P L D 1955 Dacca 9 (PLP)

AMIN ARMED, J.‑On a Reference made by the learned Munsif, Bajitpur, by his letter, No. 61, dated the 21st February, 1952, to this Court through the District Judge, Mymensingh, this Rule was issued suo motu by this Court on the parties in O. C. Suit No. 74 of 1949 of the Court of the Munsif, 1st Court, Bajitpur, to show cause why the judgment delivered by the Munsif on the 24th June, 1950, should not be recorded as the proper judgment in that case. Mr. Nandalal Das appears before us to oppose this Rule. No one appears in support of this Rule. This is a curious case in which two judgments relating to the same matter and signed by the same presiding judge have been the subject matter of controversy. It appears that a suit under section 9 of the Specific Relief Act for restoration of possession was filed and it was heard by Mr. Shamsur Rahman, the then Munsif, 1st Court, Bajitpur, on the 20th June, 1950, and on that date, as it appears from the order‑sheet, it was fixed for delivery of judgment on the 24th June, 1950, and on that date the suit was dismissed. The order passed on that date is to the following effect: "Judgment delivered. The suit is di5mjs ed on contest as per judgment in separate sheet." A decree was also drawn up in accordance with the judgment delivered on the 24th June, 1950. But on the 17th April, 1951, an application under sections 151 and 152 of the Code of Civil Procedure was filed before the successor‑in‑office of Mr. Shamsur Rahman for rectification of the record and for amendment of the decree on the ground that the suit was really decreed for possession although inadvertently it was recorded that the suit was dismissed. In support of this the plaintiff opposite party relied on a judgment purported to have been written and signed by the same Presiding Officer, Mr. Shamsur Rahman on the 22nd June, 1950, decreeing the said suit. There is no dispute as it appears from the explanation of the then Munsif of Bajitpur, Mr. Shamsur Rahman who is at present a Munsif at Munshiganj, that both the judgments were by him. It also appears that the first judgment dated the 22nd June, 1950, decreeing the suit is a complete judgment in the sense that all the papers (2 pages) on which it was written from beginning to end together with the signature are intact but the other judgment, dated the 24th June, 1950, is not all intact as only the last page marked page No. 3 which contains the operative portion and the signature and is dated the 24th June, 1950 is only intact, and in the records we find that the first judgment dated 22nd June, 1950, has been stitched with the last sheet of the judgment dated the 24th June, 1950. As the successor of Mr. Shamsur Rahman found it difficult to dispose of a matter like this under the circumstances already mentioned, he made this reference under section 113 and Order 46, Rules 1‑5 of the Code of Civil Procedure. On going through the records the above Rule was issued by this Court. Mr. Nandalal Das, who appears to oppose this Rule on behalf of the plaintiff in these suits points out that inasmuch as the judgment dated the 22nd June, 1950, was written by the same judge and was also signed by him and is intact, it should be accepted in preference to the other judgment which in not complete and which cannot have been the judgment of the Court. Mr. Das has also drawn our attention to the date given at the top of the first judgment (dated 22nd June, 1950) that date being stated to be the 24th June, 1950. Mr. Das also refers to the order‑sheet and points out that even on the 24th June, 1950, the Court first wrote "decreed" and penned‑through it and then wrote "dismissed". We have gone through the explanation of the Munsif who admittedly wrote and signed both the judgments and it is clear from his explanation that although he did write all the judgments, he actually pro nounced one in Court on the 24th June, 1950, and he has very candidly stated that although he wrote the first judgment dated the 22nd June, 1950, as at the time he was of that view, after further consideration of the matter he changed his mind and wrote a different judgment and delivered the same on the 24th June, 1950. Following is the relevant portion of his explanation: "The judgment dated 24th June, 1950, is not now complete in this that its first two pages are not in the record. The sheet of judgment, dated 24th June, 1950, in the record is a continuation of another sheet. When I delivered the judgment (and I am in the habit of reading out my full judgment before the pleaders in open Court) I delivered it complete. I cannot now say as to what has happened to the first sheet of the judgment dated 24th June, 1950. The only thing is now certain that it is missing from the record. I thing I wrote out a judgment rather hurriedly (the time being perhaps just on the eve of my departure on transfer) and after I have written one it struck me that the decision I had arrived at, was not correct. It is not uncommon, among the Judges, that they change their views, sometimes on many pionts of law and fact and then come to a final decision which is embodied in a judgment. I then thought over the matter and read and re‑read the pleadings and evidence and then came to the final decision and wrote out the real judgment dated 24th June, 1950. I did not destroy the judgment I wrote out earlier and perhaps it was lying on the table where I wrote it. I then delivered the judgment dated 24th June, 1950. The Bench Clerk, it appears, picked up the last sheet of my real judgment and the only sheet of the former one and stiched there in the record. It is utter inadvertence of the Bench Clerk, that made the whole thing such as the pre sent one. That the judgment alleged to be dated 22nd June, 1950, was wrongly picked up to be coalesced with the real judg ment dated 24th June, 1950, will be apparent when we see that the Bench Clerk entered the dated `24th June, 1950' on the heading of the judgment dated 22nd June, 1950. The