No provision to affix the signature by the successor Judge on earlier pronounced consent order in open Court

No provision to affix the signature by the successor Judge on earlier pronounced consent order in open Court:

There is no provision in CPC to affix the signature by a Judge who has not heard the matter and/or not dictated the order and/or pronounced the consent Judgment or order in open Court. There is no provision to pass consent decree/order based upon the disputed terms/agreement unless agreed by all the parties or in a given case by the respective Advocate/counsel, apart from signatures by all concerned, on such terms and conditions. The consent decree/order can be passed only on agreed written terms or unless consented and agreed to pass the order without raising any objection and not otherwise. It is always permissible for the parties, even if there is an order and/or judgment passed, based upon the consent terms to point out and/or object to the alleged consent order or judgment, if terms are not agreeable and/or not agreed or wrongly recorded. The parties are, therefore, even as per the CPC and/or otherwise entitled to raise the objection to any consent terms/order. The remedies are available under the law. Order 43, Rule 1A(2)of C.P.C. applicable if the Judgment and following the decree is duly signed by the Judge who pronounced it.

 The dictation in open Court cannot be treated as judgment as pronounced Judgment/order, unless it is signed and dated by the concerned Judge, there is no case for affixing signature by anyone else or the Judge who has not pronounced the order. The affixing of the signature go back to the date of pronouncement and validate the Judgment/order.
IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 201 of 2012 in Trust Petition No. 1 of 2001

Decided On: 23.11.2012

Appellants: Ravindra Narottamdas Merchant 
Vs.
Respondent: Niranjan Narottamdas Marchant 

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

Citation: 2013(3)BomCR838,2013(7) ALL MR 143

1. Heard by consent of the parties finally.

BACKGROUND:

Both the counsel made their respective submissions and the matter was closed for orders on 31.08.2012. The parties were directed to file written notes of arguments. However, as noted and as there was no arguments made with regard to the Chamber Summons and the Notices of Motions referred in last paragraph of order dated 5 August 2005, the matters were listed for clarification on this part; and for supply of copies; and for re-hearing as those matters were not part of the main hearing. On 5 October, 2012 the time was sought to file the same and it was accordingly extended. The Office was also directed to place all these Notices of Motions and the chamber summon along with the main matter on 10.10.2012. The time was sought again and accordingly the matter was adjourned for 19.10.2012 for re-hearing.

2. The parties filed the additional compilations of documents. The parties were also directed to file a short synopsis and written notes of arguments revolving around these disposed of Notice of Motions and the chamber summons. On 29.10.2012, re-heard both the learned senior counsel appearing for the parties. No specific and/or extra arguments were made. All have been relying on the arguments already advanced orally as well as in writing.

3. Following are the prayers of the Notice of Motion No. 201/2012:

a) That this Hon'ble Court be pleased to call for the records which contain the original order dated 5th August 2005 as passed by his Lordship, Justice S.U. Kamdar (as he then was) and affix the signature on the same;

b) In the alternative this Hon'ble Court may take on record the agreements that are signed by the parties and their respective counsel appearing at the relevant time on their behalf as a compromise/agreement and an order/decree be passed in terms of the same;

c) Pending the hearing and final disposal of this Notice of Motion, the respective parties be directed to maintain the status-quo of the trust properties.

4. Certain events of the background litigations, as per the Petitioner, dealt in Notice of Motion No. 201/2012 in Trust Petition No. 1/2001, is as under:-

On 04/08/31, the grand father of the Petitioner Shri Jethabhai Govindji registered/created a private trust by Deed dated 4.8.1931 under Sr. No. 3204 of 1931, whereby he settled his properties for the benefit of his wife Jamnabai and his son Narrotamdas J. Merchant for and during his life time and thereafter the properties were to be devolved equally upon the two sons of Narrotamdas namely the Petitioner and Respondent No. 2. The property herein bearing C.S. No. 1524 on Girgaum Division with structures/buildings thereon was one of the properties mentioned in the Trust deed besides several others.

24.3.1935, Seth Jethabhai Govindji expired and the Trust continued to be managed by the Suriving Trustee. Some time in May, 1943, Narrotamdas Jethabhai, father of Petitioner (Ravindran) was inducted as a co-trustee of the trust by then surviving Trustees. Respondent No. 1, Mrs. Niranjani N. Merchant, the Petitioner's mother, was inducted as a co-Trustee of the Trust by the then Surviving Trustees, some time in 1948. The Petitioner, who was and is one of the beneficiaries, was inducted as a co-Trustee of the Trust in October 1963.

