Applying the aforesaid exposition to the facts of present case, the judgment was pronounced in open Court and the objection is that the same was signed later on after the charge was transferred. The Apex Court in the case of Vinod Kumar Singh (supra), has held that the judgment to be operative does not await signing thereof by the Court. It is not that after pronouncement the judgment was altered. The judicial act of pronouncement was performed and the signing and sealing which are the rules designed to secure certainty about its contents and matter remained, which as held by the Apex Court in the case of Surendra Singh and Ors (supra), can be cured. Although I am not inclined to accept the submission of the learned counsel for Petitioner that the judgment was signed after transfer of charge in view of the roznama on record and date below the signature, the aforesaid decisions are relied upon to drive home the point that judicial act of pronouncement of judgment in open court was complete and hence no fault can be found in the manner of delivery. {Para 18}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 75 35 OF 202 3
Suvarna Ratnakar Taras Vs Mangalprabhat Lodha and others
CORAM : SHARMILA U. DESHMUKH, J.
DATE : July 17, 2023.
1. The petition questions the order dated 23rd February,
2023 passed in Misc. Civil Appeal No. 9 of 2023 allowing the appeal
partly and setting aside the order dated 5th December, 2022 passed
below Exh.5 to the extent of Gut No.254 and as regards Gut No.269
to the extent of 6800 sqr. mtrs. which was in possession of the
appellant who were the original defendant nos.18 and 19.
2. The Petitioner herein is the original plaintiff and the
Respondent Nos.1 and 2 are the original defendant nos.18 and 19,
who had preferred the Misc. Civil Appeal No.9 of 2023, in which the
impugned order has been passed. For the sake of convenience the
parties are referred to their status before the trial Court.
3. Regular Civil Suit No.237 of 2019 was instituted by the
plaintiff-Suvarna for partition and separate possession of her share in
the four suit properties and for declaration that the sale deeds dated
24th December, 2007, 26th March, 2008, Agreement for Sale dated 17th
August, 2010 and Agreement for sale dated 23rd February, 2012 and
sale deed dated 22nd February, 2018 executed by some of the
Defendants in favour of other Defendants are not binding upon her
share, and, for cancellation of mutation entries. In the interim
injunction application filed below Exh.5, the trial Court partly
allowed the application and directed the Defendant Nos 1 to 19 to
maintain status quo in respect of four properties i.e. agricultural land
bearing Nos.57, 254, 269 and 247. Aggrieved by the order of the
status quo, the defendant nos.18 and 19 preferred Misc.Civil Appeal
No.9 of 2023 and by the impugned judgment and order dated 23rd
February, 2023, the appeal came to be partly allowed and the order of
status quo was set aside to the extent of Gut No.254 and as regards
Gut No.269 to the extent of area of 6800 sqr.mtrs, giving rise to the
present petition.
4 Heard Mr.Walwalkar, learned counsel for the Petitioner
and Mr.Amogh Singh, learned counsel for Respondent Nos.1 and 2.
5. Learned counsel for the Petitioner submits that the
impugned judgment indicates that the presiding Judge of the
appellate Court had signed the impugned order on 23rd February,
2023. He would contend that vide Notification dated 16th March,
2023, the District Judge was transferred from the said post of District
Judge-1, Vadgaon-Maval, District Pune as District Judge-9, Pune and
Shri S.S.Pallod had taken charge as a District Judge-1. He would
further submit that the posting had taken place with immediate effect
and the web status as regards the impugned judgment shows that the
judgment has been signed by the Presiding Officer on 27th March,
2023 and that the judgment was uploaded on 29th March, 2023. The
second submission raised by the learned counsel for the Petitioner is
that the Appellate Court gave too much importance to the subsequent
developments carried out on two of the suit properties. He would
further submit that the admitted position is that the properties are
ancestral properties and as such, without consent of the plaintiff, the
sale deed in question could not have been executed. In support of his
submissions, he relies upon the decision In re Patan Alli Khan, [A.I.R.
(34) 1947 Madras 248].
