Counsel for respondents contended that
application for Speaking to Minutes or for
rectification of the alleged error should have been
made before the same Presiding Officer. It is not
possible to accept the submission made by the
learned counsel, since after the pronouncement of
the judgment, the learned District Judge or the
Lower Appellate Court became functus officio, and
then there is no regulatory provision under Civil
Procedure Code to enable the Lower Appellate Court
to accept any such application for
rectification/speaking to minutes as contended by
Mr. Khapre. I am well supported in this view by
the decision of the Apex Court in the case of State
Bank of India & others Vs. S.N. Goyal [(2008) 8 SCC
92]and I quote the following extract from paras 26,
27 and 28 thereof:-
It is true that once an
authority exercising quasi-judicial
power takes a final decision, it cannot
review its decision unless the relevant
statute or rules permit such review.
But the question is as to at what stage
an authority becomes functus officio in
regard to an order made by him. P.
Ramanatha Aiyar s Advanced Law Lexicon
(3rd Edn., Vol.2, pp.1946-47) gives the
following illustrative definition of
the term functus officio :
Thus a judge, when he has
decided a question brought before
him, is functus officio, and
cannot review his own decision.
Black s Law Dictionary (6th
Edn., P 673) gives its meaning as
follows:
Having fulfilled the
function, discharged the office,
or accomplished the purpose, and
therefore of no further force or
authority.
We may first refer to the
position with reference to civil
courts. Order 20 of the Code of Civil
Procedure deals with judgment and
decree. Rule 1 explains when a judgment
is pronounced. Sub-rule (1) provides
that 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. Sub-rule (3) provides
that the judgment may be pronounced by
dictation in an open court to a
shorthand writer [if the Judge is
specially empowered (sic by the High
Court) in this behalf]. The proviso
thereto provides that where the
judgment is pronounced by dictation in
open court, the transcript of the
judgment so pronounced shall, after
making such corrections as may be
necessary, be signed by the Judge,
bear the date on which it was
pronounced and form a part of the
record. Rule 3 provides that 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. Thus, where a
judgment is reserved, mere dictation
does not amount to pronouncement, but
where the judgment is dictated in open
court, that itself amounts to
pronouncement. But even after such
pronouncement by open court dictation,
the Judge can make corrections before
signing and dating the judgment.
Therefore, a Judge becomes functus
offcio when he pronounces, signs and
dates the judgment (subject to Section
152 and power of view). The position
is different with reference to quasijudicial
authorities. While some quasijudicial
tribunals fix a day for
pronouncement and pronounce their
orders on the day fixed, many quasijudicial
authorities do not pronounce
their orders. Some publish or notify
their orders. Some prepare and sign the
orders and communicate the same to the
party concerned. A quasi-judicial
authority will become functus offcio
only when its order is pronounced, or
published/notified or communicated (put
in the course of transmission) to the
party concerned. When an order is made
in an office noting in a file but is
not pronounced, published or
communicated, nothing prevents the
authority from correcting it or
altering it for valid reasons. But once
the order is pronounced or published or
notified or communicated, the authority
will become functus officio. The order
dated 18-1-1995 made on an office note,
was neither pronounced, nor
published/notified nor communicated.
Therefore, it cannot be said that the
appointing authority became functus
officio when it signed the note dated
18-1-1995.
Hence I answer the said Question No.4 in
affirmative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT NAGPUR.
Second Appeal No. 340 of 1999
M/s. Hindustan Petroleum Corporation
Ltd.,
Versus
Sau. Nivedita wife of
Pritamsingh Jain,
CORAM : A.B.CHAUDHARI, J.
Date : 20th March, 2014.
Citation;2014(5) ALLMR 270
Read Original judgment here;click here
01. Second Appeal No. 340 of 1999 was filed by
the Petroleum Company M/s. Hindusthan Petroleum
Corporation Ltd., while Second Appeal No. 356 of
1999 was filed by M/s. Greenland Agencies
[defendant no.2] and M/s. Onkarmal Rungta & Sons
[defendant no.3]. The defendant no.2 is the sister
concern of defendant no.3 and defendant no.2 is
running a tea stall in the portion of the suit land
owned by the respondent-landlady Sau. Nivedita
Jain.
02. The original owner of the suit plot
Rukhminibai Goenka executed a Registered Lease-Deed
[Exh.82] on 15th July, 1964 in favour of M/s.
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Caltex [India] Ltd., for a period of ten years
beginning from 1st October, 1962 to 30th September,
1972. On 16th October, 1965 [Exh.85], she gifted
the suit property to Mrs. Nivedita Jain the
respondent landlady herein. On 9th August, 1978, a
quit notice [Exh.90] was issued by her to the
appellant Hindusthan Petroleum Corporation Ltd.,
terminating the tenancy by the end of 30th
September, 1978. But, according to the appellant,
she continued to accept the rent beyond 30th
September, 1972 till 31st May, 1979, i.e., even
after the quit notice [Exh.90] was issued. By Exh.
92 dated 30th June, 1979, quit notice was served
terminating the tenancy with effect from 31st July,
1979. On 6th August, 1979, the landlady filed
Regular Civil Suit No. 302 of 1979 in the Court of
Civil Judge [Senior Division], Akola. On 7th
September, 1985, i.e., almost six years after the
suit was filed, the landlady led her evidence and
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examined witnesses from time to time till 15th
January, 1987, and on 15th January, 1987, she filed
a Pursis [Exh.101] closing her evidence. On that
date, by application [Exh.142], the appellant
applied for adjournment, which was granted till 3rd
February, 1987, on which date the Presiding Officer
was on leave. On 25th February, 1987, the appellant
applied for adjournment, which was granted as a
last chance with cost of Rs.25/-. Thereafter, on
20th March, 1987, by application [Exh.144], the
appellant applied for adjournment on the grounds
that its counsel was suffering from high blood
pressure and the witness Mr. Pillai, who was to
come from Coimbtore, was unable to attend the Court
and accordingly a telegram was received to ask for
adjournment for near about a month, namely 19th of
the next month. The application was rejected by
the Trial Judge and thereafter on 1st December,
1987, the Judgment and Decree was passed.
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03. On 28th April, 1988, the appellant
Hindusthan Petroleum Corporation filed an appeal
bearing Regular Civil Appeal No. 132 of 1988 before
the District Judge, Akola, who heard the same on
4th February, 1999 and pronounced the Judgment on
30th June, 1999, i.e., after four months and
twenty-six days. The Second Appeal was filed in
this Court, which was admitted by this Court on
19th December, 2000. The C.P. & Berar Rent Control
Order, 1949, pending the lis, was amended on 27th
June, 1989, by including an open plot and
thereafter on 27th October, 1989, another
amendment was made. As a result, the amendment
application to that effect was moved before the
District Judge in appeal.
Arguments :
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04. The counsel for both the parties appeared
before me and then stated that these Second Appeals
were finally heard earlier, but the judgment could
not be delivered. As a result, the appeals
remained pending for fourteen years in this Court.
05. The counsel for the respondent-landlady
vehemently argued that the suit was filed in the
year 1979, and it is over a period of thirty-four
years now that the landlady is unable to get any
relief. The counsel for the appellant/s in both
the cases forcefully argued that denial of
opportunity by the Trial Court by rejecting the
application [Exh.144] for adjournment to lead
evidence of defendant-appellant-HPCL completely
gagged the defendant from placing its case before
the Trial Judge by oral as well as documentary
evidence. It is not that the appellant-defendant -
Corporation was habitual in asking for adjournments
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for leading evidence, as can be seen from the
record and proceedings and, therefore, the counsel
for the respondent-landlady ought not to have
objected to the last adjournment application [Exh.
144] and the Trial Court should not have rejected
that application, and instead could have given a
time-bound direction to the defendant for
production of evidence rather than going ahead with
delivering the judgment and decree. According to
the counsel for the appellant, therefore, period of
thirty-four years spent in the litigation is not
because of the fault of the appellant, but because
the respondent no.1 opposed the prayer for leading
the evidence of the defendants and the Trial Judge
rejected the appellant s request for adjournment.
According to the learned counsel for the appellant,
the Lower Appellate Court heard the appeals and
closed the same for judgment on 4th February, 1999
and delivered the judgment on 30th June, 1999,
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i.e., after four months and 26 days, when the
Supreme Court in the case of Joint Commissioner of
Income Tax, Surat Vs. Saheli Leasing & Industries
Ltd. [(2010) 6 SCC 384] fixed the period of three
months for delivering a judgment. That apart,
according to the counsel for the appellant, the
point about wrong rejection of application [Exh.
144] though was made a fulcrum of the argument of
the appellant was totally forgotten by the Lower
Appellate Court while writing the Judgment and
pronouncing the same after four months and 26 days.
That was a major point which was required to be
answered. But that did not happen because of time
gap of four months and twenty-six days for
declaring the judgment. To substantiate his
argument, learned Senior Adv. Mr. M.G. Bhangde also
relied on the reported judgment of the Suprme Court
in the case of Urviben Chiragbhai Seth Vs. Vijay
Bhai Shambhubhai Joranputra & others [(2011) 12 SCC
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582].
06. Per contra, learned Adv. Mr. Khapre for the
respondent-landlady relied on various judgments,
which I quote hereunder:-
[a] Soni Dineshbhai Manilal & others Vs.