On 12/12/97, the Petitioner filed Suit No. 44 of 1998 for removal of his father, Narrotamdas Jethabhai, as a Trustee for allegedly committing blatant breaches and misappropriation of the Trust properties by the gifts and by his Will, when he had only a life interest therein. He had also claimed title to the Trust properties and denied the existence of the Trust. He used Trust funds to purchase shares and securities and Lonavla property. On 8 October, 2000, the Father of the Petitioner Seth Narottamdas Jethabhai expired. On his death, Clause 5(b) and 14 and 1 of the said Trust on became operative. The Trust properties were now required to be divided equally between the two beneficiaries, the petitioner and Respondent No. 2 herein. The Petitioner filed Trust Petition No. 1 of 2001 for distribution of the Trust Fund. By order dated 2nd April, 2001, the Court appointed the Petitioner and Respondent No. 2 herein (beneficiaries named under the Trust Deed) as joint receivers to take charge of all the vacant premises of the Trust properties, to collect the outstanding rents to be received from the tenant of the Trust property. On 20 January, 2005, Chamber Summons No. 1006 of 2004 taken out by Respondents 3, 4 and 5, to add, as the parties in the Trust Petition was dismissed. The following matters were listed on the board of the learned Single Judge, on 5.8.2005.

(1) Trust Petition No. 1 of 2001

(2) Chamber Summons No. 1342 of 2003 for amendment of Trust Petition No. 1 of 2001 taken out by the Appellant to incorporate shares and Fds as Trust properties.

(3) Notice of Motion No. 1198 of 2003 taken out by the Appellant in Trust Petition No. 1 of 2001 to permit the Petitioner and Respondent No. 2 as Receiver to create third party interest and to permit the Petitioner to use the entire property, including 7 and 8 floors.

(4) Notice of Motion No. 3707 of 2003 in Suit No. 44 of 1998 taken out by Respondent No. 1 for modification of the order dated 2nd April 2001 by removing the petitioner and Respondent No. 2 as joint Receivers.

(5) Notice of Motion No. 1185 of 2005 taken out by the Petitioner for reimbursement of expenses.

(6) Notice of Motion No. 1902 of 2005 in Trust Petition No. 1 of 2001 taken out by Respondent No. 2 for an order against the Petitioner to deposit 50% of the value of the assets.

(7) Notice of Motion No. 2411 of 2003 in Trust Petition No. 1 of 2001 taken out by Respondent No. 2 seeking relief for shifting to the 7 and 8 floors.

The learned Judge disposed of all the aforesaid proceedings by order dated 5th August, 2005 (the impugned order) recording it as consent order. It is the Appellant's case that there was no consent given by him for passing the impugned order. The copy of the order was received on 17.8.2005. The Appellant was took search but found no Roznama on 22.8.2005. The Warrant of attachment was served by the BMC (Bombay Municipal Corporation) on 26.8.2005. The notices were received from the BMC dated 11th November, 2005, demanding tax arrears. The part of it paid by the Petitioner and respondent No. 2.

On 2 March, 2006, Notice of Motion No. 668 of 2006 was taken out by the Petitioner for recalling order dated 5 August, 2005 on various grounds, including denial to the consent order and its contents. It was opposed by contesting party by the respective affidavits in reply.

5. Respondent No. 2's advocate called upon the Petitioner to appear before the 1st Assistant Master to settle the draft of decree. The draft decree was also enclosed along with notice dated 15th February, 2006. The Petitioner had filed an ad-interim application in Notice of Motion No. 668 of 2006 on 8th March, 2006 and asked for stay of the consent order, which was rejected.

6. In view of the averments made in the affidavit in support of the aforesaid Motion, the Court had directed to file an affidavit stating the background and what transpired on the date when the matter was discussed and the consent order was passed. As per the order, Mr. U.J. Makhija, Advocate for the Petitioner filed an affidavit on 17th April, 2006. The Petitioner had also filed his affidavit accordingly. On 21st April, 2006, the learned Judge (S.U. Kamdar, J.) issued a show cause notice for contempt under Section 12(2)(b) of the Contempt of Courts Act.

7. On 14th June, 2006, a decree was drawn as per Rule 300 of the Bombay High Court (Original Side) Rules, signed by the Prothonotory and Senior Master, High Court Bombay. It was sealed accordingly on 15th June, 2006.

8. A Chamber Summons was taken out by the son and the daughter of the Petitioner referring to consent order, on 4th January, 2007. By order dated 23rd January, 2007, the learned Judge (Coram: Mrs. R.S. Dalvi, J.) rejected Notice of Motion No. 668 of 2006 in which prayers were also made to set aside the impugned order. An Appeal filed on 23rd February, 2007 bearing No. 197 of 2007 by the Petitioner against the same. On 15th March, 2007, an order was passed in Chamber Summons by the learned Judge (Coram: Mrs. R.S. Dalvi, J.) referring to the decree passed pursuance to the impugned order.

9. The Petitioner's mother, Respondent No. 1 pursuant to the warrant of possession took possession of 1st floor of Ravi Kiran on 10th April, 2007. A Division Bench of this Court on 21st November, 2011, set aside order dated 23rd January, 2007, and granted a liberty to the respondent to adopt suitable proceedings in accordance with law before the learned Single Judge, as per the assignment.

