Valipero
Vs. Fernandeo Lopez & Ors [1989] INSC 279 (19 September 1989)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Venkatachalliah, M.N. (J) Ojha, N.D. (J)
CITATION:
1989 AIR 2206 1989 SCR Supl. (1) 187 1989 SCC (4) 671 JT 1989 (4) 10 1989 SCALE
(2)642
ACT:
Calcutta
High Court Rules, 1914: Chapter XXII Rule 4--Omission of Signature of witness
on his deposition recorded on Commission-Defect whether fatal--Whether entire
evidence excluded.
HEAD NOTE:
When
the foreign vessel M.V. "Vali Pero" arrived at the port of Calcutta, 10
non-Greek seamen on board that ship filed a suit in the admiralty jurisdiction
of the Calcutta High Court for recovery of their dues. During the trial,
depositions of the defendants' witnesses were recorded on commission. Objection
was raised on behalf of the plaintiffs to reception in evidence of these
depositions on the ground of absence of witness' signature of the deposition as
required in Rule 4 of chapter XXII of the Calcutta High Court Rules, 1914,
applicable to the Original Side. The objection was upheld by the learned Single
Judge as also by the Division Bench.
The
learned Single Judge then decreed the suit on the unrebutted evidence of the
plaintiffs. One Special Leave Petition has been filed against the judgment of Division
Bench affirming the order of the learned Single Judge excluding the defendants'
evidence. The other Special Leave Petition has been filed against the judgment
of the learned Single Judge decreeing the plaintiff's suit after excluding the
defendants' entire oral evidence.
On
behalf of the' appellants it was contended that omission of witness' signature
on the deposition recorded by the Commissioner did not invalidate the
deposition atleast in a case like the present where the correctness and authenticity
of the deposition was undisputed; that in this sense the requirement of the
witness' signature on the deposition was not a mandatory requirement; that the
defect was curable by obtaining the witness' signature even now; that the
respondents' counsel had admitted the correctness of the depositions; and that
the respondents had omitted to raise any objection will after the suit was
closed for judgment.
In
reply, the respondent relied on the reasons 188 given in the Division Bench's
judgment construing the requirement in Rule 4 as mandatory. It was also urged
that the argument of curing the defect by obtaining signatures even now was not
advanced in the High Court and should not be permitted at this stage.
Allowing
the appeals and remanding the suit to the learned Single Judge to be decided
afresh, this Court,
HELD:
(1)
The requirement of witness' signature on the deposition in Rule 4 is directory
even though the requirement of the deposition being recorded, read over to him
and corrected wherever necessary is mandatory. Mere omission of the witness'
signature on the deposition does not render the deposition invalid when the
correctness and authenticity thereof is undisputed. [196F]
(2)
The essential requirement of Rule 4 is that the deposition of a witness
examined on commission shall be taken down in writing, read over, and where
necessary, translated to the witness in order that mistakes or omissions, if
any, may be rectified or supplied. The mandate in Rule 4 to this extent must be
complied strictly in order to ensure a correct record of the deposition.
