1. This is an application for review of the judgment of this court in A.S No. 477 of 1957 and it raises an important question of practice.
2. The facts relevant for the purpose of deciding this petition may be briefly stated: This appeal was heard by me and the late Mr. Justice Ramachandra Rao on the 9th February, 1961. We were unanimous in our conclusions and I pronounced the judgment of the Bench in open Court. The judgment was in the due course transcribed and was signed by me. It was then that a melancholy event occurred. Mr. Justice Ramachandra Rao was taken ill and he died before he could sign the judgment. By a note dated 7th April, 1961, I held, following a precedent of the Supreme Court, that in the circumstances my signature to the judgment was sufficient. In this application for review, the learned counsel has argued that inasmuch as the judgment was not signed by late Mr. Justice Ramachandra Rao, it was a wholly invalid judgment. According to him, unless the judgment is signed by both the Judges constituting the Bench, it would not be a valid judgment.
3. Initially, I felt a doubt as to whether this petition, for review could be heard by me alone or whether it should be posted before a Bench. This point is directly covered by the decisions of the Calcutta High Court in Aubhoy Churn Mohunt v. Shamont Lochnn Mohunt . I.L.R 16. Cal. 788. and Nakshud Mahi v. Secretary of State . 1911 9 I.C 532. Peeram Chenna Reddy, In Re3. Justice Somayya stated as follows.
“According to the invariable practice of the Madras High Court even in first appeals, the application for review is heard and decided only by the Judges who heard the appeal or when one of them is absent by the other Judge sitting alone”.
4. In accordance with the practice of the Madras High Court, which is the practice followed by this Court as well, I hold that this petition for review can be, disposed of by me. I may add, in fairness to the learned advocate for the petitioner, that he has not raised this objection. The next of the questions is whether the fact that late Mr. Justice Ramachandra Rao had not signed the judgment would render it invalid. In this point, guidance is afforded by a note appended to the judgment of their Lordships of the Supreme Court in Ramswami Nadar v. The State of Madras. The note reads as follows;—
“When hearing of this appeal was finished last week by a Bench consisting of three of us, B.P Sinha, P. Govinda Menon and J.L Kapur, JJ., we announced that we had come to the conclusion that the appellant should be acquitted. Wealso indicated that the judgment will be delivered the week following. The draft of the judgment was sent to late Mr. Justice Menon last week and he had approved of it. What we are now delivering are the reasons of the Judges who constituted the Bench; but it will be signed by two only of us on account of the unexpected death of Justice Menon.”
5. Following the above precedent, I alone signed the judgment by reason of the unexpected death of Mr. Justice Ramachandra Rao.
6. As pointed out by their Lordships of the Privy Council in Firm Cokal Chand v. Firm Nand Ran. “Rule 31 of Or. 41, does not say that if its requirements are not complied with, the judgment shall be a nullity.”
7. At page 295, Their Lordships observed:
“So startling a result would need clear and precise words. Indeed the rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The rule from its very nature is not intended to affect the rights of practice to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object. No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may the after giving judgment but before he has had a reasonable opportunity to sign it. The court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing judgment may call for more comment, but even so the convenience of the Court and the interest of litigants must prevail. The defect is merely an irregularity not affecting the merits of the case or the jurisdiction of the court and is no ground for setting aside the decree.”
8. The facts there were quite the same as here because the judgment was actually delivered in open court and both the Judges who constituted the Bench were present and concurred in it. But before it could be signed, one Judge went, on leave. Their Lordships of the Privy Council held that the fact that the judgment was not signed by one of the Judges constituted a mere irregularity which could be cured.
9. The learned counsel for the petitioner has, however, relied upon a decision of the Supreme Court in Surendra Singh v. State of Uttar Pradesh where the facts were these: Two judges of the High Court of Allahabad (Lucknow Bench) heard a Criminal Appeal in which judgment was reserved. Before it could be delivered, one of the judges was transferred to Allahabad. While there he dictated a “judgment” purporting to do so on behalf of himself and his brother Judge, that is to say, it purported to be a joint judgment. He used the word “We” and “I”. He signed every page of the “judgment” as well as at the end but did not date it. He then sent this to the other Judge at Luck-now. Unfortunately, the other Judge died before the “judgment” was delivered. After his death, his brother Judge purported to deliver the “judgment” of the Court. The question for decision before the Supreme Court was whether this “judgment” could be validly delivered after the death of one of the two judges who heard the appeal. Their Lordships held that the judgment is not a valid judgment. In reaching this conclusion, it was pointed out at p. 196.
“Now upto the moment the judgment is delivered Judges have the right to change their mind. There is a sort of ‘locus paenitentiae’ and indeed last minute alterations often do occur. Therefore, however such a draft judgment may have been signed before hand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full-fledged judgment and become operative. It follows that the Judge who ‘delivers’ the judgment or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part.”
10. The facts of that case do not afford an analogy to the instant case. That was a case where one of the members of the Bench died after the hearing of the appeal but before judgment had been delivered and, as pointed out by their Lordships of the Supreme Court, it is not a valid judgment.
11. In the present case the final decision of the court was formally pronounced and delivered in open court. Both the Judges who constituted the Bench were present and concurred in it. The fact that the judgment was not signed by one of them is a mere irregularity and can be cured. Having regard to this conclusion, it must be held that the judgment of this court is a valid judgment.
12. The application for review contains some other grounds which have a bearing on the merits of the case. On the merits, I hold that there are no grounds for granting the review asked for.
13. In the remit, this petition is dismissed with costs.
14. Petition Dismissed.