Jagjivan Mulchand Chokshi With Jagjivan
Mulchand Chokshi Vs. Soni Dineshbhai
Manilal & others [AIR 2008 SC 887],
[b] Ram Bali Vs. State of U.P. [AIR 2004 SC
2329 (1)],
[c] Maya Devi (deceased by L.Rs.) V. Smt.
Raj Kumari Batra (deceased by L.Rs.) &
others [AIR 2011 SC 8(Supp) 417],
[d] Ashwinkumar K. Patel Vs. Upendra J.
Patel & others [AIR 1999 SC 1125], and
[e] State of U.P. & others Vs. Lalji Tando
(Dead) [AIR 2004 SC 32].
Mr. Khapre then argued that Section 105 of Civil
Procedure Code provides for setting up a specific
objection and challenge to order like order below
Exh.144 in the Memo of Appeal, in the absence of
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which, order below Exh.144 became final and hence
that ground cannot be raised. He then argued that
assuming the point about denial of opportunity
qua Exh.144 was raised, since the same is not to be
found anywhere in the impugned Judgment of the
District Judge, it must be treated as having been
abandoned by the appellant.
07. Mr. Khapre then continued to argue that it
was for the appellant to file an application for
rectification of the error in the judgment to that
effect, if any, after the pronouncement, since the
matter was fresh in the Court s mind, and having
failed to do so, now the appellant cannot be
allowed to turn around. At any rate, since thirtyfive
years have passed in the litigation, the case
does not warrant remand to the Lower Appellate
Court. The counsel then argued that no fruitful
purpose would be achieved if the matter is
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remanded. In support of the said contention going
on merits, he submitted that even if it is taken to
be true that the period of five years could be the
extended period of lease, the same again would
stand expired by 30th September, 1977. Then nothing
remained for the appellant to adduce the evidence.
Lastly, in the alternative, Mr. Khapre argued that
if at all this Court comes to the conclusion that
any opportunity was required to be given for
leading evidence to the defendant, the lone issue
may be referred to the Trial Judge for taking the
evidence on the point of renewal of lease and the
finding should be called back and these appeals
should be kept pending.
08. Learned Senior Adv. Mr. Bhangde, in reply,
argued that Ground No.5 was specifically raised in
relation to application [Exh.144] that no
opportunity was given to the appellant no.1 to
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examine the witnesses which is enough, if read with
the prayer in which it is alternatively prayed for
remand in that context. He then argued that the
question of abandonment of a point would not arise,
since the point was argued before the Lower
Appellate Court, but the Court failed to deal with
the same in the Judgment, and at any rate, Lower
Appellate Court was under a duty to examine the
entire record and find out whether there was denial
of the opportunity of leading evidence to the
defendant. Distinguishing the judgment about making
an application to the same learned District Judge,
Mr. Bhangde argued that the matter has to be
fresh in the mind of the learned Judge and at any
rate, the said issue would not arise now if the
point was really not dealt with in the judgment
impugned.
09. Upon hearing learned counsel for the rival
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parties, earlier this Court had indicated that this
Court will have to first decide whether the
proceedings of appeal in the Lower Appellate Court
were required to be remanded or whether this Court
should itself decide these Second Appeals on
merits. The Second Appeals were accordingly posted
further for hearing and the arguments were heard
on all the questions simultaneously.
10. After hearing the counsel for the parties
at length, I re-frame the Substantial Questions of
Law, inclusive of the said Preliminary Points as
under:-
[1] Whether the Trial Court
[Civil Court] committed
an error in rejecting
the application [Exh.144]
for adjournment filed
by the appellant-defendant
for adducing its evidence,
and whether any prejudice
is caused to the defendant;
and whether non-consideration
of the said ground in the
Judgment delivered after
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four months and twenty-six
days by the Lower Appellate
Court vitiates the
Judgment of the Lower
Appellate Court? ... Yes.
[2] Whether Section 105 of
Civil Procedure Code
speaks of the requirement
to specifically challenge
any interlocutory order
in the prayer to the
Memo of Appeal or merely
setting forth such
ground of objection in the
Memo of Appeal is
sufficient and whether
the Lower Appellate Court
is entitled to examine the
validity of any such
interlocutory order
itself to do justice to
the parties? ... Sec. 105, CPC,
contemplates only
setting forth the
ground of objection
in the Memo of
Appeal by the
appellant and a
specific prayer to
challenge such order
in the Prayer Clause
may not be necessary.
The Lower Appellate
Court, however, is
entitled to examine
the validity of any
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such orders as
contemplated by
Section 105, CPC.
[3] Whether the principle
of sanctity of
recitals in court
proceedings applicable
to the Courts of
Record can be stretched
to the proceedings
of the District Court/
Judge or Tribunal, and
in the instant case,
about the controversy
whether arguments on
Exh.144 were advanced
before the District
Judge or not, since
there is no reference in
the Judgment of the
District Judge about
it? ... The principle of
sanctity of recitals
in the court
proceedings is
applicable only
to the Courts of
Record , i.e.,
High Court [under
Article 215] and
the Supreme Court
[under Article 129].
The principle does
not extend to the
court proceedings
in other Courts.
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[4] Whether upon
pronouncement of
Judgment on 30th
June, 1999, the
Lower Appellate Court
became functus officio
and could it have
entertained any
application for
rectification/speaking
to minutes/clarification
about arguments on
application
[Exh.144]? ... Yes. The Court became
functus officio. No
Such application
could have been
entertained
except as provided
by [Section 152, or
Review], Civil
Procedure Code.
[5] What Order? ... Regular 302/1979 is
remanded to the
learned Trial Judge
[Civil Judge] for
a fresh trial.
11. Answer to Question No. 1 :-
Heard learned counsel for the rival
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parties. Perused the entire record and several
judgments cited by the parties. It appears from
the record that the plaintiff-landlady, after
institution of the suit in 1979, commenced her
evidence and examined four witnesses for the period
from 7th September, 1985 till 15th January, 1987,
and on the last date, namely 15th January, 1987, by
the Pursis [Exh.101], she closed her case. On the
same date, the counsel for the appellant-HPCL filed
an application [Exh.142] praying for adjournment of
a month and the counsel for the plaintiff gave
reply to that application, stating that the
defendant no.1 should have kept its evidence ready,
as if the plaintiff had already informed that she
would close her case on 15th January, 1987 and the
defendant no.1 should bring the witnesses on that
date. Court granted adjournment till 3rd February,
1987, on which date Presiding Officer of the Court
was on leave. The case was then posted to 25th
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February, 1987, on which date the counsel for the
appellant stated that he wanted to examine a
witness on the next date, and prayed for a month s
time. The counsel for the plaintiff opposed the
application, stating there was no sufficient cause.
The Court granted the application by imposing cost
of Rs. 25/-. On the next date, namely 20th March,
1987, an application for adjournment was filed on
the ground that the counsel for the appellant was
suffering from blood pressure and was unable to
attend the court, while the witness Mr. Pillai, who
was to come from Coimbtore, was unable to come and
in support of the same, a copy of the telegram was
placed on record about Mr. Pillai, in which it was
stated that next date, namely 19th should be taken.
The counsel for the plaintiff opposed the
application and the learned Trial Judge referring
to earlier adjournment applications [Exhs.142 and
143], stated that from January, 1987, sufficient
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time was given and even no summons was taken from
the Court and hence rejected the application, thus,
closing the case of defendant and then proceeded
further.
12. Thus, above is the factual background from
which it is amply clear that the appellantdefendant
was effectively granted only one
adjournment under Exh.143, i.e., on 25th February,
1987 with cost of Rs. 25/-, and the second
adjournment by application [Exh.144] dated 20th
March, 1987 for bringing the witnesses on behalf of
the appellant was rejected. Exh.142 application
could not be considered as effective adjournment
because on 15th January, 1987 itself, i.e., after
two-and-half-year, plaintiff closed her evidence
without intimation that defendant should keep its
witnesses ready on 15th January, 1987. The
respondent-plaintiff took two years and four months
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for examining her witnesses from 7th September,
1985 till 15th January, 1987, but still had such a
serious objection to the appellant for leading
evidence, who was granted only one effective
adjournment [Exh.143], that too with a cost of Rs.
25/-.
13. Now, upon examining application [Exh.144]
dated 20th March, 1987, which is the crucial date,
I find that the adjournment was sought on the
ground that the Advocate for the appellant was down
with blood pressure, while the witness Mr. Pillai
was unable to attend the Court and, therefore, only
second adjournment was sought. [See Raj Ahmad Vs.
State of UP [(1999) 6 SCC 391, Counsel s illness is
a sufficient cause for adjournment]. The Court
referred to the fact that no summons was taken by
the appellant, which, in my opinion, was wholly
irrelevant, since the appellant repeatedly stated
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that it wanted to bring its own witness. The Court
also referred to the earlier adjournment
applications [Exhs.142 and 143], as if Exh.142
dated 15th January, 1987 was the effective
adjournment at the behest of the appellant. Exh.