[196B-C]
(3)
The signature of the witness is not a part of the deposition and apart from
acknowledging the correctness of his deposition on the deposition itself, it is
not essential for any other purpose in this context. [196D]
(4)
While the essential requirements of Rule 4 are no doubt mandatory requiring
strict compliance, the requirement of witness' signature therein is directory
of which substantial compliance is sufficient. [196G]
(5)
There is substantial compliance of this directory requirement where the
correctness and authenticity of the deposition is undisputed. Compliance can be
had of this requirement even by subsequent admission of correctness of the
deposition by the witness, in case of dispute. [196H; 197A]
(6)
Under the Code of Civil Procedure a deposition recorded in a Court, except that
under Order 18, Rule 16 C.P.C., does not require the witness' signature on the
deposition. The requirement of signature is not court's assurance since the
witness is not examined in court. Accordingly, it cannot be said reasonably
that the omission of witness' 189 signature on the deposition renders the
deposition incomplete. [196E]
(7)
Rules of procedure are not by themselves an end but the means to achieve the
ends of justice. Rules of procedure are tools forged to achieve justice and are
not hurdles to obstruct the pathway to justice. [197B]
(8)
Construction of a rule of procedure which promotes justice and prevents its
miscarriage by enabling the court to do justice in myriad situations, all of
which cannot be envisaged, acting within .the limits of the permissible
construction, must be preferred to that which is rigid and negatives the cause
of justice. Where the outcome and fairness of the procedure adopted is not
'doubted and the essentials of the prescribed procedure have been followed,
there is no reason to discard the result simply because certain details which
have not prejudicially affected the result have been inadvertently omitted in a
particular case. [197B-C]
(9)
Ordinarily, the word 'shall' used at several places in Rule 4 must be given the
same meaning at all places.
However,
it is also settled that this is not an invariable rule and even though the word
'shall' is ordinarily mandatory but in the context or if the intention is
otherwise it may be construed to be merely directory. In short, the
construction ultimately depends on the provision itself keeping in view the
intendment of the enactment and the context in which the word 'shall' has been
used. [197H; 198A] Ganesh Prasad Sah Desari & Anr. v. Lakshmi Narayan
Gupta, [1985] 3 SCR 825; Govindlal Chagganlal Patel v. The Agricultural Produce
Market Committee, Godhra & Ors., [1976] 1 SCR 451, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 39863987 of 1989.
From
the Judgment and Order dated 23.3.1989 and 6.4.1989 of the Calcutta High Court
in Appeal No. 69 1 of 1988 and Admiralty Suit No. 6 of 1985 respectively.
Dr. Shanker
Ghosh, C.R. Addy, A.K. Sil, G. Joshi and Mrs. Urmila Narang for the Appellants.
M.K. Ramamurthi,
H.L. Tiku and Ashok Grover for tne Respondents.
190
The Judgment of the Court was delivered by VERMA, J. Is omission of the
witness' signature on his deposition recorded on commission, as required by
Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to
the Original Side, a defect fatal to the reception of the deposition in
evidence even when the correctness and authenticity of the deposition is
undisputed? Subject to the preliminary objection raised by Shri M.K. Ramamurthi,
learned counsel for the respondents, this is the main point for decision on
merits to be answered with reference to Rule 4 of Chapter XXII of the Calcutta
High Court Rules, 1914, applicable to the Original Side. The Calcutta High
Court has held this defect to be fatal and accordingly excluded the entire oral
evidence of the defendants recorded on commission resulting in the suit being
decreed in plaintiffs' favour on the unrebutted testimony of the plaintiffs.
Correctness of this view is assailed before us.
A
foreign vessel M.V. "Vali Pero" sailing under the Greek flag arrived
at the port of Calcutta on April 20, 1985; 10 nOn-Greek seamen on board that
ship filed a suit on August 2, 1985 in the admiralty jurisdiction of the
Calcutta High Court for recovery of approximately Rs. 15.40 lacs claimed as
their dues from the owners of the vessel; depositions of the defendants'
witnesses were recorded on commission and submitted to the learned single Judge
trying the suit who closed the case on 24.12.1987 for pronouncing judgment on
12.1.1988; before delivery of judgment on 10.8.1988 objection was raised on
behalf of the plaintiffs to reception in evidence of the depositions of the
defendants' witnesses examined on commission on the ground of absence of
witness' signature on the deposition; the objection was upheld by the learned
single Judge as also by a Division Bench in a Letters Patent Appeal; and the
suit has been decreed on 6.4.1989 on the unrebutted evidence of plaintiffs. In
the meantime, one of the plaintiffs is stated to have died while another is
alleged to be critically ill;
and on
the 'other hand, the vessel continues to be detained at the Calcutta Port even
after the owners have furnished the security demanded from them by interim
orders in the suit.
