In this view of the matter, I hold that a successor Judge is entitled to sign the judgment on behalf of the Judge who pronounced the same in open Court, Mr. K. R. Zaiwalla, the learned Counsel for the Plaintiff, submits that the copy of the judgment is to be found in the record and proceedings of the suit and the same was annexed to the Civil Application after due inspection of the record. I accept the official version and hold that the unsigned copy of the judgment relied on by the plaintiff is the copy of the judgment as announced in Court.1
Bombay High Court
Darayas Cawasji Balsara vs Shenaz Darayas Balsara on 29 July, 1991
Equivalent citations: AIR 1992 Bom 175
Bench: D Dhanuka
1. There is a controversy between the parties as to whether M. P. Kania, J. (as he then was), had delivered his judgment in open Court on 31st July 1989 and it merely remained to be signed. The Hon'ble Mr. Justice M. P. Kania is now a Judge of the High Court of Allahabad. According to the learned Counsel for the Plaintiff, on 31st July 1989, the learned Judge had dictated his judgment in open Court. Mr. M. Janardhanan, Advocate for the Defendant, says that the judgment was not delivered by the learned Judge in the open Court. Miss. A. Rodrigues was the Registrar of Parsi Chief Matrimonial Court, Bombay, on that day and throughout the session which lasted upto 11th August 1989. In view of the above controversy, I have thought it fit to request Miss Rodrigues, who is now functioning as Deputy Official Assignee, to produce the primary record maintained by the Court in this behalf. In the Minute-book maintained by the Registrar Miss Rodrigues, it is recorded at page 78 as under :--
"Monday; 31st July 89
Coram : Kania J.
Called suits for hearing and final disposal.
Suit 1986
Mrs. M. P. Shroff with Mr. K.R. Zaiwalla-Plaintiff.
Mr. M. Janardhanan with Miss Z. I. Irani and Mr. R. L. Vanoo-Defendants."
In the margin the name of M/s. Gagrat and Co., who represented the Plaintiff, also appears.
2. The relevant part of the minutes reads as under :--
"Oral Judgment separately dictated. Issues are answered as follows :--"
3. Miss Rodrigues, as the Registrar of the Parsi Chief Matrimonial Court, Bombay, was required to prepare a statement giving particulars of disposal of matters by the Parsi Chief Matrimonial Court in that session where Decrees for Divorce were granted. A copy of the said statement prepared by Miss Rodrigues in the ordinary course of her duties as Registrar forming part of the Court record is shown to me. The relevant extract pertaining to the subject-matter of the present controversy reads as under :--
" 1. Suit No. 19 -- 1986
Darius C. Balsara
Shenaz D. Balsara
Date of marriage at Bombay 14th February 1985.
Decree for divorce on 31-7-89."
4. I have shown the above original record to the Counsel for both the parties.
5. No minute of the decree passed on 31st July 1989 was recorded. It appears to be the practice with the Associates to prepare minutes after the judgment is signed. The Judgment remained unsigned.
6. There is a contemporaneous evidence in the form of praecipes filed by the Advocates for the Plaintiff which supports the Plaintiff's version in addition to the official record mentioned above which by itself is more than sufficient to hold that the learned Judge had dictated the judgment in open Court. It is not in dispute that the delegates had arrived at their conclusion on the issues framed by the learned Judge and had informed their verdict to the learned Judge.
7. I am shown a copy of the praecipe addressed by M/s. Gagrat and Co. on 16th August 1989 to the Registrar, Parsi Chief Matrimonial Court, which reads as under :--
"Be pleased to furnish us with certified copy of the Judgment passed by His Lordship the Hon'ble Mr. Justice Kania in the above matter on 1st August 1989."
Thus there is a discrepancy in the praeceipe about the date of delivery of judgment. In my opinion, this discrepancy is of no consequence. This praecipe shows that the learned Judge had pronounced his judgment in open Court.
8. On 5th March 1990, M/s. Gagrat and Co. filed a praeceipe with the Registrar, Parsi Chief Matrimonial Court, forwarding therewith a copy of the Decree for Divorce. It was stated in the said letter that the decree was . passed on 1 st August 1989. It was stated in the said letter that M/s. Gagrat and Co. were forwarding a copy of the draft decree to the Advocate for the defendant. I am shown a copy of the said praecipe.