142 was was made on the date on which the plaintiff
closed her case after examining witnesses for over
a period of two years and four months and,
therefore, Exh.142 in substance was not an
adjournment application because plaintiff closed
her case on that very day, namely 15th January,
1987. It was only one effective adjournment [Exh.
143], which was relevant. But then it was wholly
unjust and punitive to reject the application [Exh.
144], since good and sufficient grounds were
disclosed, namely illness of the Advocate and
inability of the witness to come to Akola from
Coimbtore. In fact, Exh.144 was the only second
effective adjournment sought for, which was
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refused. Thus, in the Trial Court itself, it is
the plaintiff who acted most unreasonably by
opposing the application [Exh.144], even though the
ground about illness of Advocate was mentioned and
was not disputed. The learned Trial Judge, instead
of rejecting the application [Exh.144], could have
taken resort to other powers available to the
Court, but to shut the doors for the defendant for
all times to come to lead evidence in defence, only
because second adjournment was asked for, that too
for undisputed and good and sufficient reasons was
to deny the opportunity of defending or contesting
the suit effectively apart from being punitive. I,
therefore, hold that rejection of application [Exh.
144] was arbitrary, illegal and punitive.
The next argument made by learned Adv. Mr.
Khapre that no prejudice is shown to have been
caused to the appellant-defendant due to denial of
a chance to lead evidence will have to be rejected
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in the light of above tale-telling facts. When the
defendant was not allowed to lead evidence at all
for no fault, or without giving any reasonable
opportunity, the prejudice caused to the defendant
must be held to be writ large. There is no separate
methodology for proving prejudice in the aforesaid
factual matrix.
14. Answer to Question No. 2 :-
The next submission made by Mr. Khapre
based on Section 105, Civil Procedure Code, again,
in my opinion, is misconceived. Section 105 of
Civil Procedure Code reads thus:-
105. Other orders.- (1) Save as
otherwise expressly provided, no appeal
shall lie from any order made by a Court
in the exercise of its original or
appellate jurisdiction; but, where a
decree is appealed from, any error,
defect or irregularity in any order,
affecting the decision of the case, may
be set forth as a ground of objection in
the memorandum of appeal.
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(2) Notwithstanding anything
contained in sub-section (1), where any
party aggrieved by an order of remand
from which an appeal lies does not
appeal therefrom, he shall thereafter be
precluded from disputing its
correctness.
15. Perusal of Section 105 above shows that
Section 105 provides for a prohibition in filing
appeal from order made by a Court in exercise of
its original or appellate jurisdiction. The object
of this provision is to prevent any party from
repeatedly challenging the interlocutory orders or
other orders under the provisions of the Code in
order to curb delay. The second part of Subsection
(1) of Section 105, however, shows that
when a decree is appealed from; any challenge to
wrong or illegal orders/interlocutory orders made
in exercise of original or appellate jurisdiction
during the proceedings affecting the ultimate
decision of the case may be set forth as a ground
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of objection in the Memorandum of Appeal. This
clearly shows that it was not necessary to
challenge the order refusing adjournment and could
well be set out as a ground of objection in the
Memorandum of Appeal. The word used is may ,
meaning thereby that even if the ground is not set
out, the appellate court is not powerless to find
out if there is an error, irregularity or defect
in such order in the first place and then correct
the errors etc., to do justice. Further, as
contended by Mr. Khapre, there is no need to make
the prayer to challenge the order specifically in
the Memorandum of Appeal or in the prayer clause of
the appeal. What is stated in the provision is
that the appellant may set out the ground of
objection and nothing more. Even otherwise, I find
in para 5 of the Memo of Appeal the ground of
objection and the prayer which read thus:-
5. The learned Trial Court erred
in not granting opportunity to the
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appellant no.1 to examine its witness.
Prayer:It is, therefore, most humbly
prayed that this appeal be
kindly allowed with costs by
dismissing the plff s suit with
costs throughout in its
entirety, and in any event,
alternatively the case be
kindly remanded to Trial Court,
for trial as per law to the
Court of competent
jurisdiction, and to give an
opportunity to the parties to
make their submissions and lead
evidence;
Hence the answer to Question No.2 is as
above.
16. Answer to Question No. 3 :-
The next submission made by Mr. Khapre is
that the argument in relation to application [Exh.
144] that the appellant was denied opportunity of
leading evidence must be held to have been
abandoned, since it has not to be found in the
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judgment recorded by the Lower Appellate Court.
According to him, since the judgment does not show
that such an argument was advanced, the record and
proceedings of the District Court/Judge must be
held to be correct by invoking the principle of
sanctity of Record of the Courts. At any rate, he
then argued that the appellant was never prevented
from making an application for speaking to minutes
to the District Judge or rectification of the
error, if any, in respect of the argument about
application [Exh.144], so that the learned Lower
Appellate Court could have, if the appellant was
really right, given his view. He, therefore,
submitted that the appellant cannot be allowed to
challenge the sanctity of the record of the
District Court/District Judge, including the
Judgment. On the contrary, Mr. Bhangde, learned
Senior Adv., for the appellant, replied by citing
the decision of the Supreme Court in the case of
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Urviben Sheth [cited supra], and argued that no
such sanctity is contemplated in respect of the
record and proceedings of the District Court, and
at any rate, according to him, as a Lower Appellate
Court, it was the duty of the Court to examine the
entire record and to find out whether order below
Exh.144 was legal, correct and proper, since that
was a Court of facts entitled to assess the
validity of the order below Exh.144.
17. I have given careful consideration to the
last issue raised before me by counsel for both the
parties. Before going to the said question, it
would be appropriate to quote para 5 from the
Judgment of the Supreme Court in case of Joint
Commissioner of Income Tax, Surat [cited supra],
which reads thus:-
5. We, therefore, before proceeding
to decide the matter on merits, once
again would like to reiterate few
guidelines for the courts, while
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writing orders and judgments to follow
the same. These guidelines are only
illustrative in nature, not exhaustive
and can further be elaborated looking
to the need and requirement of a given
case:
(a) It should always be kept
in mind that nothing should be
written in the judgment/order,
which may not be germane to the
facts of the case; it should have
a co-relation with the applicable
law and facts. The ratio decidendi
should be clearly spelt out from
the judgment/order.
(b) After preparing the
draft, it is necessary to go
through the same to find out, if
anything, essential to be
mentioned, has escaped discussion.
(c) The ultimate finished
judgment/order should have
sustained chronology, regard being
had to the concept that it has
readable, continued interest and
one does not feel like parting or
leaving it in the midway. To
elaborate, it should have flow and
perfect sequence of events, which
would continue to generate
interest in the reader.
(d) Appropriate care should
be taken not to load it with all
legal knowledge on the subject as
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citation of too many judgments
creates more confusion rather than
clarity. The foremost requirement
is that leading judgments should
be mentioned and the evolution
that has taken place ever since
the same were pronounced and
thereafter, latest judgment, in
which all previous judgments have
been considered, should be
mentioned. While writing a
judgment, psychology of the reader
has also to be borne in mind, for
the perception on that score is
imperative.
(e) Language should not be
rhetoric and should not reflect a
contrived effort on the part of
the author.
(f) After arguments are
concluded, an endeavour should be
made to pronounce the judgment at
the earliest and in any case not
beyond a period of three months.
Keeping it pending for a long time
sends a wrong signal to the
litigants and the society.
(g) It should be avoided to
give instances, which are likely
to cause public agitation or to a
particular society. Nothing should
be reflected in the same which may
hurt the feelings or emotions of
any individual or society.
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The aforesaid are some of the
guidelines which are required to be
kept in mind while writing judgments.
In fact, we are only reiterating what
has already been said in several
judgments of this Court.
The aforesaid guidelines issued by the Apex Court
and in particular Guideline 5 [f] will have to be
pressed into service in the instant case.
Admittedly, the Judgment was pronounced by the
Lower Appellate Court after the lapse of four
months and twenty-six days after hearing the
arguments. The fact of the matter is that the
crucial ground about wrong rejection of
application [Exh.144] disallowing the defendant
from adducing any evidence was raised in the Memo
of Appeal, so also there is a prayer and,
therefore, there is a reason to believe that the
learned Lower Appellate Court forgot because of
lapse of period of four months and twenty-six days
to address on the said crucial point. That apart,
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I have myself perused the record of the Lower
Appellate Court and I find the following argument
by counsel for appellant was noted in the notes of
arguments taken by Lower Appellate Court dated 27/8
on record [back of page no.114] in the handwriting
of the learned Judge :-
Rohankar Adv., was ill. Application
was rejected. Chance was not given.
It clearly appears that Adv. Mr. Rohankar
for the appellant-defendant being ill, the argument
was made that the appellant-defendant should have
been given a chance. Thus, there is no doubt in my
mind that the said argument was advanced, but then
due to lapse of time in delivering the judgment,
the said crucial ground was left out. I am not,
therefore, prepared to accept the submission that
the said ground was abandoned at the arguments.
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The next question is of some significance.
The argument that principle of sanctity of record
must be extended to the Courts other the Courts of
Record must be turned down. As a matter of fact,
the Supreme Court in the case of Urviben Seth
[cited supra] has precisely answered the said
issue. With respect, I quote paras 10, 16, 17, 18
and 19 from the said judgment as under:-
10 The other ground which weighed
with the High Court is that the
statement recorded in the judgment of
the court cannot be contradicted by any
affidavit or any other evidence and in
coming to the said conclusion the High
Court relied on the judgment of this
Court in Daman Singh v. State of
Punjab.