Even
at the risk of this description being labelled as oversimplification, this is
the scenario of the forensic battle in which the point raised has to be
decided. We may add that this is not the first journey to this Court of this
litigation by special leave during the trial of the suit.
191
Both the Special Leave Petitions are by the defendants, owners of the vessel.
One Special Leave Petition is against the judgment dated 23.3.1989 of the
Division Bench of the High Court affirming the order dated 10.8.1988 of the
learned single Judge excluding the defendants' oral evidence recorded on
commission for the above defect. The other Special Leave Petition is directed
against the judgment and decree dated 6.4.1989 of the learned single Judge
decreeing the plaintiffs' suit after exclusion of defendants' entire oral
evidence. Petitioners urged that filing of an appeal under the Letters Patent
against the judgment and decree in the suit was futile in view of the earlier
Division Bench judgment dated 23.3. 1989 on the main point in controversy even
in respect of the final decision.
The
preliminary objection of Shri Ramamurthi is that the first Special Leave
Petition, apart from arising out of an interlocutory order which does not
justify its entertainment, is also now infructuous after decision of the suit
itself in which that interlocutory order was made. The other Special Leave
Petition should not be entertained, according to Shri Ramamurthi, because it
circumvents the statutory internal appeal under the Letters Patent to the
Division Bench of the High Court. Shri Ramamurthi contended that this Court
should not, therefore, entertain either of these petitions for grant of special
leave under Article 136 of the Constitution, even though the powers are fairly
wide on account of which he does not contend that they are not maintainable.
We
shall first dispose of the preliminary objection of Shri Ramamurthi. He has
very fairly stated that he does not challenge the maintainability of these
petitions but only assails their entertainability under Article 136. In our
considered opinion pragmatism and assurance of shortening this unduly
protracted litigation are by themselves sufficient and eloquent reasons to
grant leave in these matters and to decide the above question on merits
forthwith instead of deferring that decision to a later date. Technically, Shri
Ramamurthi is right that ordinarily special leave need not be granted where
remedy of a statutory appeal being available has not been exhausted. However, m
the particular facts of this case when the decision in Letters Patent Appeal
appears to be a forgone conclusion, the appropriate course which commends to us
is to grant leave and decide the matter straightaway instead of deferring that
decision to a later stage after exhaustion of the futile remedy of Letters
Patent Appeal in the High Court.
We may
at this stage also mention the argument based on res 192 judicata addressed to
us. The point raised is: whether the decision by a Division Bench of the High
Court affirming the learned single Judge's order excluding the depositions from
evidence will bar a fresh adjudication of that point in the Letters Patent
Appeal filed against the final decision in the suit? In our opinion, this academic
exercise iS unnecessary in the present case since it cannot be doubted that
irrespective of the question of res judicata, earlier decision on the same
point by a Division Bench of the High Court will atleast be a binding precedent
when the matter is reagitated before the Division Bench hearing the appeal
against the final decision in the suit. In such a situation directing the
resort to the remedy of an appeal under the Letters Patent against the final
decision in the suit will needlessly delay decision of the point by this Court.
We are, therefore, of the opinion that, in the present case, it is neither
necessary to decide the question of res judicata argued before us nor would it
be appropriate to refuse leave and direct the petitioner to first exhaust the
remedy of an appeal under the Letters Patent in the High Court. We,
accordingly, proceed to decide the point involved on merits.
Leave
granted.
Having
heard learned counsel for the parties, we have formed the opinion that the High
Court was in error in excluding from evidence the depositions of the
appellants' witnesses recorded on commission and in proceeding to decide the
suit on that basis. The matter will, therefore, have to go back to the High
Court for a fresh decision of the suit treating these depositions as evidence
in the suit. In view of this conclusion reached by us, we shall mention only
the facts necessary for deciding the main controversy at this stage relating to
the construction of Rule 4 of Chapter XXII of the Calcutta High Court Rules,
1914, applicable to the Original Side.
