1990 PLP 588 (MLD)

(4) If issue above is proved, whether the promissory note is without consideration? (5) Whether this Court lacks jurisdiction to try this suit? (6) Whether the defendant is entitled to special costs under Section 35‑A, C.P.C2 If so, to what amount? (7) Relief.

4. The learned trial Court by judgment and decree dated 30‑7‑1986 decreed the suit. The trial Court decided issues No.l, 2 and 5 together and held that the promissory note was not a bond and was, therefore, not impoundable under Section 35 of the Stamp Act and that the Court had jurisdiction to try the suit. Issues No.3 and 4 were decided together and answered affirmatively in favour of the plaintiff. Hence this First Appeal.

5. Learned counsel for the appellant in support of appeal raised two‑fold objections; firstly it was contended that the trial Court did not consider the evidence of DW‑1, DW‑2 who had categorically stated that the promissory note was in fact without consideration. Therefore, the finding of the trial Court on issues No.3 and 4 was totally incorrect and needed to be reversed. Secondly it was urged with vehemence that the trial Court did not conduct the trial in accordance with the mandatory requirement of rules 8 and 14 of Order 18 of the Code of Civil Procedure which cast the duty upon the learned trial Court to prepare a memorandum of evidence of witnesses if he did not record the evidence of witnesses in his own hand. It was suggested that the duty cast upon the trial Court under the aforenoted rules was of a compulsive character and, therefore, its non- compliance had an effect of vitiating the whole proceedings. Reliance was placed on Nand Lal and another v. Pooran and another AIR 1956 Rajasthan 9, Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 and Muhammad Shafi v. Sh. Muhammad Amin and another 1984 CLC 1528.

6. It was contended that it was a settled principle of construction, that if a duty was cast upon the public functionaries to perform their functions within the framework of a particular procedure, the duty was of an imperative nature and its neglect would have a vitiative effect upon all proceedings conducted by them.

7. On the other hand learned counsel for the respondent supported the impugned decision. On merits it was urged that the findings of the trial Court on issues No.3 and 4 were recorded after careful consideration of the evidence and material on record. As far as the legal question was concerned, it was replied that the requirements under rules 8 and 14 of Order 18 of the Code of Civil Procedure were directory in nature. In this context it was urged that the object of these rules was to insure the accuracy of the record. In this case, the learned counsel for the appellant, it was urged, had not raised any objection with respect to accuracy of the statements recorded by the trial Court. It was vehemently contended, therefore, the non‑compliance of the aforenoted rules did not occasion any prejudice and, therefore, the objection must fail on this account.

8. I have carefully heard the arguments of the parties and perused the record with their capable assistance. As noted above, the case was founded upon the pronote EX.PI and receipt Ex.PB. The execution of the pronote and receipt Ex.PB was proved by PW 1 Muhammad Amir, the scribe of the document, PW2 Syed Daood Hussain who attested the document. PW3 Saleh Muhammad gave evidence in respect of the receipt of consideration. The aforesaid witnesses were H subjected to cross‑examination but nothing was extracted to shake their evidence, therefore, I am clear in my mind that the execution of the document and the passing of the consideration stood amply proved by the aforenoted evidence. The h burden shifted to the defendant/appellant to rebut the evidence and presumption flowing from Section 118 of the Negotiable Instruments Act, that every negotiable instrument is with consideration. The relevant portion of Section 118 ibid is as follows:‑

118. Until the contrary is proved, the following presumption shall be made:‑ (a) of consideration; that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred, for consideration; (b) as to date that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) .............................. The effect of section 118 ibid was examined by the Supreme Court in Muhammad Boota v. Faiz Ahmad 1979 S C M R 465 in which while examining the question of presumption it was laid down that:‑ "On going through the copies of the pleadings of the parties and the evidence of the parties produced on this record, we have no hesitation in sharing this view with the learned Judge of the High Court. In fact as significantly pointed by the lower appellate Court Rashid Ahmad (D.W.3) in his cross‑examination had admitted the execution of the promissory note by the defendant in favour of the plaintiff through the deed‑writer. The thumb‑impression affixed on the promissory note in dispute was not seriously denied by the defendant and was otherwise sufficiently proved by the evidence of the plaintiff and his witnesses. Indeed the handwriting expert (PW 51 when produced by the plaintiff in support of his case was not at all cross‑examined on the point. There could be hardly any doubt as to the execution of the promissory note by the defendant in favour of the plaintiff. Therefore, under Section 119 of the Negotiable Instruments Act, it had devolved on the defendant to prove that the promissory note thus executed by him was without consideration. Apart from the cogent and consistent evidence led by the plaintiff to prove the payment of Rs.10,000 in cash by the plaintiff to the defendant as loan, the latter has miserably failed to discharge the onus of this issue resting on him."

