P L D 1997 Karachi 36 (PLP)

Before hearing of the application on merits, a legal question was raised about the short order dated 13-4-1995 passed by my learned brother late Mr. Hussain Adil Khatri, J. (as he then was). On 16-4-1996, I directed all the learned advocates to address on the question of legality of the short order which was pronounced orally by a Judge in open Court but could not be signed till he ceased to be a Judge. No reasons were recorded by the late Judge in support of the said short order till his said demise. I have heard Mr. Abid S. Zubairi, Advocate for plaintiff and M/s. Gulzar Ahmed and Kazi Faiz Essa, Advocates for the defendants. According to the learned counsel for the plaintiff since the short order pronounced on 13-4-1995 was not signed by the learned Judge, it is to be treated at par with unsigned verbal order and, therefore, not binding in law. On the other hand, it is contended by the learned counsel for the defendants that once an order is orally pronounced and recorded though not signed, has legal sanctity and is binding in law. It is admitted position that the application in question was previously heard on 16-3-1995, 29-3-1995, 12-4-1995 and 13-4-1995 by the said learned Judge and on 13-4-1995 in open Court he orally announced and dictated short order to the judgment writer which was recorded on the case file. However, this order could not be signed by the late Judge nor could the reasons be recorded till his death in the month of March, 1996. In support of his contention, Mr. Abid . S. Zubairi has referred to the case of Muhammad Ramzan v. The State and others 1979 SCMR

200. In this case, a learned Judge of Lahore High Court after hearing arguments of one party orally. pronounced order allowing the quashment of proceedings filed under section 561-A, Cr.P.C. Subsequently, the other. side appeared who was also heard by the said learned Judge and as a result the application for quashment was dismissed. It was argued before the Hon'bie Supreme Court that the first order dismissing the quashment application was legal and subsequent order was not sustainable in law but the contention was disapproved. It was held that the pronouncement having been made orally and in the light of provisions contained in sections 366 and 369, Cr.P.C. the High Court was competent to re-hear the case before the judgment was actually recorded and sealed by the Court. This rule was followed by a learned Division. Bench of this Court comprising Mr. Latar Hussain Mirza and Mr. Nasir Asiam' Zahid, JJ. (as their lordships then were) in the matter of Office Reference dated 28-4-1981 PLD 1982 Kar.

250. In this case, three different references were made as a result of retirement of three Judges of this Court. These reference were summed up into three following questions: "(1) What is the effect of' a decision orally announced in Court without recording an order signed by the Judge or the Judges concerned? (2) What is the effect of a decision in which a short order has been recorded, signed by the Judge or the Judges concerned, but the detailed reasons are not recorded subsequently? (3) In cases falling under No.2 above, what procedure should be adopted, i.e. whether reasons can be recorded by Judges who are available and sitting Judges of this Court? After considering various case-law including the case of Surendra Singh and others v. State of Uttar Pradesh AIR 1954 SC 194, the learned Division Bench came to the following conclusion: "In view of the above, we have reached the conclusion that in cases where verbal orders were announced without recording them even by way of a short order with the signature of the Judge or Judges concerned, no operative decision in law can take effect and these cases must be deemed to be pending to be disposed of after rehearing the parties. The cases in which short orders have been recorded and signed by the concerned Judges, these cases stand disposed of as these orders are fully operative in law. In the last-mentioned cases the Judges who have ceased to hold office cannot record reasons, but in cases in which one of the Members of the Bench was a Judge who is available, he may be requested to record his reasons in support of the decision which, will, however, serve as minutes of his individual opinion for use as deemed fit by the Supreme Court in case appeals are filed against such orders." (Underlining is mine.) Mr. Kazi Faiz Essa in support of his contention has referred to the cases of Vinod Kumar Singh v. Banaras Hindu University and others 1989 MLD 3215, Saru Smelting and Refining Corpn. Ltd., Meerut v. State AIR 1951 Allahabad 709 and Sitrendra Singh and others v. State of Uttar Pradesh AIR 1954 SC