16. The reliance placed by the High
Court on the judgment of this Court in
Daman Singh is rather misconceived. In
the said case, what this Court held was
when several points were raised in a
writ petition before the High Court,
and argument is confined to some
grounds or points, as other grounds are
considered by the counsel unworthy of
canvassing, thereafter the counsel
cannot make a grievance that other
grounds were not considered by the
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Court (see SCC p. 682, page 13).
17. The situation in this case is
not similar to the one pointed out in
Daman Singh. Here the High Court relied
on the principle of sanctity of a
record entered by a court and held that
what is recited in the court record is
sacrosanct. The High Court, in the
process, fell into an error by equating
the record of proceedings in a tribunal
with proceedings in a court of record.
Under our hierarchy of courts, a High
Court (under Article 215) and the
Supreme Court (under Article 129) are
recognized as courts of record. A Motor
Accident Claims Tribunal constituted
under the Motor Vehicles Act, 1988 is a
civil court of limited jurisdiction,
and is certainly not a court of record.
The infallibility of its formal record
is one of the earliest marks of a court
of record, but it has developed other
characteristics too (see A History of
English Law by W.S. Holdsworth, Vol.5,
p. 158).
18. In R. v. Aaron Mellor, it was
held:
We must consider the statement
of the learned Judge as absolute
verity and we ought to take his
statement precisely as a record
and act on it in the same manner
as on a record of court which of
itself implies an absolute
verity.
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This has been followed by this Court in
State of Maharashtra v. Ramdas Srinivas
Nayak.
19. Therefore, the principle of
sanctity of recitals in court
proceedings is available to a court of
record. This principle cannot be
stretched to the proceedings of a
tribunal. Unfortunately the High Court
failed to appreciate this.
It is, thus, clear that the said principle cannot
be extended to the courts other than the courts of
record, namely High Courts [under Art. 215] and
Supreme Court [under Art. 129]. Hence I answer the
Question No.3 as under:-
The principle of sanctity of recitals
in the court proceedings is applicable
only to the Courts ofRecord , i.e.,
High Courts [under Article 215] and the
Supreme Court [under Article 129]. The
principle does not extend to the court
proceedings in other Courts.
18. Answer to last Question No. 4 :-
Counsel for respondents contended that
application for Speaking to Minutes or for
rectification of the alleged error should have been
made before the same Presiding Officer. It is not
possible to accept the submission made by the
learned counsel, since after the pronouncement of
the judgment, the learned District Judge or the
Lower Appellate Court became functus officio, and
then there is no regulatory provision under Civil
Procedure Code to enable the Lower Appellate Court
to accept any such application for
rectification/speaking to minutes as contended by
Mr. Khapre. I am well supported in this view by
the decision of the Apex Court in the case of State
Bank of India & others Vs. S.N. Goyal [(2008) 8 SCC
92]and I quote the following extract from paras 26,
27 and 28 thereof:-
26. It is true that once an
authority exercising quasi-judicial
power takes a final decision, it cannot
review its decision unless the relevant
statute or rules permit such review.
But the question is as to at what stage
an authority becomes functus officio in
regard to an order made by him. P.
Ramanatha Aiyar s Advanced Law Lexicon
(3rd Edn., Vol.2, pp.1946-47) gives the
following illustrative definition of
the term functus officio :
Thus a judge, when he has
decided a question brought before
him, is functus officio, and
cannot review his own decision.
27. Black s Law Dictionary (6th
Edn., P 673) gives its meaning as
follows:
Having fulfilled the
function, discharged the office,
or accomplished the purpose, and
therefore of no further force or
authority.
28. We may first refer to the
position with reference to civil
courts. Order 20 of the Code of Civil
Procedure deals with judgment and
decree. Rule 1 explains when a judgment
is pronounced. Sub-rule (1) provides
that 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
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a day for that purpose of which due
notice shall be given to the parties or
their pleaders. Sub-rule (3) provides
that the judgment may be pronounced by
dictation in an open court to a
shorthand writer [if the Judge is
specially empowered (sic by the High
Court) in this behalf]. The proviso
thereto provides that where the
judgment is pronounced by dictation in
open court, the transcript of the
judgment so pronounced shall, after
making such corrections as may be
necessary, be signed by the Judge,
bear the date on which it was
pronounced and form a part of the
record. Rule 3 provides that 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. Thus, where a
judgment is reserved, mere dictation
does not amount to pronouncement, but
where the judgment is dictated in open
court, that itself amounts to
pronouncement. But even after such
pronouncement by open court dictation,
the Judge can make corrections before
signing and dating the judgment.
Therefore, a Judge becomes functus
offcio when he pronounces, signs and
dates the judgment (subject to Section
152 and power of view). The position
is different with reference to quasijudicial
authorities. While some quasijudicial
tribunals fix a day for
pronouncement and pronounce their
orders on the day fixed, many quasijudicial
authorities do not pronounce
their orders. Some publish or notify
their orders. Some prepare and sign the
orders and communicate the same to the
party concerned. A quasi-judicial
authority will become functus offcio
only when its order is pronounced, or
published/notified or communicated (put
in the course of transmission) to the
party concerned. When an order is made
in an office noting in a file but is
not pronounced, published or
communicated, nothing prevents the
authority from correcting it or
altering it for valid reasons. But once
the order is pronounced or published or
notified or communicated, the authority
will become functus officio. The order
dated 18-1-1995 made on an office note,
was neither pronounced, nor
published/notified nor communicated.
Therefore, it cannot be said that the
appointing authority became functus
officio when it signed the note dated
18-1-1995.
Hence I answer the said Question No.4 in
affirmative.
19. The next submission made by Mr. Khapre is
that because of lapse of long period of thirty five
years, instead of making a remand order, this Court
should frame an issue for allowing the defendant to
adduce evidence and then invite a finding from the
Trial Judge and till then to keep these appeals
pending before this Court cannot be accepted.
Still I have given anxious thought to what Mr.
Khapre, learned counsel contended. The reason is
that it is not possible to surmise at this stage
whether after the defendant adduces its evidence,
the plaintiff would require an opportunity to lead
further evidence or take such steps which are
available in law, or the defendant may require the
plaintiff or her witnesses for any other purpose
before Court. At the same time, it is not possible
to imagine what evidence the defendant should give
before the Trial Judge in its right to lead
evidence and that is why the submission made by Mr.
Khapre that there can be no evidence because the
extended lease also stood expired cannot be
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accepted. It is not possible for me to pre-judge
the issue as to what evidence would be led by the
defendant in support of its case. Nay, it would be
wrong to assume any such thing. That apart, I have
already held that the Second Appeals have remained
pending in this Court for the last fourteen years.
I have also found as a fact that because of
objections raised by the respondent-plaintiff, the
application [Exh.144] was illegally rejected. The
First Appeal before the District Court remained
pending for about eleven years. Looking to these
facts, though it is true that about thirty-five
years have been spent in the Court by the
plaintiff, it cannot be said that the appellantdefendant
HPCL is to be blamed. However, an
arrangement to decide the suit in a time-bound
programme can certainly be made by this Court. At
the same time, what I find there is hardly any
point in remanding the proceedings to the Lower
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Appellate Court, since I have rendered a
categorical finding that the application [Exh.144]
was illegally rejected and the defendant was denied
a chance of adducing its evidence. That being so,
the remand order cannot be made to the Lower
Appellate Court, but it will have to be made by
remanding Regular Civil Suit No. 302 of 1979 to the
first court, i.e., Trial Court [Civil Court].
Hence the following order:-
O R D E R
[a] Second Appeal Nos. 340 and 356 both of
1999 are partly allowed.
[b] Regular Civil Suit No. 302 of 1979 is
remanded to the learned Trial Judge for
a fresh trial.
[c] The defendants in both the suits are
given opportunity to lead their
respective evidence, if any, on or
before 6th May, 2014 and the Court shall
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45
not adjourn the proceedings for
recording the evidence beyond the said
date.
[d] In case the plaintiff wants to adduce
any evidence or re-examine the witness,
or as the case may be, the same shall
be done, of course, with opportunity to
the defendants according to law on or
before 30th June, 2014. Trial shall be
closed and the decision shall be
rendered by the learned Trial Judge on
or before 31st July, 2014.
[e] Liberty is reserved in favour of
respondent-plaintiff to take such steps
as are available in law for expeditious
disposal of the future appeals, if any.
[f] The appellant Hindusthan Petroleum
Corporation Ltd., in both the cases
shall continue to pay enhanced
occupation charges at the rate of Rs.
22,500-00 [rupees twenty-two thousand
five hundred only] per month as
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directed by this Court, till the
decision of suit after remand, and if
any arrears are not cleared, the same
shall be cleared by the next date.
[g] Parties to appear before the learned
Trial Judge on 11th April, 2014.
20. Steno copy of this order be supplied to the
parties as per rules.
