P L D 1964 Supreme Court 446 (PLP)

Date of hearing : 28th April 1964. S. A. RAHMAN, J.‑This appeal comes before this Court in the following circumstances. A suit for possession of certain lands was instituted by Qazi Mehar Din, deceased, (now represented by the appellants who are his legal representatives) against the respondents. The suit was decreed by the learned District Judge, Rahimyarkhan, on the 30th of December, 1943. An appeal was taken by the respondents to the High Court at Baghdad‑ul‑Jadid and it was heard by Syed Ghulam Murtaza Shah, a learned Judge of that Court. The appeal was allowed, the decree of the learned District Judge set aside and the suit of the plaintiff dismissed. Qazi Mehar Din then presented a constitutional appeal in the High Court on 15‑4‑

48. This appeal came up for hearing before a Division Bench of the High Court consisting of the Chief Justice and Sardar Mahmud Khan, J. A technical objection to the competency of the appeal, owing to a necessary party not being impleaded within time, prevailed with the Division Bench and the appeal was dismissed on the 27th February 1950. Before judgment was pronounced in that appeal, however, a regular constitutional civil appeal was also presented on behalf of the plaintiff on the 28th December, 1949, along with an application under section 5 of the Limitation Act, praying for extension of time for the presentation of the appeal. Qazi Mehar Din had also preferred an appeal to the Judicial Committee of the Bahawalpur State from the order of the Division Bench dated the 27th February 1950. That appeal was still pending when the parties were given notice to appear in the High Court in connec tion with application and the constitution appeal preferred by the plaintiff on the 28th December 1949. After hearing the parties' counsel, this appeal was dismissed on the ground that it was not competent, the previous appeal of the plaintiff having been duly disposed of. An objection had been taken in the High Court that the judgment which was pronounced by the learned Single Judge, Mr. Ghulam Murtaza Shah, had been written and signed by him after he had handed over charge and had become a Minister of the Bahawalpur State and that consequently the judgment was not a valid judicial pronouncement. S. Mahmud Khan, J. had replaced him in the High Court. The factual position in this regard was not controverted in the High Court but relying on a decision of the Allahabad High Court reported as Baramdeo Pandey v. Debi Dat Singh (A I R 1931 All. 90), it was held that the judgment was not vitiated by the fact that the learned Judge had written and signed it after he had retired from the Court. Reference was also made in this connection to Order XX, rule 2 of the Code of Civil Procedure. The main question argued before us is whether the view that found favour with the High Court was sound in law. Rule 2 of Order XX of the Code of Civil Procedure is in the following terms :‑ "A Judge may pronounce a judgment written but not pro nounced by his predecessor." A reasonable construction of this provision would be that the judgment in question should have been written at a time when the Judge writing it, occupied the position of predecessor of the Judge who later pronounced it, that is to say, the writing of the judgment should have been within the time that the person in question was not separated from the judicial office. If a wide interpretation were given to the words so as to bring within the purview of this provision, any judgment written by a Judge after he had ceased to be a judicial officer, would mean that a writing should be treated as a judicial pronouncement even when it is written by a person who in the case of a High Court Judge was no longer bound by the oath of his office and was functus officio. Such a conclusion can be avoided if the narrower interpretation suggested above is adopted. In the case relied on by the High Court, the facts were that a District Judge had resigned his post and retired from office with effect from the 4th of October 1927. It was observed by the learned Judges in that case that there was no material before them to suggest on what date the resignation of the District Judge was actually accepted. They surmised that in the ordinary course that even might have taken place at a date long subsequent to the 4th October 1927, the date from which it had retrospective effect. The judgment to which exception was taken in that case, was signed on the 9th October 1927, and was pronounced in Court by the successor of the District Judge on the 17th October 1927. It is not therefore clear whether the Judge had ceased to hold judicial office when he wrote the impugned judgment. Reference was made in the course of the judgment in the above‑cited case to Lachhman Prasad v. Ram Kishan ((1911) 33 All. 236) and Satyendra Nath Roy v. Kastura Kumari Ghatwalin ((1908) 35 Cal. 756), which were cases of pronouncement of judgments written by Judges who had been transferred, by their successors. In the first case it was held that under Order XX, rule 2, the successor Judge had the discre tion to pronounce the judgment that was forwarded to him or to come to a decision himself, different from it. In the second case, it was ruled that a judgment may be written by a Judge after he had been transferred or had proceeded on leave and that it may be pronounced by his successor. None of these cases, it is clear, related