10. The Petitioner/appellant, therefore, based upon the liberty filed the present Notice of Motion on 11th January, 2012. The contesting parties filed their affidavit and additional affidavit and resisted the Motion and the averments made in supporting affidavit. By reasoned order dated 9th April, 2012, the learned Judge (Coram: Mrs. R.S. Dalvi, J.) rescued herself from the matter.

11. In this background, as directed by the Hon'ble the Chief Justice, the present Notice of Motion listed for re-hearing.

12. As those Notices of Motions and chamber summons were also disposed of, it is necessary to consider the reasons and reliefs they had claimed therein. The additional written submissions on behalf of Respondent No. 2 as filed on 29.10.2012 gives the gist of the same, which is reproduced as under:

A. Chamber Summons No. 1342 of 2003

Chamber Summons No. 1342 of 2003 dated 15 September 2003 together with Schedule to Chamber Summons; filed by the Petitioner, to bring back certain shares and the fixed deposits to the Trust properties as the same were purchased by the Trust Funds, equal distribution of properties, seeking direction that monies be deposited in Court.

B. Notion of Motion No. 1198 of 2003 : Dated 7 April 2003, filed by the Petitioner, that the joint Receivers being the only beneficiaries of the Trust be permitted to create third party rights and interest in the Trust properties. That pending the final disposal of the Petition, the Petitioner be permitted to use the entire property including the 7th and 8th floor.

C. Notion of Motion No. 3707 of 2003 : Dated 16 December 2003 filed by Respondent No. 1, the Court Receiver of High Court Bombay be appointed as the Receiver of certain of the Trust properties, Respondent No. 4 (Additional Respondent) be restrained by an order and injunction from parting with possession of Flat No. 6A of Ravi Kiran. The Petitioner and Respondent No. 2 be restrained from creating any third party rights in respect of the estate of Mr. N.J. Merchant.

D. Notice of Motion No. 693 of 2004: Dated 26 February 2004, filed by the Petitioner. Seeking direction that Respondent No. 2 sign necessary cheques as co-receiver for making payments to the Petitioner in the present and in the future. Direct Respondent No. 2 to unblock the Joint Receiver's account with HDFC Bank so that the rent can be deposited in the same.

E. Notice of Motion No. 1185 of 2005 : Dated March 2005 filed by the Petitioner. That the Petitioner be reimbursed for an amount of Rs. 35,56,167/- being the expenses incurred by him for protecting the Trust property, viz., Jethabhai Govindji Chowpatty Trust.

F. Notice of Motion No. 1902 of 2005 dated 7th June, 2005 filed by Respondent No. 2, seeking direction to deposit 50% of the value of the assets, investments, shares and securities of Merchant Management Systems Private Ltd and also almond business.

G. Notice of Motion No. 2411 of 2003 dated July 2003, filed by the Petitioner. That pending the final disposal of the Petition, the Petitioner be permitted to use the entire property including the 7th and 8th floor.

H. Notice of Motion No. 1474 of 2000 dated 28th April 2000, filed by the Plaintiff/Petitioner. That the Consent Terms signed between the Plaintiff and the Defendant on 15th February 2000 be set aside. That the Suit be restored on file. Notice of Motion No. 228 of 1998, No. 3546 of 1999 taken out in the Suit and Chambers Summons No. 39 of 2000 be heard expeditiously.

13. The impugned consent order passed as alleged, on the basis of submissions and representations made by the parties through their respective advocates in the open court. The relevant words of the first paragraph of the order are "by consent of the parties the following order is passed." The case is that though the order was pronounced in open court, but it was not signed. It was corrected in chamber also. The reasons for the same are not on record.

14. It is contended by the learned senior counsel appearing for Respondent No. 2 that in consideration of the mutual understanding and consent for distribution of the property as elaborated in the impugned order, the Trust Petition was disposed of and so also all the Notices of Motions and the chamber summons. There is no proceedings taken out for revival of these Notices of Motions/chamber summons except the Notice of Motion in question. The submission is again made that the decree recording disposal of these proceedings was also signed, sealed and delivered as per the applicable procedure.

15. The learned Sr. counsel Mr. Harish Jagtiani for the Applicant Apart from the provisions of the Civil Procedure Code (CPC) and the Bombay High Court (Original Side) Rules referred and relied upon the following Judgments only:

(1) Haikiullah Haji Rahimutullah & Ors. Vs. MHADA, MANU/MH/0042/1997 : 1997 (1) Mh. L.J.

(2) Darayas Cawasji Balsara Vs. Shenaz Darayas Balsara, MANU/MH/0034/1992 : AIR 1991 Bombay 175.

(3) Indian Council For Enviro Legal Action Vs. Union of India & Ors., MANU/SC/0837/2011 : (2011) 8 SCC 161.

(4) Niyamat Ali Molla Vs. Sonargon Housing Cooperative Soc. Ltd. & Ors. MANU/SC/8029/2007 : (2007) 13 SCC 421.

(5) Phool Kumari Vs. Nandu Ram MANU/HP/0045/2002 : AIR 2003 HP 75.