In the
above Admiralty Suit No. 6 of 1985, the appellants (defendants in the suit)
filed an application on February
6, 1987 for examining
their two witnesses, Mr. A. Kappos and Mr. Parakis, on commission at the Greek
Embassy in New Delhi. The respondents' (plaintiffs in
the suit) evidence was concluded on February 23, 1987. On February 25, 1987, the learned single Judge trying the suit directed issue of
a commission for examination of the appellants' two witnesses on commission at
the Greek Embassy at New
Delhi and Mr. B.C. Kundu,
Advocate of the Alipore Bar was appointed the Commissioner for this purpose.
The Commissioner commenced recording the depositions of these witnesses at New
Delhi on May 1, 1987 and concluded it 193 on May 4, 1987. The deposition of
each witness was signed by the Commissioner after being read over to the
witness who admitted it to be correct. However, the signature of the witness
was not taken on the deposition. The Commissioner settled the minutes in a
meeting with counsel for parties in which the depositions recorded on
commission were admitted to be correct and counsel for the parties signed the
minutes in token of their acceptance. The minutes are as under:
"A
meeting was held this afternoon dated 15th May, 1987 at 4.15 P.M. at lB, Old
Post Office St., Calcutta-I to furnish the report of the Commission.
Members
present:
Mr. Taimur
Hossain -Advocate on behalf of the plaintiffs Mr. A.K. Auddy -Advocate (Sandersons
& Morgans) on behalf of the defendant Mr. B.C. Kundu A list of Exhibits as
also copies of depositions recorded at Greek Embassy, New Delhi were given to the parties. No
amendment or correction was suggested in the deposition by either of the
parties.
The
Report of the Commissioner would be submitted on Monday, the 15th May, 1987.
sig.
Illegible Commissioner Appointed by the Hon'ble High Court vide order dated
25.2.87 sd/Md. Taimur Hossain Advocate for the plaintiffs 194 sd/A.K. Auddy
Advocate 15.5.87 Received a copy Sig. Illegible Recd. a copy of the minutes.
sd/A.K.
Auddy." The Commissioner then submitted his report along with the
depositions recorded by him in a sealed cover to the Registrar (Original Side)
of the High Court. The parties also filed written submissions in the court
treating these depositions as evidence in the suit and on December, 1987 the
learned trial Judge recorded the proceedings as under:
"The
Court: Deposition including the documents taken on commission are formally
tendered in Court by the learned Advocate appearing for the defendant (in a
sealed cover). Both the parties have submitted their written argument in Court
earlier. Let this suit appear in the List on 12.1.1988 at 3 P.M. marked "For Judgment"." It is clear that
till closing of the suit for judgment, no objection was raised on behalf of the
respondents to inclusion of the depositions of appellants' witnesses examined
on commission in evidence of the suit. Somehow the judgment was not delivered
on 12.1.1988 and even thereafter for quite some time and the learned single
Judge then made an order releasing the suit. This led to a special leave
petition in this Court by the respondents and an order was made by this Court
requesting the learned single Judge trying the suit to dispose of the suit on merits
instead of releasing it.
It was
then on 10.8.1988 that respondents' (plaintiffs in the suit) counsel raised the
objection to inclusion of the depositions of appellants' witnesses examined on
commission in evidence of the suit on the ground that the depositions were not
signed by the witnesses as required by Rule 4 ibid. That objection was upheld
by the learned single Judge as well as a Division Bench of the High Court in
L.P.A. against that order. The High Court has held this defect to be fatal on
its view that even the requirement of witness' signature in Rule 4 ibid is
mandatory. S.L.P. No. 4074 of 1989 is against this order. On this view, the
learned single Judge has proceeded to decree the suit on the basis of
respondents' unrebutted evidence and S.L.P. No. 93 18 of 1989 195 is against
the judgment and decree in the suit.