9. Some of the original praecipes are not traceable in the original record, but copies thereof are shown to me from the office file of M/s. Gagrat and Co.
10. Along with the letter dated 5th March 1990 addressesd to Mr. M. Janardhanan, Advocate, M/s. Gagrat and Co. forwarded therewith a draft of the Decree for Divorce dated 1st August 1989 for approval of Mr. Janardhanan and early return to them.
11. By his letter dated 7th March 1990, Mr. M. Janardhanan, Advocate for the Defendant, informed M/s. Gagrat and Co. that he was surprised and shocked to read the contents of the said letter, as according to him the matter was part-heard and the judgment was reserved. It was also stated in the said letter that according to the information received from the Registrar of the Parsi Chief Matrimonial Court, the judgment was yet to be delivered by the Hon'ble Court. In view of the official record of this Court, the statements made in this letter are not acceptable to me.
12. On 8th June 1990, M/s. Gagrat and Co. filed another praecipe with the Registrar of Parsi Chief Matrimonial Court. Reference was made in the said praceipe to the earlier praceipe dated 16th August 1989 by which M/ s. Gagrat and Co. had applied for certified copy of the judgment which was pronounced in open Court by the Court. Tt was stated in the said letter that the said judgment was announced on 1st August 1989. It was slated in the said praceipe that the learned Registrar should bring it to the notice of his Lordship the Hon'ble Mr. Justice Kenia about the said judgment having not been signed, as more than ten months had expired, and do the needful. It was stated in the said praceipe that the said judgment was dictated by his Lordship in open Court. Shri B. A. Rumao was the Registrar of the Parsi Chief Matrimonial Court in the month of June 1990. The endorsement of Shri Runiao dated 8th June 1990 on the said praceipe reads as under :--
"Soon his Lordship Kenia J. in Chamber at 5.00 p.m.
Per Kenia J.
To remind next week.
Sd/-- Rumao
8th June 1990.
His Lordship Shri Kenia J. hospitalised.
And hence could not remind.
Sd/-
14th June 1990."
This endorsement is of considerable significance, as Kenia, J., appears to have told Shri Rumao to remind him about signing of the judgment next week.
13. On 8th June 1990, another praceipe was written by M/s. Gagrat and Co, to the Registrar for settling the draft decree.
14. On 9th October 1990, M/s. Gagrat and Co. filed a praceipe with the Registrar, Parsi Chief Matrimonial Court, endorsing copy thereof to Mr. M. Janardhanan. Thereupon the matter was placed before the Hon'ble the Chief Justice. The Hon'ble the Chief Justice directed as under :
"Minutes to be placed after vacation."
15. On 29th October 1990, another praceipe was filed by M / s. Gagrat and Co. to the Registrar, Parsi Chief Matrimonial Court, requesting the Registrar to place the minutes of the decree dated 31st July 1989 before the Hon'ble the Chief Justice in his Lordship's Chambers on 31st October 1990 at 4.30 p.m. for necessary direction. Thereupon the records were called for. No orders were passed on that praceipe.
16. It is not necessary to refer to lot of other papers which are to be found in the proceedings. It is also not necessary to refer to the papers which are alleged to be missing from the proceedings.
17. On 3rd April 1991, the Plaintiff filed a Civil Application in this Court. In the said Civil Application, prayer was made for signing of the judgment dated 31st July 1989 pronounced by Kenia, J., in open court and for various other reliefs, including preparation of the Decree for Divorce in accordance therewith. A copy of the said Application is served on Mr. M. Janardhanan, Advocate, just now. Reference is made to copy of this Application only for the limited purpose of referring to the annexures thereto. Exhibit 'A' to the said Application consists of summing-up by (he Hon'ble Mr. Justice Kenia to the delegates dated 31st July 1989. Exhibit 'B' consists of copies of notes made by N. P. Kenia, J; on 31st July 1989 in respect of the verdict of the delegates, etc. and his judgment. I find unsigned copy of the judgment in the record of the case.
18. The learned Chief Justice has assigned this matter to me for deciding the question judicially as to what procedure should now be followed by the office and pass consequential orders.
19. Having regard to the official record and the preponderance of probability, I hold that the learned Judge had dictated his judgment in open Court on 31st July 1989 after the delegates had reported to the Court their unanimous answers on issues Nos. 1 to 5.