judg ment dated 22nd June, 1950, contained no heading because it was a memorandum and on 24th June, 1950, when the real judgment was delivered I asked the Bench Clerk to fill up the heading and the Bench Clerk missed the first sheet of the real judgment and replaced it with the other, inscribing the dated 24th June, on it. The different dates of the first judg ment, given in the heading and bottom will speak for itself and mess that the Bench Clerk made", From the order‑sheet also we find that no judgment was delivered on the 22nd June, 1950, although it is the date of the first judgment below the signature of the Munsif on which Mr. Das's client relies as the date of the real judgment. In our opinion the judgment of the 22nd June, 1950, cannot be taken as a good and valid judgment unless and until it is established that this judgment was the judgment which was actually pronounced in open Court with notice to the parties under the provisions of rule 1 of Order 20 of the Code of Civil Procedure and was also dated and signed by the judge in open Court at the time of pronouncing it as required by the provisions of rule 3, Order 20 of the Code of Civil Procedure. It is nowhere stated either on affidavit or otherwise that the Presiding Officer pronounced and signed the two judgments on two different dates nor is it stated that on the 22nd June, 1950, any judgment whatsoever in respect of the subject matter of this suit was pronounced by him, and even in the application under sections 151 and 152 of the Code of Civil Procedure no such allegation has been made. A Judge may write or re‑write any number of judgments for his own use and consideration, for he is entitled to consider, or reconsider or even rescind such judgments until a judgment is pronounced in open Court and signed. We have also tested the question by examining another aspect of the case. It is clear that the judgment was delivered either on the 22nd June, 1950, or on the 24th June, 1950, and admittedly the decree was signed on the 2nd October, 1950, and the present application under sections 151 and 152 of the Civil Procedure Code was not filed until the 17th April, 1951. The plaintiff opposite party cannot now be heard to say that he did not know anything of the order passed by the Judge by his judgment, dated the 24th June, 1950, dismissing his suit although the decree was signed on the 2nd October, 1950, after giving due notice to the parties under Rule 185 (1), Chapter 9 of Civil Rules and Orders, Vol. I, which runs thus: "As soon as a decree has been drawn up and before it is signed, a notice shall be posted on the notice‑board in the prescribed Form No. (M) 5, stating that the decree has been drawn up and that the parties or their pleaders may within three working days from the date of the notice peruse the draft decree in the office during the hours fixed by the Court for the purpose. The parties or their pleaders shall be given facilities to examine the original record, when perusing the draft decree. If the draft decree has been correctly drawn up, it shall be signed by the party or pleaders perusing it. If the party or pleader considers that there is a clerical or arithmetical error in the draft decree or that the draft decree is at variance with the judgment, he shall point out the error or variance to the Sheristadar, who shall either make the necessary correction himself or obtain the orders of the Court. The decree shall then be signed by the Presiding Judge." Even after the decree was signed on the 2nd October, 1950, the plaintiff did not then move the Trial Court or any superior Court against the decree for relief, and until his time for revision or other relief was barred he did not even file the present application under sections 151 and 152 of the Code of Civil Procedure. It is very unfortunate that the two pages of the judgment of the 24th June, 1950, should be missing and, owing to the indiscretion of the then presiding Munsif, both the judgment of the 2nd June, 1950, and that of the 24th June, 1950 (although only the third page is intact) happen to be signed and dated by him and put in the records. In the circumstances, we make the Rule absolute and we hold that the judgment dated the 24th June, 1950, is the only good and valid judgment, delivered by the Presiding Officer, Mr. Shamsur Rahman the then Munsif, 1st Court, Bajitpur. The reference is, therefore, disposed of in the following terms namely, that the judgment of the 24th June, 1950, is held to be a good and valid judgment of Mr. Shamsur Rahman and the decree drawn up in accordance with that judgment is also a good and valid decree ; that steps should be taken by the present Munsif of the 1st Court, Bajitpur, for the reconstruc tion of such portion of the judgment of the 24th June, 1950, as is missing; and that the first judgment, dated 22nd June, 1950, is not held to be a good and valid judgment and it will not be destroyed but it will be kept in the record with the remark "held not r, good and valid judgment by the Hon'ble High Court". Before we part with this case we must, however, observe that Mr. Shamsur Rahman, the then Munsif, 1st Court, Bajit pur, on his own showing on the eve of his transfer wrote the judgment hurriedly and left certain things to be done by his Bench Clerk. So, we direct the District Judge of Mymensingh to enquire into the matter as to how the two pages of the judgment, dated 24th June, 1950, came to be lost and the two pages of the judgment dated the 22nd June, 1950, came to be tacked on to the 3rd and only page of the judgment, dated the 24th June, 1950, and take such steps against the person or persons concerned as he may deem fit and proper, and call also for an explanation from Mr. Shamsur Rahman Munsif, through the District Judge of the District where he is posted at present as to how he came to sign and date both the judgments although he pronounced only one and submit his report thereof to this Court. BADIUZZAMAN, J.‑I agree. A. H. Rule made absolute.