The
controversy on merits depends ultimately on the correct construction of Rule 4
of Chapter XXII of the Calcutta High Court Rules, 1914 applicable to the
Original Side with reads as under:
"4.
Deposition to be read over, signed etc.
After
the deposition of any witness shall have been taken down, and before it is
signed by him, it shall be distinctly read over, and, where necessary,
translated to the witness in order that mistakes or omissions may be rectified.
The deposition shall be signed by the witness and left with the Commissioner
who shall subscribe his name and date of the examination." Dr. Shanker Ghosh,
learned counsel for the appellants contended that the omission of witness'
signature on the deposition recorded by the Commissioner does not invalidate
the deposition atleast in a case like the present where the correctness and
authenticity of the deposition is undisputed. He argued that in this sense
requirement of the witness' signature on the deposition is not a mandatory
requirement, the absence of which may invalidate the deposition. He also
contended that the defect, if any, was curable by obtaining the witness'
signature even now for which the appellants are prepared. He added that in
order to put the matter further beyond controversy, the affidavits of the
witnesses examined on commission were filed in the High Court during pendency
of the appeal before the Division Bench admitting correctness of their
depositions. He also placed strong reliance on admission of the respondents'
counsel to the correctness of the depositions, in the minutes recorded by the
Commissioner on 15.5.1987 as well as the omission to raise any such objection
till 10.8.1988 much after the suit was closed for judgment on 24.12.1987. He
finally urged that the mistake, if any, was of the Commissioner in not taking
the signatures of the witnesses and no party should be prejudiced by an act or
omission of the Commissioner who was an officer of the Court. In reply, Shri
M.K. Ramamurthi, relied on the reasons given in the Division Bench's judgment
dated March 23, 1989 for construing this requirement in
Rule 4 ibid as mandatory and on that basis excluding from evidence in the suit
of these depositions. He also contended that copies of affidavits of the
witnesses filed in the High Court were not supplied to the respondents. He
added that the argument of curing the defect by obtaining signatures of the
witnesses on the depositions was not advanced in the High Court due to which it
196 should not be permitted now. Shri Ramamurthi also made the grievance that
belated pleas of the appellants have caused needless harassment to the
respondents. Since we have come to the conclusion that these appeals should be
allowed on the construction of Rule 4 ibid, we need not decide the other points
urged.
It is
needless to burden our decision with the several well-known authorities cited
at the Bar indicating the test to be applied to decide whether a provision is
mandatory or directory. The real difficulty arises only in the application of
the well-settled principles. The essential requirement of Rule 4 is that the
deposition of a witness examined on commission shall be taken down in writing
read over, and, where necessary, translated to the witness in order that
mistakes or omissions, if any, may be rectified or supplied.
The
mandate in Rule 4 to this extent must be complied strictly in order to ensure a
correct record of the deposition. The further requirement of signature of
Commissioner with the date of examination and deposition being left with the
Commissioner to enable its production in court is to ensure its authenticity.
The only remaining requirement in Rule 4 of the witness' signature on the
deposition has relevance to the admission of the witness of its correctness.
The signature of the witness is not a part of the deposition and apart from
acknowledging the correctness of his deposition on the deposition itself, it is
not essential for any other purpose in this context. It is well-known that
under the Code of Civil Procedure a deposition recorded in a Court, except that
under Order 18, Rule 16 C.P.C., does not require the witness' signature on the
deposition. It appears that witness' signature on the deposition recorded on
commission is only required for court's assurance since the witness is not
examined in court. Accordingly, it cannot be said reasonably that the omission
of witness' signature on the deposition renders the deposition incomplete. If
this be the true import of the witness' signature on the deposition recorded on
commission, the deposition cannot be treated as incomplete, much less, invalid
merely due to omission of witness' signature when correctness or authenticity
of the deposition is undisputed.
