MANU/WB/0028/1919

Equivalent Citation: 1919(29)C LJ438, 24C WN791, (1919)ILR 46C al978, 51Ind. C as.405

IN THE HIGH COURT OF CALCUTTA

Decided On: 01.04.1919
Appellants: Fort Gloster Jute Manufacturing Co.
Vs.
Respondent: Chandra Kumar Das and Ors.
Hon'ble Judges/Coram:
Asutosh Mookerjee and H. Walmsley, JJ.
Case Note:
Judgment - Civil Procedure Code (Act V of 1908), Order XX, Rules 1, 2, 3--
Judgment, provisions of the law relating to--Infringement--Curable by
consent or waiver.
JUDGMENT
Asutosh Mookerjee and H. Walmsley, JJ.
1. This is an appeal by the defendants in a suit for establishment of title to land. The
claim was dismissed by the trial Court, whereupon the plaintiffs preferred an appeal.
This was heard on the 6th May, 1915 by Mr. Asutosh Ghose, first Subordinate Judge of
Hooghly, who reserved judgment. On the 29th May 1915, Mr. Ghose wrote, signed and
dated his judgment. It appears that during a portion of every month, the first
Subordinate. Judge had to discharge his judicial duties in another station in the
district. While Mr. Ghose was thus absent from the headquarters, the judgment was
delivered on the 31st May, 1915, by Mr. U.B. Mookerjee, the second Subordinate
Judge, who was in charge of the first Court during the temporary absence of Mr.
Ghose. The decree was drawn up in due course and was signed by Mr. Ghose on the
4th June 1915, but as required by Order XX, Rule 7 of the Civil Procedure Code bore
the date when the judgment was pronounced, that is, the 31st May, 1915. As the suit
was decreed by the Subordinate Judge, the defendants have appealed to this Court,
and the only point pressed is that there is no legal judgment which can form the
foundation for a valid decree.
2 . The provisions of the Civil Procedure Code, relevant for the determination of the
question raised, are as follows:
3 . Order XX, Rule 1. "The Court, after the case has been heard, shall pronounce
judgment in open Court, either at once or on some future day, of which due notice
shall be given to the parties or their pleaders."
4. Order XX, Rule 2. "A Judge may pronounce a judgment written but not pronounced
by his predecessor."
5 . Order XX, Rule 3. "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."
6. It is plain that in the case before us, the judgment was not pronounced, dated and
signed in conformity with the requirements of the Code. Here it may be observed that
the paper signed by Mr. Ghose and kept on the record could not be treated as a valid