JUDGE
-0-0-0-0-
|hedau|
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Print Page
application for Speaking to Minutes or for
rectification of the alleged error should have been
made before the same Presiding Officer. It is not
possible to accept the submission made by the
learned counsel, since after the pronouncement of
the judgment, the learned District Judge or the
Lower Appellate Court became functus officio, and
then there is no regulatory provision under Civil
Procedure Code to enable the Lower Appellate Court
to accept any such application for
rectification/speaking to minutes as contended by
Mr. Khapre. I am well supported in this view by
the decision of the Apex Court in the case of State
Bank of India & others Vs. S.N. Goyal [(2008) 8 SCC
92]and I quote the following extract from paras 26,
27 and 28 thereof:-
It is true that once an
authority exercising quasi-judicial
power takes a final decision, it cannot
review its decision unless the relevant
statute or rules permit such review.
But the question is as to at what stage
an authority becomes functus officio in
regard to an order made by him. P.
Ramanatha Aiyar s Advanced Law Lexicon
(3rd Edn., Vol.2, pp.1946-47) gives the
following illustrative definition of
the term functus officio :
Thus a judge, when he has
decided a question brought before
him, is functus officio, and
cannot review his own decision.
Black s Law Dictionary (6th
Edn., P 673) gives its meaning as
follows:
Having fulfilled the
function, discharged the office,
or accomplished the purpose, and
therefore of no further force or
authority.
We may first refer to the
position with reference to civil
courts. Order 20 of the Code of Civil
Procedure deals with judgment and
decree. Rule 1 explains when a judgment
is pronounced. Sub-rule (1) provides
that 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. Sub-rule (3) provides
that the judgment may be pronounced by
dictation in an open court to a
shorthand writer [if the Judge is
specially empowered (sic by the High
Court) in this behalf]. The proviso
thereto provides that where the
judgment is pronounced by dictation in
open court, the transcript of the
judgment so pronounced shall, after
making such corrections as may be
necessary, be signed by the Judge,
bear the date on which it was
pronounced and form a part of the
record. Rule 3 provides that 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. Thus, where a
judgment is reserved, mere dictation
does not amount to pronouncement, but
where the judgment is dictated in open
court, that itself amounts to
pronouncement. But even after such
pronouncement by open court dictation,
the Judge can make corrections before
signing and dating the judgment.
Therefore, a Judge becomes functus
offcio when he pronounces, signs and
dates the judgment (subject to Section
152 and power of view). The position
is different with reference to quasijudicial
authorities. While some quasijudicial
tribunals fix a day for
pronouncement and pronounce their
orders on the day fixed, many quasijudicial
authorities do not pronounce
their orders. Some publish or notify
their orders. Some prepare and sign the
orders and communicate the same to the
party concerned. A quasi-judicial
authority will become functus offcio
only when its order is pronounced, or
published/notified or communicated (put
in the course of transmission) to the
party concerned. When an order is made
in an office noting in a file but is
not pronounced, published or
communicated, nothing prevents the
authority from correcting it or
altering it for valid reasons. But once
the order is pronounced or published or
notified or communicated, the authority
will become functus officio. The order
dated 18-1-1995 made on an office note,
was neither pronounced, nor
published/notified nor communicated.
Therefore, it cannot be said that the
appointing authority became functus
officio when it signed the note dated
18-1-1995.
Hence I answer the said Question No.4 in
affirmative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT NAGPUR.
Second Appeal No. 340 of 1999
M/s. Hindustan Petroleum Corporation
Ltd.,
Versus
Sau. Nivedita wife of
Pritamsingh Jain,
CORAM : A.B.CHAUDHARI, J.
Date : 20th March, 2014.
Citation;2014(5) ALLMR 270
Read Original judgment here;click here
01. Second Appeal No. 340 of 1999 was filed by
the Petroleum Company M/s. Hindusthan Petroleum
Corporation Ltd., while Second Appeal No. 356 of
1999 was filed by M/s. Greenland Agencies
[defendant no.2] and M/s. Onkarmal Rungta & Sons
[defendant no.3]. The defendant no.2 is the sister
concern of defendant no.3 and defendant no.2 is
running a tea stall in the portion of the suit land
owned by the respondent-landlady Sau. Nivedita
Jain.
02. The original owner of the suit plot
Rukhminibai Goenka executed a Registered Lease-Deed
[Exh.82] on 15th July, 1964 in favour of M/s.
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Caltex [India] Ltd., for a period of ten years
beginning from 1st October, 1962 to 30th September,
1972. On 16th October, 1965 [Exh.85], she gifted
the suit property to Mrs. Nivedita Jain the
respondent landlady herein. On 9th August, 1978, a
quit notice [Exh.90] was issued by her to the
appellant Hindusthan Petroleum Corporation Ltd.,
terminating the tenancy by the end of 30th
September, 1978. But, according to the appellant,
she continued to accept the rent beyond 30th
September, 1972 till 31st May, 1979, i.e., even
after the quit notice [Exh.90] was issued. By Exh.
92 dated 30th June, 1979, quit notice was served
terminating the tenancy with effect from 31st July,
1979. On 6th August, 1979, the landlady filed
Regular Civil Suit No. 302 of 1979 in the Court of
Civil Judge [Senior Division], Akola. On 7th
September, 1985, i.e., almost six years after the
suit was filed, the landlady led her evidence and
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examined witnesses from time to time till 15th
January, 1987, and on 15th January, 1987, she filed
a Pursis [Exh.101] closing her evidence. On that
date, by application [Exh.142], the appellant
applied for adjournment, which was granted till 3rd
February, 1987, on which date the Presiding Officer
was on leave. On 25th February, 1987, the appellant
applied for adjournment, which was granted as a
last chance with cost of Rs.25/-. Thereafter, on
20th March, 1987, by application [Exh.144], the
appellant applied for adjournment on the grounds
that its counsel was suffering from high blood
pressure and the witness Mr. Pillai, who was to
come from Coimbtore, was unable to attend the Court
and accordingly a telegram was received to ask for
adjournment for near about a month, namely 19th of
the next month. The application was rejected by
the Trial Judge and thereafter on 1st December,
1987, the Judgment and Decree was passed.
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03. On 28th April, 1988, the appellant
Hindusthan Petroleum Corporation filed an appeal
bearing Regular Civil Appeal No. 132 of 1988 before
the District Judge, Akola, who heard the same on
4th February, 1999 and pronounced the Judgment on
30th June, 1999, i.e., after four months and
twenty-six days. The Second Appeal was filed in
this Court, which was admitted by this Court on
19th December, 2000. The C.P. & Berar Rent Control
Order, 1949, pending the lis, was amended on 27th
June, 1989, by including an open plot and
thereafter on 27th October, 1989, another
amendment was made. As a result, the amendment
application to that effect was moved before the
District Judge in appeal.
Arguments :
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04. The counsel for both the parties appeared
before me and then stated that these Second Appeals
were finally heard earlier, but the judgment could
not be delivered. As a result, the appeals
remained pending for fourteen years in this Court.
05. The counsel for the respondent-landlady
vehemently argued that the suit was filed in the
year 1979, and it is over a period of thirty-four
years now that the landlady is unable to get any
relief. The counsel for the appellant/s in both
the cases forcefully argued that denial of
opportunity by the Trial Court by rejecting the
application [Exh.144] for adjournment to lead
evidence of defendant-appellant-HPCL completely
gagged the defendant from placing its case before
the Trial Judge by oral as well as documentary
evidence. It is not that the appellant-defendant -
Corporation was habitual in asking for adjournments
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for leading evidence, as can be seen from the
record and proceedings and, therefore, the counsel
for the respondent-landlady ought not to have
objected to the last adjournment application [Exh.
144] and the Trial Court should not have rejected
that application, and instead could have given a
time-bound direction to the defendant for
production of evidence rather than going ahead with
delivering the judgment and decree. According to
the counsel for the appellant, therefore, period of
thirty-four years spent in the litigation is not
because of the fault of the appellant, but because
the respondent no.1 opposed the prayer for leading
the evidence of the defendants and the Trial Judge
rejected the appellant s request for adjournment.
According to the learned counsel for the appellant,
the Lower Appellate Court heard the appeals and
closed the same for judgment on 4th February, 1999
and delivered the judgment on 30th June, 1999,
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i.e., after four months and 26 days, when the
Supreme Court in the case of Joint Commissioner of
Income Tax, Surat Vs. Saheli Leasing & Industries
Ltd. [(2010) 6 SCC 384] fixed the period of three
months for delivering a judgment. That apart,
according to the counsel for the appellant, the
point about wrong rejection of application [Exh.
144] though was made a fulcrum of the argument of
the appellant was totally forgotten by the Lower
Appellate Court while writing the Judgment and
pronouncing the same after four months and 26 days.
That was a major point which was required to be
answered. But that did not happen because of time
gap of four months and twenty-six days for
declaring the judgment. To substantiate his
argument, learned Senior Adv. Mr. M.G. Bhangde also
relied on the reported judgment of the Suprme Court
in the case of Urviben Chiragbhai Seth Vs. Vijay
Bhai Shambhubhai Joranputra & others [(2011) 12 SCC
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582].
06. Per contra, learned Adv. Mr. Khapre for the
respondent-landlady relied on various judgments,
which I quote hereunder:-
[a] Soni Dineshbhai Manilal & others Vs.