It
appears to us that while the essential requirements of Rule 4 indicated above
are no doubt mandatory requiring strict compliance, the requirement of witness'
signature therein is directory of which substantial compliance is sufficient.
There is substantial compliance of this directory requirement where the
correctness and authenticity of the deposition is undisputed. Compliance can be
had of this requirement even by subsequent admission of correctness of the
deposition by 197 the witness, in case of dispute. This construction of Rule 4
made by us also promotes the object of its enactment instead of negativing it.
Rules
of procedure are not by themselves an end but the means to achieve the ends of
justice. Rules of procedure are tools forged to achieve justice and are not
hurdles to obstruct the pathway to justice. Construction of a rule of procedure
which promotes justice and prevents its miscarriage by enabling the court to do
justice in myriad situations, all of which cannot be envisaged, acting within the
limits of the permissible construction, must be preferred to that which is
rigid and negatives the cause of justice. The reason is obvious. Procedure is
meant to subserve and not rule the cause of justice. Where the outcome and
fairness of the procedure adopted is not doubted and the essentials of the
prescribed procedure have been followed, there is no reason to discard the
result simply because certain details which have not prejudicially affected the
result have been inadvertently omitted in a particular case. In our view, this
appears to be the pragmatic approach which needs to be adopted while construing
a purely procedural provision.
Otherwise,
rules of procedure will become the mistress instead of remaining the handmaid
of justice, contrary to the role attributed to it in our legal system.
In
this case, none disputes the correctness and authenticity of the depositions
recorded on commission but there is omission of witness' signature thereon. The
question is:
does
reception of these depositions in evidence violate rule 3 ibid in a manner
which is impermissible or this omission can be overlooked as insignificant
since correctness and authenticity of the depositions is undisputed? We have no
doubt that cause of justice would be served instead of being thwarted and the
avowed object of Rule 4 ibid achieved by treating it to be an insignificant
omission in the present case.
The
consequence of failure to comply with any requirement of Rule 4 ibid is not
provided by the statute itself.
Accordingly,
the consequence has to be determined with reference to the nature of the
provision, the purpose of its enactment and the effect of the noncompliance.
Rule 4 uses the word 'shall' even while requiring the signature of the witness
as it uses the word 'shall' in respect of the other requirements of the Rule.
Ordinarily, the word 'shall' used at several places in Rule 4 must be given the
same meaning at all places. However, it is also settled that this is not an
invariable rule and even though the word 'shall' is ordinarily mandatory but in
the context or if the intention is otherwise it may be construed to be merely
directory.
198 In
short, the construction ultimately depends on the provision itself keeping in
view the intendment of the enactment and the context in which the word 'shall'
has been used.
It
would suffice to refer only to the decision in Ganesh Prasad Sah Desari & Anr.
v. Lakshmi Narayan Gupta, [1985] 3 S.C.R. 825. The word 'shall' was used
therein in connection with the Court's power to strike off the defence against ejectment
in a suit for eviction of tenant in case of default in payment of rent. This
Court construed the word 'shall' in that context as directory and not mandatory
since such a construction would advance the purpose of enactment and prevent
miscarriage of justice. In taking this view, this Court was impressed by the
fact that the default attracting the drastic consequence of striking out defence
may be only formal or technical and unless the provision was treated as
directory, it would render the court powerless even where striking out the defence
may result in miscarriage of justice. We may refer to a passage from Crawford
on 'Statutory Construction' which was quoted with approval in Govindlal Chagganlal
Patel v. The Agricultural Produce Market Committee, Godhra and Others, [1976] 1
S.C.R. 451 and relied on in this decision. The quotation is as under:
"The
question as to whether a statute is mandatory or directory depends upon the
intent of the legislature and not upon the language in which the intent is
clothed. The meaning and intention of the legislature must govern and these are
to be ascertained, not only from the phraseology of the provision, but also
while considering its nature, its design and the consequences which would follow
from construing it the one way or the other." It cannot, therefore be
doubted that the word 'shall' used in the expression 'deposition shall be
signed by witness' in Rule 4 ibid has to be given the meaning keeping in view
the intention of the legislature, the purpose of the enactment and the
consequence which would follow from construing it as mandatory or directory.