6. Per contra, learned counsel appearing for the Respondent
Nos.1 and 2 submits that the date below the signature on the
impugned judgment indicates that the same has been signed on 23rd
February, 2023. He also placed his reliance on the roznama dated 23rd
February, 2023, which records that the operative part of the judgment
was pronounced and that the proceedings was closed. He would
further submit that the roznama records that the advocates for both
the parties were present and as such, operative part of the judgment
was pronounced in presence of both the parties. As regards the merits
of the matter he would contend that the suit has been filed after
delay of almost 12 years from the date of the conveyance of the land
by the owners in favour of the defendant Nos.18 and 19. He would
further submit that the conveyances were executed on 24th December,
2007 and 26th March, 2008 and subsequently mutation entries were
effected. He would further submit that the plaintiff in paragraph 13 of
the plaint has admitted about acquiring knowledge of the registered
sale deeds since 8th February, 2013, however, has instituted the suit in
the year 2019 and as such, the suit is prima facie, barred by
limitation. He would further submit that after the conveyance of the
properties, the defendant nos.18 and 19 obtained various permissions
and approvals and has developed integrated housing schemes on
portion of suit properties.
7. Learned counsel for the Respondent Nos.1 and 2 further
submits that the development scheme being implemented on the
larger land consists of total 34 towers, 77 country houses, and 27
villas and that the development on the land commenced in the year
2012 and as of date 2925 residential units in 28 buildings, 26 country
houses and 28 villas have been completed. He would further submit
that third party rights have already been created and the
development of the larger land is at an advanced stage.
8. To counter the submissions that the District Judge could
not have signed the judgment after his transfer, he relies upon the
following decisions:
(a) Surender Singh vs. State of Uttar Pradesh, [AIR 1954 SC
194];
(b) Vinod Kumar Singh Vs. Banaras Hindu University, [AIR
1998 SC 371];
(c) Mishrimal Vs. Municipal Council of Lonavala, [2006 (3)
Mh.L.J];
(d) Omprakash Vs. Nagpur Municipal Corporation, [2010 (6)
Mh.L.J.];
(e) Darayas Cawasji Balsara vs. Shenaz Darayas Balsara, [AIR
1992 Bom.175];
(f) Hakikulla vs. MHADA, [1997 (1) Mh.L.J.]
(g) Phool Kumari vs. Nandu Ram, [AIR 2003 HP 75].
9. Considered the submissions and perused the papers with
the assistance of learned counsel for the parties.
10. The suit properties are land bearing Gut Nos.57, 254, 269
and 347. In the present case this Court is concerned as regards the
order of status quo passed in respect of Gut NO 254 and 269 as
Defendant Nos 18 and 19 are the Appellants. The genealogy indicates
that one Balkrishna Kondiba Bodke was the common ancestor, who
had two sons and three daughters namely Rajaram (Plaintiff’s father),
Bhagwan, Baydabai, Meena and Subhadra respectively. Rajaram
expired on 29th September, 2008 leaving behind his wife Sumitra
(Defendant No.1), son Dattraya (Defendant No.2) and daughter
Prachi (Defendant No.3) and the Plaintiff. The Defendant No.5 is the
son of Bhagwan and Defendant Nos.6 to 8 are Baydabai, Meena and
Subhadra. The case of the plaintiff is that there was no partition of
the suit properties which are ancestral properties and after the death
of Rajaram, the mutation entry was effected in the name of Sumitra,
Dattraya and Prachi. It is claimed that on 15th May, 2003, she got
married and thereafter was residing at her matrimonial house.
11. It is stated that Plaintiff’s late father and Defendant Nos.
1, 2 and 4 to 8 in collusion with each other have sold lands bearing
Gut No.254 in favour of Defendant Nos 18 and 19 vide registered sale
deeds dated 24th December, 2007 and 26th March, 2008. It is further
stated that after the death of Plaintiff’s father two agreements for sale
dated 17th August, 2010 and 23rd February, 2012. was executed in
respect of land admeasuring 2 R and 10 R of Gut No.269. It is further
stated that the defendant nos.18 and 19 have constructed group of
residential buildings in Gut Nos.254 and 269.
12. In the order below below Exh.5, the trial Court has held
that on consideration of the mutation entry in respect of the Gut
No.254, the same indicates that in the sale deed of the year 2007 and
2008 executed in favour of the defendant nos.18 and 19, the
description of Rajaram is as Joint Hindu Family Manager and that the
Plaintiff and her sister Prachi are not parties to the sale deed. The
trial Court observed that the plaintiff being the daughter is entitled to
share in the ancestral properties and as such, directed status quo in
respect of Gut No.57, Gut Nos.254, 269 and 247.