Jagjivan Mulchand Chokshi With Jagjivan
Mulchand Chokshi Vs. Soni Dineshbhai
Manilal & others [AIR 2008 SC 887],
[b] Ram Bali Vs. State of U.P. [AIR 2004 SC
2329 (1)],
[c] Maya Devi (deceased by L.Rs.) V. Smt.
Raj Kumari Batra (deceased by L.Rs.) &
others [AIR 2011 SC 8(Supp) 417],
[d] Ashwinkumar K. Patel Vs. Upendra J.
Patel & others [AIR 1999 SC 1125], and
[e] State of U.P. & others Vs. Lalji Tando
(Dead) [AIR 2004 SC 32].
Mr. Khapre then argued that Section 105 of Civil
Procedure Code provides for setting up a specific
objection and challenge to order like order below
Exh.144 in the Memo of Appeal, in the absence of
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which, order below Exh.144 became final and hence
that ground cannot be raised. He then argued that
assuming the point about denial of opportunity
qua Exh.144 was raised, since the same is not to be
found anywhere in the impugned Judgment of the
District Judge, it must be treated as having been
abandoned by the appellant.
07. Mr. Khapre then continued to argue that it
was for the appellant to file an application for
rectification of the error in the judgment to that
effect, if any, after the pronouncement, since the
matter was fresh in the Court s mind, and having
failed to do so, now the appellant cannot be
allowed to turn around. At any rate, since thirtyfive
years have passed in the litigation, the case
does not warrant remand to the Lower Appellate
Court. The counsel then argued that no fruitful
purpose would be achieved if the matter is
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remanded. In support of the said contention going
on merits, he submitted that even if it is taken to
be true that the period of five years could be the
extended period of lease, the same again would
stand expired by 30th September, 1977. Then nothing
remained for the appellant to adduce the evidence.
Lastly, in the alternative, Mr. Khapre argued that
if at all this Court comes to the conclusion that
any opportunity was required to be given for
leading evidence to the defendant, the lone issue
may be referred to the Trial Judge for taking the
evidence on the point of renewal of lease and the
finding should be called back and these appeals
should be kept pending.
08. Learned Senior Adv. Mr. Bhangde, in reply,
argued that Ground No.5 was specifically raised in
relation to application [Exh.144] that no
opportunity was given to the appellant no.1 to
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examine the witnesses which is enough, if read with
the prayer in which it is alternatively prayed for
remand in that context. He then argued that the
question of abandonment of a point would not arise,
since the point was argued before the Lower
Appellate Court, but the Court failed to deal with
the same in the Judgment, and at any rate, Lower
Appellate Court was under a duty to examine the
entire record and find out whether there was denial
of the opportunity of leading evidence to the
defendant. Distinguishing the judgment about making
an application to the same learned District Judge,
Mr. Bhangde argued that the matter has to be
fresh in the mind of the learned Judge and at any
rate, the said issue would not arise now if the
point was really not dealt with in the judgment
impugned.
09. Upon hearing learned counsel for the rival
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parties, earlier this Court had indicated that this
Court will have to first decide whether the
proceedings of appeal in the Lower Appellate Court
were required to be remanded or whether this Court
should itself decide these Second Appeals on
merits. The Second Appeals were accordingly posted
further for hearing and the arguments were heard
on all the questions simultaneously.
10. After hearing the counsel for the parties
at length, I re-frame the Substantial Questions of
Law, inclusive of the said Preliminary Points as
under:-
[1] Whether the Trial Court
[Civil Court] committed
an error in rejecting
the application [Exh.144]
for adjournment filed
by the appellant-defendant
for adducing its evidence,
and whether any prejudice
is caused to the defendant;
and whether non-consideration
of the said ground in the
Judgment delivered after
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four months and twenty-six
days by the Lower Appellate
Court vitiates the
Judgment of the Lower
Appellate Court? ... Yes.
[2] Whether Section 105 of
Civil Procedure Code
speaks of the requirement
to specifically challenge
any interlocutory order
in the prayer to the
Memo of Appeal or merely
setting forth such
ground of objection in the
Memo of Appeal is
sufficient and whether
the Lower Appellate Court
is entitled to examine the
validity of any such
interlocutory order
itself to do justice to
the parties? ... Sec. 105, CPC,
contemplates only
setting forth the
ground of objection
in the Memo of
Appeal by the
appellant and a
specific prayer to
challenge such order
in the Prayer Clause
may not be necessary.
The Lower Appellate
Court, however, is
entitled to examine
the validity of any
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such orders as
contemplated by
Section 105, CPC.
[3] Whether the principle
of sanctity of
recitals in court
proceedings applicable
to the Courts of
Record can be stretched
to the proceedings
of the District Court/
Judge or Tribunal, and
in the instant case,
about the controversy
whether arguments on
Exh.144 were advanced
before the District
Judge or not, since
there is no reference in
the Judgment of the
District Judge about
it? ... The principle of
sanctity of recitals
in the court
proceedings is
applicable only
to the Courts of
Record , i.e.,
High Court [under
Article 215] and
the Supreme Court
[under Article 129].
The principle does
not extend to the
court proceedings
in other Courts.
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[4] Whether upon
pronouncement of
Judgment on 30th
June, 1999, the
Lower Appellate Court
became functus officio
and could it have
entertained any
application for
rectification/speaking
to minutes/clarification
about arguments on
application
[Exh.144]? ... Yes. The Court became
functus officio. No
Such application
could have been
entertained
except as provided
by [Section 152, or
Review], Civil
Procedure Code.
[5] What Order? ... Regular 302/1979 is
remanded to the
learned Trial Judge
[Civil Judge] for
a fresh trial.
11. Answer to Question No. 1 :-
Heard learned counsel for the rival
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parties. Perused the entire record and several
judgments cited by the parties. It appears from
the record that the plaintiff-landlady, after
institution of the suit in 1979, commenced her
evidence and examined four witnesses for the period
from 7th September, 1985 till 15th January, 1987,
and on the last date, namely 15th January, 1987, by
the Pursis [Exh.101], she closed her case. On the
same date, the counsel for the appellant-HPCL filed
an application [Exh.142] praying for adjournment of
a month and the counsel for the plaintiff gave
reply to that application, stating that the
defendant no.1 should have kept its evidence ready,
as if the plaintiff had already informed that she
would close her case on 15th January, 1987 and the
defendant no.1 should bring the witnesses on that
date. Court granted adjournment till 3rd February,
1987, on which date Presiding Officer of the Court
was on leave. The case was then posted to 25th
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February, 1987, on which date the counsel for the
appellant stated that he wanted to examine a
witness on the next date, and prayed for a month s
time. The counsel for the plaintiff opposed the
application, stating there was no sufficient cause.
The Court granted the application by imposing cost
of Rs. 25/-. On the next date, namely 20th March,
1987, an application for adjournment was filed on
the ground that the counsel for the appellant was
suffering from blood pressure and was unable to
attend the court, while the witness Mr. Pillai, who
was to come from Coimbtore, was unable to come and
in support of the same, a copy of the telegram was
placed on record about Mr. Pillai, in which it was
stated that next date, namely 19th should be taken.
The counsel for the plaintiff opposed the
application and the learned Trial Judge referring
to earlier adjournment applications [Exhs.142 and
143], stated that from January, 1987, sufficient
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time was given and even no summons was taken from
the Court and hence rejected the application, thus,
closing the case of defendant and then proceeded
further.
12. Thus, above is the factual background from
which it is amply clear that the appellantdefendant
was effectively granted only one
adjournment under Exh.143, i.e., on 25th February,
1987 with cost of Rs. 25/-, and the second
adjournment by application [Exh.144] dated 20th
March, 1987 for bringing the witnesses on behalf of
the appellant was rejected. Exh.142 application
could not be considered as effective adjournment
because on 15th January, 1987 itself, i.e., after
two-and-half-year, plaintiff closed her evidence
without intimation that defendant should keep its
witnesses ready on 15th January, 1987. The
respondent-plaintiff took two years and four months
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for examining her witnesses from 7th September,
1985 till 15th January, 1987, but still had such a
serious objection to the appellant for leading
evidence, who was granted only one effective
adjournment [Exh.143], that too with a cost of Rs.
25/-.
13. Now, upon examining application [Exh.144]
dated 20th March, 1987, which is the crucial date,
I find that the adjournment was sought on the
ground that the Advocate for the appellant was down
with blood pressure, while the witness Mr. Pillai
was unable to attend the Court and, therefore, only
second adjournment was sought. [See Raj Ahmad Vs.
State of UP [(1999) 6 SCC 391, Counsel s illness is
a sufficient cause for adjournment]. The Court
referred to the fact that no summons was taken by
the appellant, which, in my opinion, was wholly
irrelevant, since the appellant repeatedly stated
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that it wanted to bring its own witness. The Court
also referred to the earlier adjournment
applications [Exhs.142 and 143], as if Exh.142
dated 15th January, 1987 was the effective
adjournment at the behest of the appellant. Exh.
142 was was made on the date on which the plaintiff
closed her case after examining witnesses for over
a period of two years and four months and,
therefore, Exh.142 in substance was not an
adjournment application because plaintiff closed
her case on that very day, namely 15th January,
1987. It was only one effective adjournment [Exh.
143], which was relevant. But then it was wholly
unjust and punitive to reject the application [Exh.