If the
word 'shall' used in this expression is construed as mandatory, non-compliance
of which nullifies the deposition, drastic consequence of miscarriage of
justice would ensue even where omission of the witness' signature is by
inadvertence and correctness of the deposition as well as its authenticity is
undisputed. On the other hand, if the word 'shall' used in this expression is
treated as directory, the court will have power to prevent miscarriage of
justice where the omission 199 does not cause any prejudice and the defect is
only technical. The object of the provision being merely to obtain acceptance
of the witness to the correctness of the deposition, that object would be
advanced by taking this view and thereby empowering the court to avoid the
drastic consequence of nullifying the deposition where the correctness and
authenticity is undisputed. In a case where the correctness has been disputed,
it would be permissible for the court to examine the effect of omission of the
witness' signature and to reject the deposition only if it does not accept the
correctness and authenticity thereof on the available material.
We do
not find any cogent reason to take the view that the word 'shall' occurring in
the expression 'deposition shall be signed by the witness' in Rule 4 ibid is
mandatory which requires strict compliance and mere omission of which renders
the deposition invalid and incapable of being read as evidence. Various facets
discussed above lead unerringly to this conclusion.
In
view of the above discussion, we are of the opinion that the requirement of
witness' signature on the deposition in Rule 4 ibid is directory even though
the requirement of the deposition being recorded, read over to him and
corrected wherever necessary is mandatory. Mere omission of the witness'
signature on the deposition does not render the deposition invalid when the
correctness and authenticity thereof is undisputed. In the present case,
correctness and authenticity of the deposition of the appellants' witnesses
being undisputed and the technical objection of omission of the witness'
signature on the deposition being raised as an after-thought much after the
learned single Judge had closed the suit for delivery of judgment, the
objection is untenable. With respect, the High Court was in error in upholding
this objection and excluding the deposition of the appellants' witnesses
examined on commission from the evidence in the suit. The result of exclusion
of the appellants' oral evidence on this untenable technical ground is that the
suit has been decreed treating respondents' evidence to be unrebutted.
Exclusion of appellants' entire oral evidence has undoubtedly resulted in
miscarriage of justice. The judgment and decree passed by the learned single
Judge is vitiated for this reason alone.
We end
on a melancholy note for the past with hope for a better future. At a time when
the minds of all of us are rightly exercised by the proverbial laws delays and
innovations are being made and suggested to prevent the apprehended collapse of
the existing system, the 200 course of this litigation leaves us sad. No degree
of thought can help unless translated into action. A more pragmatic
appreciation and interpretation of the rules of procedure with due despatch
would certainly have considerably shortened the litigation so far. With both
sides appearing equally keen for a quick resolution of the dispute and this
being obviously welcome to the Court we see no reason why the ultimate decision
of the suit cannot now be reached early. We leave the matter with the fervent
hope that the dispute will now be resolved expeditiously without any avoidable
delay. We contribute the first step in that direction by hastening to pronounce
our judgment on conclusion of the elaborate arguments on September 8, 1989,
illuminating the penumbral zone.
Consequently,
these appeals are allowed. The order dated 10.8.1988 passed by the learned
single Judge, the judgment dated 23.3.1989 passed by the Division Bench of the
High Court affirming that order; and the judgment and decree dated 6.4.1989
passed by the learned single Judge are all set aside. The suit shah be decided
afresh by the learned single Judge treating the depositions of appellants'
witnesses recorded on commission as evidence in the suit, after hearing the
arguments of parties on merits. The respondents alone cannot be blamed for this
situation and, therefore, we direct the parties to bear their own costs.
R.S.S.
Appeals allowed.
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