13. The Appellate Court took into consideration the public
notices issued in the year 2007 and 2008 in respect of sale transaction
of Gut No.254 to which the plaintiff had not raised any objection. It
was further observed that subsequent to the sale deed executed there
are mutation entries effected and the 7/12 extracts and that NA
permission was received in respect of Gut No.254 and and other lands
on 24th October, 2011 and in respect of portion of 6800 sqr.mtrs. of
Gut No.269 on 26th August, 2016. The Appellate Court further
observed that sanctions and permissions granted for the construction
in the year 2018-2021 and occupancy certificate has been issued to
some of the buildings and villas which are constructed on the site
including Gut Nos.254 and 269. Taking into consideration the above
facts, the Appellate Court held that the appellants are bonafide
purchasers for value without notice. The Appellate Court further
observed that Gut No.269 is admeasuring 1.59 R and it is the
Plaintiff’s case that her father Rajaram’s share was 51 R land and she
claimed partition of the said area.
14. It is not disputed that vide registered sale deeds executed
in the year 2007 and 2008 the Defendants have acquired land bearing
Gut No.254 and as regards the Gut No.269, the portion admeasuring
6800 sqr.mtrs., out of Gut No.269 formed part of area admeasuring
10800 square meters which was sold by Balkrishna to third party
who are the vendors of Defendant No 19. The specific case of the
Plaintiff is that the share of the Plaintiff’s father was 51 R in
Gut No.269 and as such there cannot be order of status quo in respect
of the entire Gut No.269. Further the area of 6800 square meters
formed part of the property sold by the grandfather of the Plaintiff
during his lifetime. As far as Gut No.254 is concerned, the undisputed
position is that after exercise of due diligence the properties were
purchased in the year 2007 and 2008. The mutation entries were
effected, there was amalgamation of the land with adjacent land and
large scale development carried out. There was no objection raised
since the year 2007 and 2008 and for the first time in the year 2019
the Plaintiff has raised objection despite being aware of the
transactions in the year 2013 itself. The Defendant Nos 18 and 19
after exercise of due diligence have purchased the properties,
developed the same and have created third party rights therein. Even
if it is accepted that the suit properties are ancestral properties,
considering that the claim has been raised aftr 11 years and after
substantial developments have taken place, the balance of
convenience tilts in favour of the Defendant Nos.18 and 19. It needs
to be noted that the name of the Plaintiff was not mutated in revenue
records and as such even the search taken prior to the sale
transactions would not have yielded any results. As regards the share
of the plaintiff in respect of the ancestral properties is concerned, the
properties which have been alienated can be adjusted against the
share of other coparceners at the time of final adjudication.
15. In light of the above discussion, the order of status quo
would cause irreparable loss and damage not only to the defendant
nos.18 and 19 but also to the third party – flat purchasers who are
not even party to the proceedings.
16. In so far as the submission as regards the judgment being
signed after the Presiding officer had been transferred, the roznama
of 23rd February, 2023 indicates that the judgment was pronounced in the open court in presence of the advocate for both the parties. As
regards the signature , which is claimed to be subsequent signature,
the signature on the judgment discloses that it is signed on 23rd
February, 2023. In that context, it will be beneficial to refer to the
decision of Surendra Singh and Ors (supra) and paragraph Nos.10,
11, 12 and 14 which reads thus:
“10. In our opinion, a judgment within the meaning of these
sections is the final decision of the court intimated to the
parties and to the world at large by formal "pronouncement"
or "delivery" in open court. It is a judicial act which must be
performed in a judicial way. Small irregularities in the
manner of pronouncement or the mode of delivery do not
matter but the substance of the thing must be there : that can
neither be bluffed nor left to inference and conjecture nor can
it be vague. All the rest the manner in which it is to be
recorded, the way in which it is to be authenticated the
signing and the sealing, all the rules designed to secure
certainty about its content and matter@an be cured; but not
the hard core, namely the formal intimation of the decision
and its contents formally declared in a judicial way in open
court. The exact way in which this is clone does not matter. In
some courts the judgment is delivered orally or read out, in
some only the operative portion is pronounced, in some the
judgment is merely signed after giving notice to the parties
and laying the draft on the table for a given number of days
for inspection.
11. An important point therefore arises. It is evident that
the decision which is so pronounced or intimated must be a
declaration of the mind of the court as it is at the time of
pronouncement. We lay no stress on the mode or manner of
delivery, as that is not of the essence, except to say that it
must be done in a judicial way in open court. But, however, it
is done it must be an expression of the mind of the court at the
time of delivery. We say this because that is the first judicial
act touching the judgment which the court performs after the
hearing. Everything else up till then is done out of court and
is not intended to be the operative act which sets all the
consequences which follow 335 on the judgment in motion.