194. In the last reported case, the Supreme Court of India after referring to the several provisions of Indian Criminal Procedure Code including section 537 held that a judgment 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 was further held that it is a judicial act which must be performed in a judicial way. It was further held that a Judge is empowered to change his view before final pronouncement as a draft is not at par with the judgment In the case of Saru Smelting and Refining Corporation. Ltd., Meerut, a learned Singly Judge of Allahabad High Court held that although a judgment dictated in open Court may be subject to alteration before its signing and that it cannot be said that such a judgment is not valid until signed. Different circumstances were discussed by the Supreme Court. of India in the case of Vinod Kumar Singh 1989 MLD 3215 where the judgments sometime orally announced or remain to be signed. Following is the relevant para.: "

9. Ordinarily judgment is not delivered till the hearing is complete by listening to submission of counsel and perusal of records and a definite view is reached by the Court in regard to the conclusion. Once that stage is reached and the Court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstances or a review is asked for and is granted. When the judgment is pronounced, parties present in the Court know the conclusion in the matter and. often on the basis of such pronouncement, they proceed to conduct their affairs. It what is pronounced to court is not acted upon. "1) certain litigants would lie prejudiced. Confidence of the litigants in the judicial process would be shaken. A judgment pronounced in open Court should be acted upon unless there be some exceptional feature and if there be any such the same should appear from the record of the case. In the instant matter, we find that there is no material at all to show as to what led the Division Bench which had pronounced the judgment in open Court not to authenticate the same by signing it. In such a situation the judgment delivered has to be taken as final and the writ petition should not have been placed for fresh hearing. The subsequent order dismissing the writ petition was not available to be made once it is. held that the Writ petition stood disposed of by the judgment of the revision Bench on 28-7-1986." (Underlining is mine.) Mr. Gulzar Ahmed, Advocate appearing for the defendants Nos.3 and 4 has referred to rule 557 of the Sindh Chief Court Rules (O.S.) in support of his contention that the judgments may either be oral or written. In sub-rule (3) to rule 257 a process is described to make the oral judgment effective. It is mentioned in the said sub-rule that when an oral judgment is delivered it shall be taken down by a shorthand writer who will prepare a transcript for correction by the Judge who will deliver the judgment. It is further provided in Rule 257(3) that a fair copy of transcript of the corrected judgment signed by the Judge or Judges with dates shall be formed the record of the judgment. I am of the view that the procedure prescribed in this Rule is also applicable in the matter of announcement of orders. Mr. Abid Zubairi, Advocate for the plaintiff has also referred to the case of Muhammad Amin v. Muhammad Ramzan PLD 1988 Lah. 331 where it was held that when a judgment is pronounced, reduced into writing but was not signed and the Judge was subsequently transferred is not judgment in the eyes of law. The learned Judge Mr. Abdul Shakurul Salam, J. (as he then was) held this view after referring to Rule 2 of Lahore High Court Rules, Vol.I, Chapter 11(a). The present case has a very peculiar circumstance and in my view is not covered by, the facts of the abovementioned reported cases. In the present case the short oral order was announced in the open Court which has not been denied by any of the parties whereby C.M.A. 3210 of 1994 was dismissed and the ad interim injunction granted earlier in favour of plaintiff was recalled. In support of this order there is also the diary of Reader of the Court which indicates that this application was dismissed. Therefore, for nearly 11 months, neither this short order was signed by the said learned Judge nor detailed reasoning was given for the said short order. Neither any appeal nor review was preferred by the plaintiff during all this period of eleven months. This inaction on the part of plaintiff shows that he accepted the said oral order. Now, it is too late in the day for him to turn round and say that the application is still pending. There is no material before this Court which may indicate that the learned Judge, at any subsequent stage during his lifetime, was inclined to review his decision announced in the open Court. No doubt the party has suffered great hardship, but in my considered view great sanctity is attached to an oral order pronounced by the learned Judge in the open Court which fact isle admitted by all the learned counsel appearing for the plaintiff and for the defendants. In case if any dispute as to the fate of an application is agitated then in my view the rule laid down by the learned Division Bench of this Court in the case Office Reference dated 28-4-1951 (PLD 1982 Kar. 250) was fully attracted. In the instant case it is admitted that the application was dismissed and the earlier order of ad interim injunction was recalled in the open Court. No doubt a Judge is competent to review his findings or final' conclusion before signing the same order as held by the Hon'ble Supreme Court in the case (sic) of the parties, I am inclined to hold that some legal sanctity C should be attached to the verbal/oral order pronounced by my learned brother (now deceased). I would, therefore, hold that the instant application C.M.A. No.3210 of 1994 as already dismissed. A. A./B-8/K Order accordingly.