to a Judge who had retired from service. The learned Judges, however, remarked that they could see no distinction between the writing of a judgment by a Judge who had gone on retirement and by one who had gone on leave or had been transferred. They relied on the fact that the words of rule 2 of Order XX, C. P. C. were unqualified and therefore no valid objec tion existed to the impugned judgment. With respect, it seems to me, that the word "predecessor" occurring in rule 2 of Order XX, C. P. C. contains an inherent limitation and qualification, namely that the writer of the judgment should have occupied the position of "predecessor" at the relevant time. Mr. Ghias Muhammad on behalf of the respondents invited our attention to a decision of the Lahore High Court in Daya Ram v. Mst. Jatti (A I R 1916 Lab. 78) and to a judgment of the Rangoon High Court in Hargulal v. Abdul Gany Hajee Ishag (A I R 1936 Rang. 147.), beside placing his reliance on the cases discussed above. The Lahore case pertained to a judgment written by a Judge after his ‑transfer and is therefore distinguishable from the instant case. In the Rangoon case, however, a Full Bench of that Court opined that a judgment written by an ex‑Judge after he had ceased to be a Judge, was a valid judgment and it may be pronounced by his successor in office under Order XX, rule 2 of the Civil Procedure Code. Page, C. J. who wrote the judgment in that case, at the outset of his opinion, observed as follows :‑ "Now if the matter had been res integra, I should have been disposed to think that a judgment which could be pronounced by the successor‑in‑office of an ex‑Judge must have been written and signed by the ex‑Judge before he became functus officio, because after a person had ceased to be a Judge of the particular Court in which the trial was held, he had no further jurisdiction to act in connection with the affairs of that Court by way of writing a judgment or otherwise. It appears further that there had been a consensus of judicial authority in favour of the view that even after a Judge has ceased to have any jurisdiction in a Court because he has retired or has proceeded on leave or has been transferred from the Court in which the trial was held, he is entitled, having heard the evidence, to write and sign a judgment, and that his successor, in his discre tion, may pronounce the judgment in his stead." The learned Chief Justice then proceeded to examine the cases cited before the Full Bench and apparently feeling pressed by the authorities, decided to take the view contrary to his own personal reaction, to the point of law raised. With deference, it seems to me, that the personal view of Page, C. J. was to be preferred to that which he seems to have reluctantly adopted, after examina tion of the authorities cited. Another case to which our attention was called is Basant Bihari Ghoshal v. The Secretary of State for India‑in‑Council (I L R 35 All. 368). That was also a case of a judgment written by a District Judge after he had ceased to exercise jurisdiction in a particular district after transfer to another district. In most of the cases which have been referred to above the position was similar and the question only was whether ceasing to have territorial jurisdiction within the area concerned, would vitiate a judgment written by a Judge or not. Objections to territorial jurisdiction stand on a different footing from objections to jurisdiction on the ground that the officer in question had become functus officio at the relevant time. A consideration of the provisions of section 21 of the Code of Civil Procedure would serve to bring out this difference. This section enacts that no objection as to the place of suing shall be allowed by any appellate or revisional Court, unless such objec tion was taken in the Court of first instance, at the earliest possible opportunity and in all cases, where issues are settled, at or before such settlement, unless there has been a consequent failure of justice. There seems to be an underlying assumption in this provision that there is no Inherent lack of jurisdiction in such cases and the objection is merely of a procedural rather than of a fundamental character. The cases, therefore, in which judgments written by person after transfer or on leave, were held to be valid, would not be sufficient authority for the view that a judg ment written by a Judge who had ceased to hold his office would also be immune from exception. Such a view has potentialities of great mischief and if by reasonable construction of the statutory provision it could be avoided, the result would most probably be in conformity with the intention of the Legislature. I am, therefore, disposed to think that the narrower construction of Order XX, rule 2, C. P. C. should be adopted and it should be held that a Judge who has become functus officio, after being relieved of his office, should not be allowed to have anything to do with the judicial work of the Court over which he previously presided. I would, therefore, allow the appeal with costs and set aside the orders passed by the Division Bench of the Bahawalpur High Court. The result would be that the first appeal in the High Court would still be deemed to be pending as it was not disposed of, in accordance with law. K. B. A. Appeal accepted. A. R. CORNELIUS, C. J.‑I agree. FAZLE‑AKBAR, J.‑I agree. B. Z. KAIKAUS, J.‑I agree. HAMOODUR RAHMAN, J.‑I agree.