The relevant provisions of C.P.C.-unsigned, pronounced Judgment/order & affixing a signature by the predecessor Judge on such impugned consent order :

SECTION 2(9) OF CPC is as under :

2. (9)"Judgment" means the statement given by the Judge on the grounds of a decree or order.

Section 33:-

Judgment and decree:- The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.

SECTIONS 151, 152 OF CPC read as under :

151. Saving of inherent powers of Courts.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.

152. Amendment of Judgments, decrees or orders.-Clerical or arithmetical mistakes in Judgments, decrees or others or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

ORDER 4 RULE 2 of CPC reads as under :

Register of suits.-The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.

O-20 R-1:-

[Judgment when pronounced:-

(1) The Court, after the case has been heard, shall pronounce judgment in an 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:

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty 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.]

[(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.]

[(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.]

O-20 R-2

Power to pronounce judgment written by Judge's predecessor.-

[A Judge shall] pronounce a judgment written, but not pronounced, by his predecessor.

O-20 R-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 section152 or on review.

O-20 R-8

Procedure where Judge has vacated office before signing decree:-

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 such Court was subordinate.

ORDER 23 RULE 3 and 3-A read as under :

3. Compromise of suit.-Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit];

[Provided that where it is allegedly by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for recorded, thinks fit to grant such adjustment.]

[Explanation.-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.]

3-A Bar to Suit.-No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

ORDER 43 RULE 1-A(2) reads as under :

1-A. Right to challenge non-appealable orders in appeal against decrees.-

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.

16. Respondent Nos. 1 and 3 to 4 have also read and referred those provisions and also relied on additional Judgments referring to the interpretation of procedural law.

The respective submissions :

17. In the motion in question through the supporting affidavit, the case is sought to be made out by the Appellant (original respondent No. 2) that the consent order was passed after hearing the parties and after taking suggestions of the respective parties and their counsel, apart from their wish and desire to settle the matter. Thereafter, in the open Court the consent order was dictated and pronounced. It is specifically averred that the order has taken into consideration in great details the concerned properties and as per the wish of the respective parties and the same have been ordered to be distributed. Whenever it was not possible to distribute the property, the certain compensation was directed to be paid. At the relevant time in the Court, there was no objection raised and in fact respective counsel cooperated with each other to settle the disputes. It is specifically averred that the consent order was uploaded on the website of this Hon'ble Court and the duly authenticated copy was also made available to the respective parties. All the parties acted upon the consent orders and in fact has been partly executed after following the due procedure of law.

18. The case is that on 21 November 2011 they came to know that the impugned order was not initialled or signed by the learned Judge, as he then was, after dictating and pronouncing it in the open Court. The order was affixed in the record books, as duly certified copy was made available, therefore, submitted that in the facts and circumstances, it is only a ministerial act of signing and initialling of order dated 5 August 2005 is remained. The submission is also made that such order once pronounced in the Court become final and binding.

19. The averments and the submissions are also made that the challenge was raised based upon various contradictory grounds. The same was not accepted by the Court while passing order on 21 November 2011, what remained was only the ministerial act of signing and/or initialling the order by the predecessor Judge. Alternative submission/averment is also made on the foundation that the written agreement signed by the parties is on record which should be taken as a valid and binding between the parties and by treating the same as a consent terms, pass orders as prayed. The averments are also for an appropriate interim order. The challenge of any kind to the decree was also opposed.

20. The other side has opposed this motion by filing affidavit on various grounds including on merits. The objection is that such motion is misconceived and not maintainable. The reference is also made to the Notice of Motion No. 668 of 2006 whereby the prayer to review the trust petition, as well as, various interim applications taken out therein. The averments are also made that they never intended and did not settle the dispute as mentioned in the order. The specific contention is raised referring to the motion taken out by them that the alleged consent terms never signed by the parties; at all and the same are against O-23 R-3 of CPC; and will liable to be set aside. The reference is also made to Order dated 23 January 2007 whereby the motion was dismissed. The Appeal was heard by the Division Bench and by order dated 21 November 2011, the liberty was granted to the parties to take out appropriate application or motion before the learned Single Judge by specifically observing that the Notice of Motion did not survive as both the parties agreed that there was no signed or initialled the impugned order. It is specifically contended that there is no provision under the law whereby the party can insist that the order can be signed by any other Judge. It is specifically averred that there is nothing to show that the order was prepared by consent of the parties and/or there was any lawful compromise or settlement as contemplated under O-23 R--3 of the CPC. It is also averred that all these contentions so raised by Respondent No. 2 in the present motion was considered and thereafter the Division Bench had disposed of the appeal. There are averments made with regard to the equal distribution of the properties, and of the compensation. There is a denial with regard to the cooperation of the parties, as well as, the counsel, as averred by Respondent No. 2. The denial is also made with regard to the uploading of the order on the website and also that it was duly certified by the High Court. The averments are also made that partial execution of the order was illegal. It is specifically averred that "in the eyes of law there is no order at all because it is not signed by the Judge concerned. Whether it was through inadvertence of otherwise, neither the respondent No. 2 nor any one can say anything about. The learned Judge is no longer in office now." The averments about certain disciplinary action against the officers of the department for allowing the execution without certified copy of the order is also made. Ultimately, thereby opposed the motion on all counts.