144], since good and sufficient grounds were
disclosed, namely illness of the Advocate and
inability of the witness to come to Akola from
Coimbtore. In fact, Exh.144 was the only second
effective adjournment sought for, which was
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refused. Thus, in the Trial Court itself, it is
the plaintiff who acted most unreasonably by
opposing the application [Exh.144], even though the
ground about illness of Advocate was mentioned and
was not disputed. The learned Trial Judge, instead
of rejecting the application [Exh.144], could have
taken resort to other powers available to the
Court, but to shut the doors for the defendant for
all times to come to lead evidence in defence, only
because second adjournment was asked for, that too
for undisputed and good and sufficient reasons was
to deny the opportunity of defending or contesting
the suit effectively apart from being punitive. I,
therefore, hold that rejection of application [Exh.
144] was arbitrary, illegal and punitive.
The next argument made by learned Adv. Mr.
Khapre that no prejudice is shown to have been
caused to the appellant-defendant due to denial of
a chance to lead evidence will have to be rejected
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in the light of above tale-telling facts. When the
defendant was not allowed to lead evidence at all
for no fault, or without giving any reasonable
opportunity, the prejudice caused to the defendant
must be held to be writ large. There is no separate
methodology for proving prejudice in the aforesaid
factual matrix.
14. Answer to Question No. 2 :-
The next submission made by Mr. Khapre
based on Section 105, Civil Procedure Code, again,
in my opinion, is misconceived. Section 105 of
Civil Procedure Code reads thus:-
105. Other orders.- (1) Save as
otherwise expressly provided, no appeal
shall lie from any order made by a Court
in the exercise of its original or
appellate jurisdiction; but, where a
decree is appealed from, any error,
defect or irregularity in any order,
affecting the decision of the case, may
be set forth as a ground of objection in
the memorandum of appeal.
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(2) Notwithstanding anything
contained in sub-section (1), where any
party aggrieved by an order of remand
from which an appeal lies does not
appeal therefrom, he shall thereafter be
precluded from disputing its
correctness.
15. Perusal of Section 105 above shows that
Section 105 provides for a prohibition in filing
appeal from order made by a Court in exercise of
its original or appellate jurisdiction. The object
of this provision is to prevent any party from
repeatedly challenging the interlocutory orders or
other orders under the provisions of the Code in
order to curb delay. The second part of Subsection
(1) of Section 105, however, shows that
when a decree is appealed from; any challenge to
wrong or illegal orders/interlocutory orders made
in exercise of original or appellate jurisdiction
during the proceedings affecting the ultimate
decision of the case may be set forth as a ground
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of objection in the Memorandum of Appeal. This
clearly shows that it was not necessary to
challenge the order refusing adjournment and could
well be set out as a ground of objection in the
Memorandum of Appeal. The word used is may ,
meaning thereby that even if the ground is not set
out, the appellate court is not powerless to find
out if there is an error, irregularity or defect
in such order in the first place and then correct
the errors etc., to do justice. Further, as
contended by Mr. Khapre, there is no need to make
the prayer to challenge the order specifically in
the Memorandum of Appeal or in the prayer clause of
the appeal. What is stated in the provision is
that the appellant may set out the ground of
objection and nothing more. Even otherwise, I find
in para 5 of the Memo of Appeal the ground of
objection and the prayer which read thus:-
5. The learned Trial Court erred
in not granting opportunity to the
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appellant no.1 to examine its witness.
Prayer:It is, therefore, most humbly
prayed that this appeal be
kindly allowed with costs by
dismissing the plff s suit with
costs throughout in its
entirety, and in any event,
alternatively the case be
kindly remanded to Trial Court,
for trial as per law to the
Court of competent
jurisdiction, and to give an
opportunity to the parties to
make their submissions and lead
evidence;
Hence the answer to Question No.2 is as
above.
16. Answer to Question No. 3 :-
The next submission made by Mr. Khapre is
that the argument in relation to application [Exh.
144] that the appellant was denied opportunity of
leading evidence must be held to have been
abandoned, since it has not to be found in the
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judgment recorded by the Lower Appellate Court.
According to him, since the judgment does not show
that such an argument was advanced, the record and
proceedings of the District Court/Judge must be
held to be correct by invoking the principle of
sanctity of Record of the Courts. At any rate, he
then argued that the appellant was never prevented
from making an application for speaking to minutes
to the District Judge or rectification of the
error, if any, in respect of the argument about
application [Exh.144], so that the learned Lower
Appellate Court could have, if the appellant was
really right, given his view. He, therefore,
submitted that the appellant cannot be allowed to
challenge the sanctity of the record of the
District Court/District Judge, including the
Judgment. On the contrary, Mr. Bhangde, learned
Senior Adv., for the appellant, replied by citing
the decision of the Supreme Court in the case of
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Urviben Sheth [cited supra], and argued that no
such sanctity is contemplated in respect of the
record and proceedings of the District Court, and
at any rate, according to him, as a Lower Appellate
Court, it was the duty of the Court to examine the
entire record and to find out whether order below
Exh.144 was legal, correct and proper, since that
was a Court of facts entitled to assess the
validity of the order below Exh.144.
17. I have given careful consideration to the
last issue raised before me by counsel for both the
parties. Before going to the said question, it
would be appropriate to quote para 5 from the
Judgment of the Supreme Court in case of Joint
Commissioner of Income Tax, Surat [cited supra],
which reads thus:-
5. We, therefore, before proceeding
to decide the matter on merits, once
again would like to reiterate few
guidelines for the courts, while
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writing orders and judgments to follow
the same. These guidelines are only
illustrative in nature, not exhaustive
and can further be elaborated looking
to the need and requirement of a given
case:
(a) It should always be kept
in mind that nothing should be
written in the judgment/order,
which may not be germane to the
facts of the case; it should have
a co-relation with the applicable
law and facts. The ratio decidendi
should be clearly spelt out from
the judgment/order.
(b) After preparing the
draft, it is necessary to go
through the same to find out, if
anything, essential to be
mentioned, has escaped discussion.
(c) The ultimate finished
judgment/order should have
sustained chronology, regard being
had to the concept that it has
readable, continued interest and
one does not feel like parting or
leaving it in the midway. To
elaborate, it should have flow and
perfect sequence of events, which
would continue to generate
interest in the reader.
(d) Appropriate care should
be taken not to load it with all
legal knowledge on the subject as
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citation of too many judgments
creates more confusion rather than
clarity. The foremost requirement
is that leading judgments should
be mentioned and the evolution
that has taken place ever since
the same were pronounced and
thereafter, latest judgment, in
which all previous judgments have
been considered, should be
mentioned. While writing a
judgment, psychology of the reader
has also to be borne in mind, for
the perception on that score is
imperative.
(e) Language should not be
rhetoric and should not reflect a
contrived effort on the part of
the author.
(f) After arguments are
concluded, an endeavour should be
made to pronounce the judgment at
the earliest and in any case not
beyond a period of three months.
Keeping it pending for a long time
sends a wrong signal to the
litigants and the society.
(g) It should be avoided to
give instances, which are likely
to cause public agitation or to a
particular society. Nothing should
be reflected in the same which may
hurt the feelings or emotions of
any individual or society.
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The aforesaid are some of the
guidelines which are required to be
kept in mind while writing judgments.
In fact, we are only reiterating what
has already been said in several
judgments of this Court.
The aforesaid guidelines issued by the Apex Court
and in particular Guideline 5 [f] will have to be
pressed into service in the instant case.
Admittedly, the Judgment was pronounced by the
Lower Appellate Court after the lapse of four
months and twenty-six days after hearing the
arguments. The fact of the matter is that the
crucial ground about wrong rejection of
application [Exh.144] disallowing the defendant
from adducing any evidence was raised in the Memo
of Appeal, so also there is a prayer and,
therefore, there is a reason to believe that the
learned Lower Appellate Court forgot because of
lapse of period of four months and twenty-six days
to address on the said crucial point. That apart,
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I have myself perused the record of the Lower
Appellate Court and I find the following argument
by counsel for appellant was noted in the notes of
arguments taken by Lower Appellate Court dated 27/8
on record [back of page no.114] in the handwriting
of the learned Judge :-
Rohankar Adv., was ill. Application
was rejected. Chance was not given.
It clearly appears that Adv. Mr. Rohankar
for the appellant-defendant being ill, the argument
was made that the appellant-defendant should have
been given a chance. Thus, there is no doubt in my
mind that the said argument was advanced, but then
due to lapse of time in delivering the judgment,
the said crucial ground was left out. I am not,
therefore, prepared to accept the submission that
the said ground was abandoned at the arguments.
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The next question is of some significance.
The argument that principle of sanctity of record
must be extended to the Courts other the Courts of
Record must be turned down. As a matter of fact,
the Supreme Court in the case of Urviben Seth
[cited supra] has precisely answered the said
issue. With respect, I quote paras 10, 16, 17, 18
and 19 from the said judgment as under:-
10 The other ground which weighed
with the High Court is that the
statement recorded in the judgment of
the court cannot be contradicted by any
affidavit or any other evidence and in
coming to the said conclusion the High
Court relied on the judgment of this
Court in Daman Singh v. State of
Punjab.