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 judgment till it had been pronounced in Court; this view is supported by decisions of
unquestionable authority. In Brand v. Hammersmith and City Ry. Co. (1867) L.R. 2
Q.B. 223, 235, 246, Erie C.J. was one of the Judges who heard the case; he prepared
a judgment, which could not be delivered as the other members of the Court were not
then ready to give judgment. The Chief Justice resigned before the case could be set
down for delivery of judgment and the opinion recorded by him was not treated as a
judgment. This was followed by Peacock C.J. in Mahomed Akil v. Asadunissa Bibee
(1867) 9 W.R. 1. That case was heard by a Full Bench of nine Judges. Judgment was
reserved after conclusion of the hearing, and the Judges from time to time lodged with
the Registrar copies of the judgments which they respectively intended to deliver. Two
of these Judges retired from the Court, and one died before the case was set down for
delivery of judgment. It was unanimously held by the other six Judges (who were
themselves equally divided in their opinion on the merits) that the opinions recorded
by their late colleagues were only minutes or memoranda and could not be treated as
operative judgments. The result was that, under the Letters Patent, the opinion of the
Chief Justice prevailed, whereas the decision would have been to the contrary effect, if
the rejected opinions had been taken into account. A still more remarkable instance of
the principle applicable to cases of this character will be found in Lachman Prasad v.
Ramkishan I.L.R. (1910) 33 All. 236. There, the Subordinate Judge heard an appeal,
recorded in the order sheet that judgment would be pronounced on a date mentioned,
wrote out what took the form of a judgment in the case, and placed it on the record.
But before the appointed day arrived, he ceased to be Subordinate Judge of the place.
His successor in office did not pronounce the judgment written by him, examined the
records, took a totally different view of the case, and delivered a judgment contrary to
what, it would appear, the Judge who had heard the appeal had intended to deliver.
The Allahabad High Court held that, though the new Judge might have pronounced the
judgment prepared by his predecessor, he was not bound to do so. He had an option
in the matter, so that it was competent to him to treat the case as still undisposed of
and to deliver his own judgment. There is thus no escape from the conclusion that, in
the case before us, the judgment required to be delivered was pronounced, dated and
signed in contravention of the specific provisions of the Code, and the question
inevitably arises, whether this constitutes an irregularity which could be waived or an
illegality which nullified the proceedings.
7 . The determination of this point must depend upon the nature of the rules which
have been infringed; if the act of the Court was without jurisdiction, or infringed a rule
prescribed on grounds of public policy, the proceeding became a nullity; if it was, on
the other hand, only ah irregular exercise of jurisdiction, a contravention of rules
framed by the Legislature with a view to afford protection to the individual litigant, he
might clearly waive the benefit thereof and would not be entitled to obtain a reversal
of the decree except on proof that the merits had been affected (Section 99 of the Civil
Procedure Code). The mere fact that the Court had acted in a manner contrary to that
prescribed by the Code does not necessarily show that what was done was a nullity
[Ashutosh Sikdar v. Behari Lal Rirtania I.L.R. (1907) 35 Calc. 61 the effect depends
upon the nature, scope and object of the particular provision which has been violated.
As pointed out in Macnamara on Nullities and Irregularities; though no hard and fast
line of demarcation can be drawn, an irregularity is a deviation from a rule of law
which does not take away the foundation or authority for the proceeding or apply to its
whole operation, whereas a nullity is a proceeding that is taken without any
foundation for it or is so essentially defective as to be of no avail or effect whatever,
or is void and incapable of validation [see the observations of Coleridge J. in Holmes
v. Russel. (1841) 9 Dowl. 487, and of Taunton J. in Garratt v. Hooper (1831) 1 Dowl.
82]. If we test the case before us in the light of these principles, what is the position?
As explained in Sukhlal v. Tarachand I.L.R. (1905) 33 Calc. 68, 71, jurisdiction, which
is the power of a Court to hear and determine a cause, to adjudicate or exercise

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 judicial power hi relation thereto, divides itself under three heads, with reference to
(a) the subject matter, (b) the parties and (c) the particular question which calls for
decision. The substance of the matter then is that here the Court had jurisdiction to try
the controversy between the parties, but acted, in the exercise of its undoubted
jurisdiction, in a mode contrary to that prescribed by statute. Non compliance with
every rule of procedure does not, however, necessarily destroy the validity of the
whole proceeding. We must accordingly examine the purpose of the rules which have
been infringed. The object of the Legislature seems to have been two fold, namely (a)
that the contending parties should be speedily and publicly apprised of the decision of
the Court, and (b) that the Court should have an opportunity for immediate
reconsideration on the representation of the parties, which, after the judgment has
been signed, can be done only on a formal application for review (Section 114) or for
amendment (Section 152). The provisions of the law relating to the delivery of
judgment may consequently be deemed to have been framed for the benefit of the
parties litigant and their contravention is an irregularity curable by consent or waiver.
This is clearly not a case of lack of inherent jurisdiction, where the maxim applies that
consent cannot give jurisdiction: Golab Sao v. Chowdhury Madho Lal (1905) 2 C.L.J.
384, Gurdeo Singh v. Chandrikah Singh (1907) 5 C.L.J. 611. Nor is this a case of a
mandatory provision of law, the infringement whereof nullifies the entire proceedings:
Ashutosh v. Behari I.L.R. (1907) 35 Calc. 61, 74. The Liverpool Borough Bank v.
Turner (1860) 2 DeG.F. & J. 502. In the case before us, when the judgment prepared
by Mr. Ghosh was about to be pronounced by Mr. Mookerjee, no objection appears to
have been taken by either party; if objection had been taken, the delivery of the
judgments might and would in all probability have been postponed till Mr. Ghosh
could return to headquarters. Finally, there is no Suggestion that the appellant has
been prejudiced in any manner by the failure of the Court to pronounce judgment in
conformity with the rules.
8. We hold accordingly that the infringement of the procedure prescribed by Order XX,
Rules 1, 2, 3, constituted an irregularity which was waived by the parties, did not
affect the merits of the case, and thus affords no ground for reversal of the decree
based on the judgment irregularly pronounced. The appeal fails and is dismissed with
costs.

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