21. Affidavit in rejoinder dated 29 March 2012 filed by Respondent No. 2 and principally reiterated their case and it is also contended that under O-23 R- -3 the consent terms/terms signed by the counsel/advocate are sufficient to pass the order. The reference is also made to the fact that this Court had passed the Judgment/order on 15 March 2007 based upon the forcible possession of the first floor of Ravi Kiran Building as taken by executing the warrant of possession under O-21 R-35 and 36 of the CPC. This is again based upon the order passed by this Court on 20 October 2006 in terms of the execution of the decree passed on 20 August 2005.

22. Additional Affidavit in support of Notice of Motion dated 29 March 2012 is filed by Respondent No. 2. There reference was also made to O-20 R- 8 of the CPC and submitted that the successor Judge required to sign the consent terms to avoid further delay and immense prejudice, so that the proceedings can attain finality. The reliance is also made to the contempt proceedings; and an unconditional apology by affidavit dated 21 April 2006 was tendered by admitting the fact that the order was dictated in the open court.

No provision to affix the signature by the successor Judge on earlier pronounced consent order in open Court:

23. There is no provision in CPC to affix the signature by a Judge who has not heard the matter and/or not dictated the order and/or pronounced the consent Judgment or order in open Court. There is no provision to pass consent decree/order based upon the disputed terms/agreement unless agreed by all the parties or in a given case by the respective Advocate/counsel, apart from signatures by all concerned, on such terms and conditions. The consent decree/order can be passed only on agreed written terms or unless consented and agreed to pass the order without raising any objection and not otherwise. It is always permissible for the parties, even if there is an order and/or judgment passed, based upon the consent terms to point out and/or object to the alleged consent order or judgment, if terms are not agreeable and/or not agreed or wrongly recorded. The parties are, therefore, even as per the CPC and/or otherwise entitled to raise the objection to any consent terms/order. The remedies are available under the law. Order 43, Rule 1A(2)of C.P.C. applicable if the Judgment and following the decree is duly signed by the Judge who pronounced it.

24. The dictation in open Court cannot be treated as judgment as pronounced Judgment/order, unless it is signed and dated by the concerned Judge, there is no case for affixing signature by anyone else or the Judge who has not pronounced the order. The affixing of the signature go back to the date of pronouncement and validate the Judgment/order.

25. The Supreme Court in K.V. Rami Reddy v. Prema MANU/SC/1133/2008 : 1 (2009) 17 SCC 308, referring to Section 2(9) and Order 20 Rules 1 to 8has observed as under :

11 The ultimate question is whether in the instant case the judgment has been validly delivered? If it is a mere procedural irregularity and the Judge concerned had not signed the judgment, then the judgment thus rendered cannot be invalidated. Order 20 Rule 1 CPC postulates that after the case has been heard, the Court hearing the same shall pronounce the judgment in open court by dictation to the shorthand writer, wherever it is permissible. It bears the date on which it is pronounced. The date of the judgment is never altered by the date on which the signature has been put subsequently. The mere fact that a major portion has been dictated by the learned Judge in the judgment already dictated, will not, by itself, lead to the conclusion that the judgment had been delivered.

17 Undisputedly, the trial Judge had not completed the judgment before he delivered his decision. That being so, the impugned judgment does not suffer from any infirmity to warrant interference. What the High Court has directed is to hear only the arguments afresh. While dismissing the appeal, we direct that the arguments shall be heard afresh and the trial court shall deliver its judgment as early as practicable, preferably within three months from today. To avoid unnecessary delay, let the parties appear before the trial court on 5-3-2008 so that the date for arguments can be fixed.

26. Admittedly, in the present case, the impugned order was pronounced in open Court in presence of the parties, as well as, the counsel. There were corrections made in the Chamber also, but it remained unsigned. The objection was raised about terms referred in the impugned order including the distribution of the property. Those objection itself means unagreed terms/conditions so put in the order. The parties, therefore, filed affidavit raising the various objections including the way in which the order was passed. Both the counsel have raised and referred those affidavits and pointed out how the impugned order is final and binding; and the case of the other side is that it is not binding and cannot be treated as the consent order and/or terms.