Judges may, and often do, discuss the matter among
themselves and reach a tentative conclusion. That is not their
judgment. They may write and exchange drafts. Those are not
the judgments either, however heavily and often they may
have been signed. The final operative act is that which is
formally declared in open court with the intention of making
it the operative decision of the court. That is what constitutes
the "judgment".
12. Now up to the moment the judgment is delivered
Judges have the right to change their mind. There is a sort of
locus paniteniea, and indeed last minute alterations
sometimes do occur. Therefore, however, much a draft
judgment may have been signed beforehand, it is nothing but
a draft till formally delivered as the judgment of the court.
Only then does it crystallise into a full fledged judgment and
become operative. It follows that the Judge who "delivers"
the judgment, or causes it to be delivered by a brother Judge,
must be in existence as a member of the court at the moment
of delivery so that he can, if necessary, stop delivery and say
that he has changed his mind. There is no need for him to be
physically present in court but he must be in existence as a
member of the court and be in a position to stop delivery and
effect an alteration should there be any last minute change of
mind on his part. If he hands in a draft and signs it and
indicates that he intends that to be the final expository of his
views it can be assumed that those are still his views at the
moment of delivery if he is alive and in a position to change
his mind but takes no steps to arrest delivery. But one cannot
assume that he would not have changed his mind if he is no
longer in a position to do so. A Judge’s responsibility is heavy
and when a man’s life and liberty hang upon his decision
nothing can be left to chance or doubt or conjecture; also, a
question of public. policy is involved. As we have indicated, it
is frequently the practice to send a draft, sometimes a signed
draft, to a brother Judge who also heard the case. This may
be merely for his information, or for consideration and
criticism. The mere signing of the draft does not necessarily
indicate a closed mind. We feel it would be against public
policy to leave the door open for an investigation whether a
draft sent by a Judge was intended to embody his final and
unalterable opinion or was only intended to be a tentative
draft sent with an unwritten understanding that he is free to
change his mind should fresh light dawn upon him before the
delivery of judgment.
14. As soon as the judgment is delivered, that becomes the
operative pronouncement of the court. The law then provides
for the manner in which it is to be authenticated and made
certain. The rules regarding this differ but they do not form
the essence of the matter and if there is irregularity in
carrying them out it is curable. Thus, if a judgment happens
not to be signed and is inadvertently acted on and executed,
the proceedings consequent on it would be valid because the
judgment, if it can be shown to have been validly delivered,
would stand good despite defects in the mode of its
subsequent authentication.”
17. In the case of Vinod Kumar Singh vs Banaras Hindu
University and Ors (supra) , the Apex Court observed in paragraph 8
as under:
“8. We have extensively extracted from what Bose J. spoke in
this judgment to impress upon everyone that pronouncement
of a judgment in court whether immediately after the hearing
or after reserving the same to be delivered later should
ordinarily be considered as the final act of the court with
reference to the case. Bose J. emphasised the feature that as
soon as the judgment is delivered that becomes the operative
pronouncement of the court. That would mean that the
judgment to be operative does not await signing thereof by the
court. There may be exceptions to the rule, for instance, soon
after the judgment is dictated in open court, a feature which
had not been placed for consideration of the court is brought
to its notice by counsel of any of the parties or the court
discovers some new facts from the record. In such a case the
court may give direction that the judgment which has just
been delivered would not be effective and the case shall be
further heard. There may also be cases-though their number
would be few and far between-where when the judgment is
placed for signature the court notices a feature which should
have been taken into account. In such a situation the matter
may be placed for further consideration upon notice to the
parties. If the judgment delivered is intended not to be
operative, good reasons should be given.”
18. Applying the aforesaid exposition to the facts of present
case, the judgment was pronounced in open Court and the objection
is that the same was signed later on after the charge was transferred.
The Apex Court in the case of Vinod Kumar Singh (supra), has held
that the judgment to be operative does not await signing thereof by
the Court. It is not that after pronouncement the judgment was
altered. The judicial act of pronouncement was performed and the
signing and sealing which are the rules designed to secure certainty
about its contents and matter remained, which as held by the Apex
Court in the case of Surendra Singh and Ors (supra), can be cured.
Although I am not inclined to accept the submission of the learned
counsel for Petitioner that the judgment was signed after transfer of
charge in view of the roznama on record and date below the
signature, the aforesaid decisions are relied upon to drive home the
point that judicial act of pronouncement of judgment in open court
was complete and hence no fault can be found in the manner of
delivery.
19. In light of the discussion above, the Petition fails and
stands dismissed.
( Sharmila U. Deshmukh, J. )
No comments:
Post a Comment