20. Mr. M. Janardhanan, Advocate, submits that the matter was shown as part-heard subsequently on Board, Miss Rodrigues points out that the question of permanent alimony was required to be decided by the Court and only for this purpose the matter was shown as part-heard. I accept Miss Rodrigues' version. Mr. Zailwalla submits to the same effect.
21. Order XX, R. 8 of the Code of Civil Procedure, 1908, provides guidance in a situation of this nature. The said rule reads as under :--
"8. Where a Judge has vacated office after pronouncing judgment, but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which the Court was subordinate."
22. It was held by the Hon'ble Supreme Court in the case of Vinod Kumar Singh v. Banaras Hindu University that
the judgment pronounced in open Court operates from the time of its pronouncement even if it is not signed, as the parties act upon the judgment.
23. In Ananchaperumal Nadar v. Veerabhadra Pillai, AIR 1952 Travancore-Cochin 60, the Travancore High Court held that the succeeding Chief Justice could sign the decree where the Hon'ble Chief Justice and the puisne Judges who constituted the Bench ceased to be members of the Court before the decree was drawn up and signed. Sir Dinshaw P. Mulla's Commentary on O. XX, R. 8 of the Code of Civil Procedure, 1908, can be referred to for the purpose of guidance on the subject. I am conscious of the fact that O. XX. R. 3 as well as O. XX, R. 8 of the Code do not apply to Chartered High Courts in exercise of their original jurisdiction. The said rules are applicable to the Parsi Matrimonial Court and can be considered even otherwise by analogy. For the sake of analogy, it appears to be useful to refer to the observations made in paragraph 4 of the judgment in Anancha-perumal Nadar's case (supra). The said observations are as under (at page 61) :
"(4) There is nothing wrong in Krishnaswamy Iyer, Chief Justice signing the decree on behalf of his predecessor in office or for the other learned Judge with whom Joseph Thaliath, Chief Justice agreed. O. 20, R. 8, C.P.C., provides that when a Judge has vacated office after pronouncing judgment but without signing the decree a decree drawn up in accordance with such judgment may be signed by his successor."
Relying upon the said observations and the general principles deducible from O. XX, R. 8 of the Code of Civil Procedure, I am of the opinion that in the circumstances of the case the unsigned judgment and the notes of evidence should be signed by the successor Judge to whom the work is assigned by the learned Chief Justice and the necessary directions should be given to the office to prepare the minutes, draw up the decree and issue the certified copies. I have accordingly decided to do so.
24. In this view of the matter, I hold that a successor Judge is entitled to sign the judgment on behalf of the Judge who pronounced the same in open Court, Mr. K. R. Zaiwalla, the learned Counsel for the Plaintiff, submits that the copy of the judgment is to be found in the record and proceedings of the suit and the same was annexed to the Civil Application after due inspection of the record. I accept the official version and hold that the unsigned copy of the judgment relied on by the plaintiff is the copy of the judgment as announced in Court.
25. Having regard to the authorities to which no reference need be made, I direct Miss Rodrigues to prepare minutes on the basis of the said judgment as it exists in the record which will be signed by me as a successor Judge in pursuance of my order passed today on behalf of the Hon'ble Mr. Justice Kenia as aforesaid. 1 also direct the Registrar to prepare the Decree for Divorce on the basis of the said judgment as early as possible and issue the certified copies thereof to the parties.
26. There is one more aspect. The notes of evidence have not been initialled by the learned Judge. Copies of the notes of evidence were supplied contemporaneously to the Advocates as the trial proceeded. The trial lasted for about 22 days. Thus there is no chance of an error in the notes of evidence. I, however, invite the learned Counsel for both sides to point out if any corrections are required to be made in the notes of evidence. No suggestion is forthcoming. Accordingly, the notes of evidence shall be treated as authentic and the same are not required to be initialled by me or by any other Judge or by the Registrar. If any party applies for certified copy of the notes of evidence, the Registrar may issue the certified copy thereof on the footing that the notes of evidence in the record of the Court are authentic, though not initialled by the learned Judge.
27. I cannot part with this hearing without recording that the defendant appears to be interested in retrial of the suit without any justification. The defendant should not have raised a contention to the effect that no judgment was pronounced by the learned Judge. If the defendant is aggrieved by the judgment and decree, the defendant can prefer an appeal instead of attempting to cast doubt on official record of the Court maintained by its Registrar.
28. Order Accordingly.
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