27. Admittedly, this is not the case where the parties after signing the consent terms submitted and requested the Court to pass decree on it. There is no denial that no-one has signed any terms and conditions at any point of time on the basis of which authoritative pronouncement cannot be made that the consent terms/order so passed was based upon written and signed consent terms by the third person or other Judge. The tenure of the order so passed itself shows that after hearing the counsel and the parties, the earlier learned Judge, has accepted and recorded the suggestions and the terms and passed the order. One side is objecting to the same even on merits. It is relevant to note that any judgment cannot be read as statute in every circumstances. It is not a simple case of passing and/or pronouncement of judgment by the Judge, after hearing the matter. The case is no pre-written and signed consent terms, but recorded in the order after due discussions, and given effect also. The decree was drawn and to the some extent it was executed also. The challenge has been still made to the impugned order in every aspect. The review against the order was also taken out as the aggrieved party not ready to accept the contents of the order. But rightly, for want of the signature on the pronounced consent order the matter was disposed of by the Division Bench with liberty. No signature; no final judgment/order. This itself means, no question of drawing any decree and execution of it. Everything should collapse.

28. Considering the facts and circumstances, as well as, the averments made in the present Motion, read with the prayers so made, the scope is quite limited. There is no question going beyond the prayer clauses so raised/made by the Applicant of the Motion.

29. Admittedly, by the impugned order suggestions and terms were recorded in open Court and treated as pronounced in open court. It remained unsigned, even after correction. It appears that all the parties including office were under impression that it was duly signed as it was uploaded on the internet also. Everyone acted upon the basis on presumption that it must have been signed by the Judge who has pronounced the order in the open Court, after correcting it. At this stage, I am not inclined even to consider the objection and/or reason that how even the Court officer can draw decree as per the Rule 300 of the Bombay High Court (Original Side) Rules and sealed it without verifying and/or without having certified copy of the signed order of the Judge. This undisputed position itself means the decree was drawn based upon the unsigned but the pronounced order. The decree should be drawn as per the signed Judgment only. The Judgment itself means that a Judge who has heard the matter, has pronounced the judgment and put his signature and date accordingly. Such judgment only takes effect as per the CPC. Even assuming for a moment that O-20 R-1, 2 and 3 and the procedure so laid down are of directory in nature and/or that it would not and/or should not read to mean mandatory and/or any irregularity of such nature are curable, but in the present facts and circumstances, considering the background of the matter and way in which the matter was alleged to have proceeded from stage to stage and as there are various objections raised with regard to the procedure and the way in which the impugned order was passed and also the merit of the same, this aspect according to me are relevant to be decided first before accepting the submission so raised by the learned senior counsel appearing for the Applicant in support of the motion. Both the parties are not in agreement for the Judge to sign or affix the signature on impugned order. The subsequent Judge cannot overlook the objection so raised on all counts.

Controversial facts and circumstances lead to consent order:

30. The learned counsel appearing for Respondent No. 2 referring to the documents and the Judgments, submitted that following circumstances are sufficient to establish that the order was passed by consent.

i) Certified copies issued to parties.

ii) Consent Order uploaded on the website of the Bombay High Court;

iii) Originals of the order pasted in the minute book [as confirmed by Justice R.S. Dalvi in order dated 9th April 2012];

iv) The records of the court and particularly affidavits filed by respective parties and their counsel [Affidavit of the Petitioner dated 21st April 2006 at Page No. 44, Affidavit of Petitioner's Counsel dated 17th April 2006 at Page No. 46, Affidavit of Respondent 1's Counsel dated April 2006 at Page No. 56 and Affidavit of Respondent Nos. 4 to 6's Counsel dated April 2006 at Page No. 62 - of Additional Affidavit of Respondent No. 2]

v) Decree drawn up in accordance with the Bombay High Court Original Side Rules [Page No. 9 of Compilation of Orders/Documents];

vi) Judges' Order passed for execution and taking possession of the 1st floor by the Respondent No. 1 pursuant to the provisions of the Consent Decree;

vii) Affidavits [as described for in paragraph 2(iv) above] filed by all the parties pursuant to the order of Justice S.U. Kamdar directing the parties to file affidavits stating as to what transpired in court on 5th August 2005 and prior thereto and their respective Counsel appearing for the rival parties have in no uncertain terms confirmed the fact of the passing of the Consent Order;

viii) The Petitioner took out a Notice of Motion No. 668 of 2006 [Page No. 1 of Volume 1] in which he has sought to set aside the order dated 5th August 2005.

ix) The Petitioner appealed against the rejection of the Notice of Motion No. 668 of 2006 and in the appeal memo he has once again challenged the order dated 5th August 2005 treating the same as an order of the Court [Order in Appeal at page No. 1 of Compilation of Orders and Documents].

x) Parties have acted pursuant to the Decree and altered their positions irretrievably.

None of the above procedures/events were possible or permissible in law had the order of 5th August 2005 not been a Consent Order passed by the Court.

31. The conduct was also referred by the Applicant in the following words:-

9) It is quite obvious that the Petitioner is clutching at straws by contending that the order dated 5th August 2005 was not passed by the Court with the consent of all parties. The Petitioner's conduct in this regard cannot be ignored namely:

i) to wriggle out of the said order he first blames the court by alleging that the learned Judge pressurized him into giving his consent;

ii) when faced with contempt proceedings at the instance of the court (still pending) he retracts by saying that he was pressurized by his lawyers;

iii) he then challenges the said order by wrongly moving the same court to have it set aside. When this challenge fails he appeals to the Appeal Court. All along in his pleadings he refers to the said order as a 'Consent Order';

iv) when pursuant to the Appeal courts order, the matter is agitated at the instance of Respondent No. 2 before Justice R.S. Dalvi, the Petitioner files a praecipe belatedly questioning the Ld. Judge's propriety in hearing the case. This caused the Ld. Judge to recuse herself from the case [Order dated 9th April 2012 tendered across the Bar].