9. Applying these principles to the facts of this case it is quite clear that the defendant failed to perform his part of burden to displace the presumption in favour of the due execution and the passing of the consideration, in the promissory note. The evidence .of DW 1 and DW 2 is hardly of any help to the case of the defendant. The aforesaid witnesses made the deposition with respect to version of a sale of plot by the defendant in favour of the plaintiff. They never uttered a word with respect to execution of promissory note. DW 2 uttered ignorance about the execution of promissory note or receipt of consideration. Therefore, the evidence worth consideration is only the evidence of Bahadur Ali appellant himself. He stated that he purchased trees worth Rs.1,50,000 from the plaintiff. He did make a payment of Rs.5,000 as earnest money to him. It was only when he started cutting the trees, he became aware that the trees were situated in the land belonging to Auqaf Department. He, therefore, went to the plaintiff and stated that deal was not acceptable to him, that he wanted to bring an end to the contract whereupon the plaintiff asked him to cut as many trees as he could, that he will receive the price for the cut trees, that he had paid him Rs.80,000 and Rs.35,000 were outstanding. In order to wipe out the outstanding amount he made a sale of plot in favour of the plaintiff in consideration of Rs.60,

000. Unfortunately the price of plot was recited in the sale‑deed as Rs.15,

000. During this bargain, the plaintiff obtained his signatures through deceit and fraud, on the document.

10. It will be noticed that the version given by the appellant has no legs to stand upon. The version was not given in the application for leave to defend. This version was even withheld in the written statement, that no offset was claimed, therefore, I have no hesitation in corning to the conclusion that the version given by the plaintiff is not worth credence and was rightly disbelieved by the learned trial Court. I, therefore, repell the argument of the learned counsel for the appellant on merits.

11. Reverting to the legal objection that the prescriptions in rules 8 and 14 of order 18 of the Code of Civil Procedure are compulsive, it will be appropriate to notice the relevant rules. These rules are as under:‑ Rule 8: Memorandum when evidence not taken down by Judge.‑‑Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record. Rule 14: Judge unable to make such memorandum to record reasons of his inability.‑‑(1) Where the Judge is unable to make a memorandum as required by this Order, he shall cause the reasons of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court. (2) Every memorandum so made shall form part of the record.

12. It is a well‑settled principle of law that no hard and fast rules can be laid down for construing a provision as mandatory or a directory. The use of words "shall" or "may" are not sure test for such determination. The object of the relevant provision has to be taken into consideration after the examination of the whole of the statute in which these provisions are embodied.

13. The object of the Procedural Law is to help and not to hinder the grant to the peoples of their rights. All the technicalities have to be avoided unless they are essential to comply with them on the ground of public policy. Any system which gives effect to form and not to substance defeats the substantive right and is not conducive to the object of dispensation of justice. This principle was a enunciated in Imtiaz Ahmad v. Ch. Khushi Muhammad S.D.O. (Canal), Gojra District Lyallpur and the District Election Officer, Lyallpur P L D 1963 S C 382.

14. It will be appropriate to examine certain precedents in which the effect of non‑compliance of rules 8 and 14 has been considered. This proposition came up for consideration in Promode Nath Sinha Roy and others v. Harishee Bagdhi A I R 1929 Calcutta

78. While considering the effect of non‑compliance of the aforenoted rules, it was laid down that the non‑compliance with the aforenoted rules in absence of any allegation of prejudice was not of invalidating nature. The relevant observations are as follows:‑ "But there was only one record of the evidence, and that was not taken down in writing by the Judge himself, and no memorandum was made or caused to be made by the Judge. The provisions of Order 18, Rr.5, 8 and 14, therefore, were not complied with. In my opinion, however, the recording of the evidence in the manner followed in the present case was not an illegality that rendered the decree based upon it null and void, but amounted merely to an irregularity; Fort Closter Jute Manufacturing Co.v. Chandra Kumar Das (1919) 46 Ca1.979, Queen Empress v. Gopal Goundan (1896) 19 Mad. 269)".