16. The reliance placed by the High
Court on the judgment of this Court in
Daman Singh is rather misconceived. In
the said case, what this Court held was
when several points were raised in a
writ petition before the High Court,
and argument is confined to some
grounds or points, as other grounds are
considered by the counsel unworthy of
canvassing, thereafter the counsel
cannot make a grievance that other
grounds were not considered by the
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Court (see SCC p. 682, page 13).
17. The situation in this case is
not similar to the one pointed out in
Daman Singh. Here the High Court relied
on the principle of sanctity of a
record entered by a court and held that
what is recited in the court record is
sacrosanct. The High Court, in the
process, fell into an error by equating
the record of proceedings in a tribunal
with proceedings in a court of record.
Under our hierarchy of courts, a High
Court (under Article 215) and the
Supreme Court (under Article 129) are
recognized as courts of record. A Motor
Accident Claims Tribunal constituted
under the Motor Vehicles Act, 1988 is a
civil court of limited jurisdiction,
and is certainly not a court of record.
The infallibility of its formal record
is one of the earliest marks of a court
of record, but it has developed other
characteristics too (see A History of
English Law by W.S. Holdsworth, Vol.5,
p. 158).
18. In R. v. Aaron Mellor, it was
held:
We must consider the statement
of the learned Judge as absolute
verity and we ought to take his
statement precisely as a record
and act on it in the same manner
as on a record of court which of
itself implies an absolute
verity.
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This has been followed by this Court in
State of Maharashtra v. Ramdas Srinivas
Nayak.
19. Therefore, the principle of
sanctity of recitals in court
proceedings is available to a court of
record. This principle cannot be
stretched to the proceedings of a
tribunal. Unfortunately the High Court
failed to appreciate this.
It is, thus, clear that the said principle cannot
be extended to the courts other than the courts of
record, namely High Courts [under Art. 215] and
Supreme Court [under Art. 129]. Hence I answer the
Question No.3 as under:-
The principle of sanctity of recitals
in the court proceedings is applicable
only to the Courts ofRecord , i.e.,
High Courts [under Article 215] and the
Supreme Court [under Article 129]. The
principle does not extend to the court
proceedings in other Courts.
18. Answer to last Question No. 4 :-
Counsel for respondents contended that
application for Speaking to Minutes or for
rectification of the alleged error should have been
made before the same Presiding Officer. It is not
possible to accept the submission made by the
learned counsel, since after the pronouncement of
the judgment, the learned District Judge or the
Lower Appellate Court became functus officio, and
then there is no regulatory provision under Civil
Procedure Code to enable the Lower Appellate Court
to accept any such application for
rectification/speaking to minutes as contended by
Mr. Khapre. I am well supported in this view by
the decision of the Apex Court in the case of State
Bank of India & others Vs. S.N. Goyal [(2008) 8 SCC
92]and I quote the following extract from paras 26,
27 and 28 thereof:-
26. It is true that once an
authority exercising quasi-judicial
power takes a final decision, it cannot
review its decision unless the relevant
statute or rules permit such review.
But the question is as to at what stage
an authority becomes functus officio in
regard to an order made by him. P.
Ramanatha Aiyar s Advanced Law Lexicon
(3rd Edn., Vol.2, pp.1946-47) gives the
following illustrative definition of
the term functus officio :
Thus a judge, when he has
decided a question brought before
him, is functus officio, and
cannot review his own decision.
27. Black s Law Dictionary (6th
Edn., P 673) gives its meaning as
follows:
Having fulfilled the
function, discharged the office,
or accomplished the purpose, and
therefore of no further force or
authority.
28. We may first refer to the
position with reference to civil
courts. Order 20 of the Code of Civil
Procedure deals with judgment and
decree. Rule 1 explains when a judgment
is pronounced. Sub-rule (1) provides
that 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
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Bombay High Court
Second Appeal Nos. 340 & 356 both of 1999
40
a day for that purpose of which due
notice shall be given to the parties or
their pleaders. Sub-rule (3) provides
that the judgment may be pronounced by
dictation in an open court to a
shorthand writer [if the Judge is
specially empowered (sic by the High
Court) in this behalf]. The proviso
thereto provides that where the
judgment is pronounced by dictation in
open court, the transcript of the
judgment so pronounced shall, after
making such corrections as may be
necessary, be signed by the Judge,
bear the date on which it was
pronounced and form a part of the
record. Rule 3 provides that 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. Thus, where a
judgment is reserved, mere dictation
does not amount to pronouncement, but
where the judgment is dictated in open
court, that itself amounts to
pronouncement. But even after such
pronouncement by open court dictation,
the Judge can make corrections before
signing and dating the judgment.
Therefore, a Judge becomes functus
offcio when he pronounces, signs and
dates the judgment (subject to Section
152 and power of view). The position
is different with reference to quasijudicial
authorities. While some quasijudicial
tribunals fix a day for
pronouncement and pronounce their
orders on the day fixed, many quasijudicial
authorities do not pronounce
their orders. Some publish or notify
their orders. Some prepare and sign the
orders and communicate the same to the
party concerned. A quasi-judicial
authority will become functus offcio
only when its order is pronounced, or
published/notified or communicated (put
in the course of transmission) to the
party concerned. When an order is made
in an office noting in a file but is
not pronounced, published or
communicated, nothing prevents the
authority from correcting it or
altering it for valid reasons. But once
the order is pronounced or published or
notified or communicated, the authority
will become functus officio. The order
dated 18-1-1995 made on an office note,
was neither pronounced, nor
published/notified nor communicated.
Therefore, it cannot be said that the
appointing authority became functus
officio when it signed the note dated
18-1-1995.
Hence I answer the said Question No.4 in
affirmative.
19. The next submission made by Mr. Khapre is
that because of lapse of long period of thirty five
years, instead of making a remand order, this Court
should frame an issue for allowing the defendant to
adduce evidence and then invite a finding from the
Trial Judge and till then to keep these appeals
pending before this Court cannot be accepted.
Still I have given anxious thought to what Mr.
Khapre, learned counsel contended. The reason is
that it is not possible to surmise at this stage
whether after the defendant adduces its evidence,
the plaintiff would require an opportunity to lead
further evidence or take such steps which are
available in law, or the defendant may require the
plaintiff or her witnesses for any other purpose
before Court. At the same time, it is not possible
to imagine what evidence the defendant should give
before the Trial Judge in its right to lead
evidence and that is why the submission made by Mr.
Khapre that there can be no evidence because the
extended lease also stood expired cannot be
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Bombay High Court
Second Appeal Nos. 340 & 356 both of 1999
43
accepted. It is not possible for me to pre-judge
the issue as to what evidence would be led by the
defendant in support of its case. Nay, it would be
wrong to assume any such thing. That apart, I have
already held that the Second Appeals have remained
pending in this Court for the last fourteen years.
I have also found as a fact that because of
objections raised by the respondent-plaintiff, the
application [Exh.144] was illegally rejected. The
First Appeal before the District Court remained
pending for about eleven years. Looking to these
facts, though it is true that about thirty-five
years have been spent in the Court by the
plaintiff, it cannot be said that the appellantdefendant
HPCL is to be blamed. However, an
arrangement to decide the suit in a time-bound
programme can certainly be made by this Court. At
the same time, what I find there is hardly any
point in remanding the proceedings to the Lower
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Bombay High Court
Second Appeal Nos. 340 & 356 both of 1999
44
Appellate Court, since I have rendered a
categorical finding that the application [Exh.144]
was illegally rejected and the defendant was denied
a chance of adducing its evidence. That being so,
the remand order cannot be made to the Lower
Appellate Court, but it will have to be made by
remanding Regular Civil Suit No. 302 of 1979 to the
first court, i.e., Trial Court [Civil Court].
Hence the following order:-
O R D E R
[a] Second Appeal Nos. 340 and 356 both of
1999 are partly allowed.
[b] Regular Civil Suit No. 302 of 1979 is
remanded to the learned Trial Judge for
a fresh trial.
[c] The defendants in both the suits are
given opportunity to lead their
respective evidence, if any, on or
before 6th May, 2014 and the Court shall
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Bombay High Court
Second Appeal Nos. 340 & 356 both of 1999
45
not adjourn the proceedings for
recording the evidence beyond the said
date.
[d] In case the plaintiff wants to adduce
any evidence or re-examine the witness,
or as the case may be, the same shall
be done, of course, with opportunity to
the defendants according to law on or
before 30th June, 2014. Trial shall be
closed and the decision shall be
rendered by the learned Trial Judge on
or before 31st July, 2014.
[e] Liberty is reserved in favour of
respondent-plaintiff to take such steps
as are available in law for expeditious
disposal of the future appeals, if any.
[f] The appellant Hindusthan Petroleum
Corporation Ltd., in both the cases
shall continue to pay enhanced
occupation charges at the rate of Rs.
22,500-00 [rupees twenty-two thousand
five hundred only] per month as
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Bombay High Court
Second Appeal Nos. 340 & 356 both of 1999
46
directed by this Court, till the
decision of suit after remand, and if
any arrears are not cleared, the same
shall be cleared by the next date.
[g] Parties to appear before the learned
Trial Judge on 11th April, 2014.
20. Steno copy of this order be supplied to the
parties as per rules.
JUDGE
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|hedau|
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