32. The learned senior counsel Dr. Virendra Tulzapurkar opposing the Motion, has also read and referred various documents to point out the merits/the contents of the order and the way in which impugned order was passed or alleged to have been passed, to justify their submission that it was never be treated as consent order and/or judgment as it was never finalized and signed by the parties or their Advocates prior to the dictation of the order in open court and/or even thereafter.

33. The contention was raised that this cannot be treated even as a Judgment as contemplated under Section 2(9) of CPC.

34. The learned Senior counsel appearing for the Applicant in support of the motion read and referred and made their submission referring to the conduct, as well as, the documents on record to show that, in the present facts and circumstances as both the parties have actually acted upon, now cannot be permitted to deny the consent terms and therefore, what remains is that this Court to affix the signature so that the matter can proceed further. This rival contention itself means that the Court before signing/affixing the signature, as prayed, required to decide and/or reconsider the rival contention on merits of the matter also. This itself means there is dispute and/or objection of various kinds even on merits of the matter. It is not a simple case of affixing of the signature on a pronounced judgment/order by a predecessor Judge because, as noted the parties are still objecting and not willing to give any consent for affixing such signatures. The Court, therefore, as no provision is pointed out and considering the averments made and the scope of notice of motion and the prayers so raised, will not be in a position to adjudicate the same. The remedy is due trial by the Court on the due proceedings if initiated. The scope in the averments so raised is totally limited and therefore, I am not inclined to accept the case of the learned senior counsel Mr. Jagtiani appearing for the Applicant in support to pass order as prayed in terms of prayer clauses. However, as I am not in position to adjudicate any merits of the contentions so raised by the parties, there is no question of deciding the same in this proceeding. The remedy is elsewhere. These observations are only for deciding this matter.

No question of signature by the predecessor Judge as it was not pronounced by him.

35. It is relevant to note there cannot be any dispute that all the rules, procedures are hand made of justice. But still all these commercial facts unless decided, the affixing of signature by the predecessor Judge as contended is impermissible. Such affixing of the signature will not make the Judgment/order binding as per the C.P.C. Itself in the circumstances.

36. The reliance is made by the learned counsel appearing for the Applicant in support of their motion on the various provisions of CPC, specifically O-20 R-1, 2, 3 and 8 read with Sections 151 and 152 of the CPC by referring to the judgments, in my view, are of no assistance. There is no direct provision under the CPC by which the predecessor Judge shall and/or bound to affix the signature in such matter and in a situation where the earlier Judge, after hearing both the parties, in the open Court recorded certain consent terms and dictated the order and/or pronounced the impugned consent order. The situation so contemplated under O-20 R- 1, 2, 3 and 8 are totally different.

37. The invocation of provision of Sections 151 and 152 and such other provisions, are also of no assistance. The procedure and the concept of signed judgment as contemplated under Section 2(9)(14), Section 33, O-20 R-1 to 8 and O-23 of CPC, itself prescribed and provided what can be treated as a final and binding consent Judgment and/or order. Once it is signed after pronouncement, even the Judge cannot altered the Judgment/order without the application and/or procedure as prescribed under the law, by the parties and by giving notices to the concerned person/parties. This itself contemplates that the dictation and pronouncement of judgment/order in open Court itself is not sufficient to proceed by any person concerned by treating the same as valid Judgment and/or order as contemplated under the law unless signed by the concerned Judge, subject to the correction and/or addition if any in chamber or in Court, if typed and made available in the open Court. The office also just cannot rely and/or proceed on the basis of such open Court pronouncement of judgment and order unless it is duly signed and dated by the concerned learned Judge. If it is not signed, I am inclined to take a view that such order and judgment cannot take effect specifically when the situation like this where a party is objecting even on merit of the impugned order as recorded above. It is the case where both the parties, though there was no signature at the relevant time and proceeded further, even partially, yet not ready and willing to give their consent to treat the consent order to be the consent order/Judgment. No one can compel them to do so.

To sign the consent Judgment/order is no ministerial act. All stages are interlinked and important.

38. It is settled that even if there is a consent order and/or decree, in a given case a party can invoke appropriate proceedings to challenge the same. There is no bar. The provisions so read and referred by the learned counsel appearing for the parties in support of the motion shows and contemplated the existence of the signature after pronouncement of order/Judgment by the Judge. Even assume for a moment that O-20 R- 1, 2, 3 and/or similar procedures are not mandated and/or directory in nature, still in a situation like this, when the parties are not willing to accept the consent order after having knowledge about the missing signature of the Judge, who has pronounced the order, I am not inclined to accept, as rightly contended by the learned senior counsel appearing for the Petitioner opposing Respondent No. 2's motion, that affixing signature by other Judge once the Judgment is pronounced in the open Court by another Judge, is not a mere formality and/or ministerial act in the present facts and circumstances of the case.

