The dictation to a Stenographer does not amount to a judgment within the meaning of Order 20 Rule 1 C.P.C., and does not amount to the pronouncement of the judgment. That dictation after being transcribed by the Stenographer and after being corrected and even after being altered if necessary and after being signed by the Judges, would amount to a judgment and then alone it would amount to a pronouncement of the judgement………………………………………….
Therefore, the dictation made to a Stenographer in the open Court and the transcript prepared by the Stenographer are the properties of the Judges and they do not form part of the record until the judgment is signed by the Judges.”
9. In FIRM GOKAL CHAND v. FIRM NAND RAM AIR 1938 Privy Council 292 a similar question arose for consideration. The Privy Council while considering the provisions of Order 41 Rule 31 C.P.C., has expressed its opinion thus:
“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.”
10. In SURENDRA SINGH v. STATE OF UTTAR PRADESH , the Supreme Court while considering the provisions of Sections 369 and 537 of the Criminal Procedure Code has ruled that the said Section does much the same thing on the Criminal Side as Sections 99 and 108 do under the Code of Civil Procedure. It is necessary to
state the facts in that case as narrated by the Supreme Court to appreciate the question raised and the Ruling given:
“(2) All three appealed to the High Court at Allahabad
(Lucknow Bench) and the appeal was heard on 11.12.1952 by
Kidwai and Bhargava JJ, Judgment was reserved. Before it could
be delivered Bhargava J. was transferred to Allahabad. While
there he dictated a “judgment” purporting to do so on behalf of
himself and his brother Judge, that is to say, it purported to be a
joint judgment: he used the pronoun “we” and not “I”. He signed
every page of the “judgment” as well as at the end but did not
date it. He then sent this to Kidwai J. at Lucknow. He died on
24.12.1952 before the “judgment” was delivered. After the death,
on 5.1.1953 his brother Judge Kidwai J. purported to deliver the
“judgment” of the Court. He signed it and dated it. The date he
placed on it was 5.1.1953. Bhargava J’s signature was still there
and anyone reading the judgment and not knowing the facts
would conclude that Bhargava J. was a party to the delivery on
5.1.1953. The appeal was dismissed and the sentence of death
was confirmed. The question is whether this “judgment” could be
validly delivered after the death of one of the two Judges who
heard the appeal.”
11. On the aforestated facts the Supreme Court, after referring to the Decision of the Privy Council cited above, ruled thus:
“(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 nor 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 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 paenitentiae’ 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 dawn upon him before the delivery of judgment.”
12. In VINOD KUMAR SINGH v. BANARAS HINDU UNIVERSITY , the Supreme Court had to consider this question in respect of a Judgment pronounced in open Court but not signed. After quoting extensively the observations of Bose J. in Surendra Singh v. State of Uttar Pradesh, referred above, the Court has ruled thus:
“7. But, while the Court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. When a judgment is pronounced in open Court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow.
8. We have extensively extracted from what Bose J. spoke in this judgment to impress upon everyone that pronouncement of a judgment in court whether immediately after the hearing or after reserving the same to be delivered later should ordinarily be considered as the final act of the court with reference to the case. Bose J. emphasised the feature that as soon as the judgment is delivered that becomes the operative pronouncement of the court. That would mean that the judgment to be operative does not await signing thereof by the Court. There may be exceptions to the rules, for instance, soon after the judgment is dictated in open Court, a feature which had not been placed for consideration of the Court is brought to its notice by counsel of any of the parties or the Court discovers some new facts from the record. In such a case the court may give direction that the judgment which has just been delivered would not be effective and the case shall be further heard. There may also be cases -though their number would be few and far between – where when the judgment is placed for signature the court notices a feature which should have been taken into account. In such a situation the matter may be placed for further consideration upon notice to the parties. If the judgment delivered is intended not to be operative, good reasons should be given.
9. Ordinarily judgment is not delivered till the hearing is complete by listening to submissions of counsel and perusal of records and a definite view is reached by the court in regard to the conclusion. Once that stage is reached and the court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstances or a review is asked for and is granted. When the judgment is pronounced, parties present in the Court know the conclusion in the matter and often on the basis of such pronouncement, they proceed to conduct their affairs, If what is pronounced in court is not acted upon, certainly litigants would be prejudiced. Confidence of the litigants in the judicial process would be shaken. A judgment pronounced in open court should be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case. In the instant matter. We find that there is no material at all to show as to what led the Division Bench which had pronounced the judgment in open Court not to authenticate the same by signing it. In such a situation the judgment delivered has to be taken as final and the writ petition should not have been placed for fresh hearing. The subsequent order dismissing the writ petition was not available to be made once it is held that the writ petition stood disposed of by the judgment of the Division Bench on 28.7.1986.”
13. There is one more Decision cited by the learned Counsel to which we should refer. In BASANTA DEVI v. ABDUL SATTAR , the judgment was dictated to Stenographer in open Court in the presence
of the parties but the Judge died before singing the typed transcript. Rule 88(2) of the Rajasthan High Court Rules provided that where the Judge, by whom the Judgment or Order was dictated in open Court, is not available subsequently on account of illness, retirement or any other cause, the transcript may be signed by the Chief Justice, seal affixed and a note to the above effect added by the Registrar to the transcript at the end. Though the Rule did not provide as to what should happen if the Judge concerned were to die, the Court held that the words “any other cause” must be read in ejusdem generis with the words “not available” which include death.
14. In the case on hand, there is no dispute that a considered Judgment was dictated in open Court on 25.2.1994 after hearing both the Counsel, The order-sheet discloses that the matter was heard and “disposed of.”
15. The view expressed by the Division Bench of this Court in Assistant Commissioner v. Chandrasaheb Mohaddinsab, that “the judgment becomes a part of the record only after it is signed by the Judges and that dictation to a Stenographer does not amount to a judgment within the meaning of Order 20 Rule 1 C.P.C. and does not amount to the pronouncement of the judgment” is not in accord with the Ruling of the Supreme Court in Vinod Kumar Singh v. Benares Hindu University.
16. Since in the instant case the Judgment was dictated/pronounced in open Court, it has to be acted upon as there are “no exceptional feature” which is evident from the record and therefore the same has to be taken as final and there is no question of rehearing the same by another Bench.
17. There is no provision in the High Court of Karnataka Rules, 1959 providing for authentication of unsigned Judgment of another Judge dictated/pronounced in open Court. As already noticed by us Rule 6 in Chapter XVI of the said Rules is applicable to Judgments reserved but not pronounced but prepared, in which situation the Rule provides that the Chief Justice may nominate any other Judge for pronouncing the same and has to be signed as required by the Civil Procedure Code. In the absence of any Rule to meet the present situation the only course open, in our view, is to adapt the provisions of Rule 6(2) in Chapter XVI of the Karnataka High Court Rules, 1959, even to cases where judgments are dictated/pronounced in open Court. Accordingly, we direct that the records be placed before the Hon’ble Chief Justice to pass orders in terms of Rule 6(2) of Chapter XVI of the High Court of Karnataka Rules, 1959. A note be appended by the Registrar stating the circumstances under which another Judge was nominated for the purpose of signing the Judgment thus authenticating the same. The other requirements as provided in the Rules have to be complied with.
18. The relevant Rules in the High Court of Karnataka Rules in this regard may require to be amended.