15. In Calcutta case reported as Fort Closter Jute Manufacturing Co. v. Chandra Kumar Das and another 51 Indian Cases 405 a Division Bench considering the effect of non‑compliance with rules 1, 2 and 3 of Order 20 of the Code of Civil Procedure came to the conclusion that the non‑compliance with the requirement of the aforenoted rules never amounted to nullification of the proceedings. It was observed as follows:‑ "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 an 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 could not be entitled to obtain a reversal of the decree except on proof that the merits had been affected (section 99, 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 Lai Kirtania (35 C 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 observation of Coleridge, J., in Holmes v. Russell (1841‑ 9 Dowl. 487) and of Taunton, J. in Garrat v. Hooper (1831 ‑ 1 Dow1.28). If we test the case before us in the light of these principles, what is the position? As explained in Sukh Lai Sheikh v. Tara Chand Ta (33 C.68), jurisdiction, which is the power of a Court to hear and determine a cause, to adjudicate or exercise judicial power in 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 judgments 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 Lai (2 C L.H.384), Gurdeo Singh v. Chandrika Singh (1 Ind.Cas.913). Nor is this a case of a mandatory provision of law, the infringement whereof nullifies the entire proceedings: Ashutosh Sikdar v. Behari Lal Kirlania (35 C 61), Liverpool Borough Bank v. Turner (7960 ‑ 2 Deg F & J 502). In the case before us, when the judgment prepared by Mr.Ghose 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 judgment might and would in all probability have been postponed till Mr. Ghose 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."

16. The same principle was highlighted in Elahi Baksha Kazi v. Emperor (45 Indian Cases 258 ‑ Calcutta case) while considering the effect of non‑compliance g of rule 5 of Order 18 of the Code of Civil Procedure, the Court laid down that the rule was not of a mandatory character.

17. A few words may be said about Nand Lai and another v. Pooran and another A I R 1956 Rajasthan 9 on which the learned counsel for the appellant heavily depended. The facts of the case are entirely distinguishable and are of least help to the case in hand. In this case, his Lordship was considering a revision petition tiled by the plaintiff against the judgment of a Civil Judge in two suits for recovery of the prices, as a Small Cause Court in which no appeal was provided. 1n this case, the learned trial Court in violation of rules 13 and 14 got recorded the memorandum of evidence by a clerk while the learned Judge remained busy in doing other work. An affidavit was given that the whole proceedings before the first Court were conducted in highly surreptitious manner. The reply of the Court was not accepted as satisfactory by the Court. In the context of the aforesaid circumstances, the Court accepted the revision petition and held that the trial was conducted in the manner which was not prescribed by the Court and, therefore, it was nothing but travesty of the trial.

18. As indicated in Nand Lal and another v. Pooran and another A I R 1956 Rajasthan 9, the learned Judge was examining the case in which the learned trial Judge had completely defied the clear mandate of the law in an extremely brazen manner occasioning serious doubt about the record of the case.

19. The ratio emerging from the aforesaid principles is:‑ (i) that the provisions of the procedural law are intended to facilitate and not to throttle the administration of justice. The calls of substantial justice must prevail over the logic on the basis of technicalities. (ii) that the object of rules 8 and 14 of Order 18 of the Code of Civil Procedure is to insure the accuracy of the record. The preparation of correct record is the foundation of dispensation of justice as finally the judgment is to be rendered on the basis of this record; (iii) that the trial Court shall prepare the record in accordance with these rules in order to obviate any allegations or counter allegations in preparation of the incorrect record; (iv) that the duty cast upon the Courts is for the benefit of the litigant public. If there is any non‑compliance or neglect in the performance of the duty that is subject to waiver if the parties do not choose to make objection at the time of neglect or non‑compliance; ‑ (v) that non‑compliance or neglect of duty in the context of aforenoted rules in absence of allegations of inaccurate preparation of record or prejudice is irregularity and is not illegality.

20. Applying these principles to this case I have no difficulty in coming to the conclusion that neither the appellant raised any objection in respect of this non -compliance before the trial Court nor raised any objection with respect to any accuracy in the preparation of the record occasioning prejudice or injustice to him. Therefore, I am clear in my mind that the objection rooted in technicalities must fail and is accordingly repelled.

21. No other point was raised before me.

22. In the result I find no substance in this appeal. The decree and judgment passed by the trial Court is based upon the correct appraisement of evidence and application of law. The appeal is accordingly dismissed with costs. M.B.A./B‑169/L Appeal dismissed.