39. In view of above, it is necessary to note that the Judgments so cited by the learned counsel appearing for Respondent No. 2, as quoted above, are of no assistance, considering the facts and circumstances of the case. The provisions of law so referred and decided in those judgments and even otherwise, need no further discussion. All the judgments so cited in no way deal with the aspects like this. The subsequent Judge/predecessor, in such circumstances, in my view, and as no specific provisions referred and pointed out, signed/affixed such impugned consent order, stating it to be mere formalities and/or ministerial act. Those cases are distinct and distinguishable on facts itself.

The litigants should not suffer-only the valid and binding order binds all.

40. There cannot be dispute with regard to the proposition that no litigants should be prejudiced by an act of the Court. Section 152 of CPC empowers to correct its own error in judgment/decree and/or order from any accidental slip and/or omission. The Court, therefore, in the facts and circumstances can invoke inherent power and pass such order in the interest of justice. In the present facts and circumstances, however, as there are serious disputes with regard to the various aspects including contents/merits of the consent terms and also the manner in which the consent terms was prepared and pronounced in open Court and as those averments as required detailed trial and inquiry, I am declined to invoke even the inherent power as sought to be contended in support of the motion.

41. It was partly executed also. The legality and validity of the consent order dated 5.8.2005, just cannot be gone into in this proceeding, but fact remains that the binding decree should follow the signed Judgment. But in the present case, admittedly, the judgment/order if also signed, there was no question of preparing the decree by the concerned officers as provided under R-300 of the Bombay High Court (Original Side) Rules, on the basis of authenticated copy or without verifying the actual signed copy of the Judgment and/or certified copy of the Judgment. The decree if prepared and proceeded, that itself cannot be the reason now to affix the signature as prayed in the present motion. I am not inclined to accept, in the present facts and circumstances, that this is just a mere ministerial formalities. The Judge/predecessor, cannot sit and/or decide the impugned order on its merits as an Appellate Court.

42. So far as the prayer clause (b) is concerned, in view of above, and as there is a serious dispute with regard to the consent terms in writing and/or not in writing. Admittedly the Judgment was pronounced after taking suggestions from the counsel/parties present in the Court, this itself means the terms and conditions were not crystalized finally, but it were under discussion and the Court accepted the suggestions and recorded the order in the open Court which was subject to corrections and in fact remained to be signed. Assume for a moment that the judgment/order was pronounced in the open Court after taking suggestions from the parties/counsel, yet, unless both the parties accept the consent terms and unless the learned Judge who has dictated in the open Court, signed the same, I am not inclined to accept that such consent terms/order can be stated to be final and binding written consent terms. Therefore, the Predecessor Judge has no option but to sign/affix the signature. It was admittedly not signed by the parties or the Advocates after recording of the terms and nor even by the Judge. Therefore, there is no question of granting any relief, as prayed in terms of prayer clause (b) also. In fact, it is contradictory and inconsistence with the basic averments and the other prayer clause itself. If there are consent terms on record as per the Applicant and the decree was passed accordingly, there is no question of passing a fresh decree and/or order based upon the alleged terms and conditions.

Caution Notice for office - uploading-drawing decree.

43. A computer generated copy needs no signature to act upon. The inter-net and the computer technology and it's related aspects work on modern technology. It is governed and controlled by particular law and regulations and related instructions. The uploading of any order/judgment by the concerned is subject to due verification, authentication and instructions, apart from original signed judgment/order. Unless it is duly signed, there is no question of uploading on High Court inter-net site. Once it is uploaded, the presumption is that the computer generated copy is like original signed copy. The concerned in-charge/officer therefore just cannot upload the uncorrected, unsigned orders/judgment. The pronouncement of order/judgment on the date is one stage. It follows by typing/transcription by the Steno/typist. After correct, some deletion or addition of the words & lastly the signature of the Judge. This makes the complete written/pronounced judgment. Therefore, the pronouncement in open Court, that itself, cannot be the signalled to proceed with the execution of the order, or drawing of decree, unless and/or specifically directed and/or specially permitted. The learned Judge was available for long time. The contempt notices were issued by the same Judge on this issue itself. No steps taken to get lacuna removed/corrected at the relevant time.

44. Therefore, taking over all view of the matter, the present Notice of Motion is dismissed. No costs. The parties still at liberty to settle the matter, as dispute is between the family members. The learned counsel appearing for Respondent No. 2 (the Applicant), considering the fact that order dated 5 August 2005 has been in force till date and the decree was also drawn, apart from execution proceedings initiated, submitted to stay the effect and operation of this order. In view of this, I am inclined to stay the effect and operation of the order passed today for six weeks.

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