Bhaskar Bhattacharya, J.:— The following question has been referred to this Bench for decision by the Hon'ble Chief Justice at the instance of a learned Single Judge:
“Is it not open to a judge, in exceptional circumstances upon putting the parties on notice and after recording reasons, to correct an inadvertent mistake which he realizes he had committed while dictating an order in open Court by recalling the order so dictated before it is signed and thereafter to hear the parties afresh?”
2. The present reference arises under the following circumstances:
A learned Single Judge of this Court (Dipankar Datta, J.) disposed of a writ application under Article 226 of the Constitution of India by dictating an order in open Court on November 11, 2010. By the said order, the District Inspector of School (S.E), Jalpaiguri, was directed to consider the issue of approval of a panel prepared by the authority of Jalpaiguri High School for recruitment to a vacant post of clerk therein. The writ petitioner claimed that he secured the first position in the panel. If the approval to the panel were accorded, he would be offered appointment to such post. He was, therefore, eager to have the panel approved.
3. After the order was transcribed, the file was placed before His Lordship on the following day for signature. While reading the transcript of the order that was dictated on the previous day, His Lordship also perused the writ application for verifying whether the recording of facts in the order was correct or not. It was then that His Lordship felt that His Lordship should not have passed the order that was pronounced on November 11, 2010. His Lordship found that there was a mistake in proceeding on the basis of the fact that the interview was conducted by the school authority on February 18, 2009 whereas it was really conducted on February 18, 2010. His Lordship, in the order of reference, however, did not discuss in detail why the date of interview was so material for a decision on the writ petition. However, His Lordship was convinced that it was a fit case where the unsigned order ought to be recalled, and after hearing the parties do novo, a fresh order should be passed either maintaining the earlier view or taking a different one.
4. But a decision of the Division Bench of this Court in the case of Suvra Dalui v. Netaji Subhas Open University & Ors., reported in 2010 (1) CHN 302, recorded in the order of reference, stood in His Lordship's way in taking the said recourse.
5. In Suvra Dalui (Supra), the Division Bench was considering a writ-appeal against an earlier order of His Lordship (Dipankar Datta, J.) in a different matter dismissing a writ application. His Lordship, in that case, had initially passed an order dictated in Court whereby the writ application was allowed but thereafter, being doubtful of the authenticity of the claim of the appellant, felt that the order ought not to have been passed and accordingly, changed His Lordship's mind and directed that the dictated order should not be transcribed. The writ application was enlisted as ‘to be mentioned’ two days thereafter, and upon hearing the parties, His Lordship expressed his mind why the untranscribed order should be recalled and passed an order to that effect. A further date was fixed for hearing the parties. On that date, the parties were heard and on this occasion, the writ application was dismissed. Challenging the order of dismissal the writ application, the appeal was preferred before the Division Bench which allowed the appeal by setting aside the order under the appeal.
6. According to the Division Bench, in view of Order 20 Rule 3 of the Code of Civil Procedure, a Court is left with no other alternative but to sign the order pronounced in open Court and such order could only be recalled according to well established principles of law.
7. The Division Bench held that by virtue of the Rules framed by this Court, the procedure provided in the Code of Civil Procedure with regard to the suits applies to this Court in a writ jurisdiction and thus, in view of Rule 3 of Order 20 of the Code, the said provision is equally applicable to the writ jurisdiction.
8. Dipankar Datta, J., however, took note of the subsequent decision of the Supreme Court in the case of Vinod Kumar Singh v. Benaras Hindu University, reported in AIR 1988 SC 371 taking a contrary view which was not considered by the Division Bench. But in spite of that, His Lordship decided to refer the matter because in the case of Suvra Dolui (supra), it was Dipankar Datta, J. who was the learned Single Judge, whose judgment was set aside in appeal and according to His Lordship, judicial propriety demanded that the legality of the decision in the case of Suvra Dolui (supra), in the aforesaid circumstances, should be decided by a Larger Bench.
9. Thus, the matter has come up before us for decision as the Hon'ble Chief Justice assigned the matter before this Bench.
10. After hearing the learned Counsel for the parties and after going through the materials on record, we find that the Division Bench in the case of Suvra Dolui (supra), although took note of the decision of the Supreme Court in the case of Surendra Singha v. State of Uttar Pradesh, reported in AIR 1954 SC 194 taking a view that after pronouncing a judgment but before signing the same a Court has right to recall the order, the Division Bench was of the view that the said pronouncement of the Supreme Court lost its force after the amendment of Code of Civil Procedure by the Amending Act No. 104 of 1976 with the insertion of Rule 3 with the provision of Order 20. The Division Bench, however, clarified that the provision of Order 20 of the Code of Civil Procedure had no application by virtue Order 49 Rule 3(5) of the Code in exercise of ordinary or extraordinary original civil jurisdiction by this Court and consequently, set aside the order of the learned Single Judge on the ground that the learned Single Judge had no power to alter the order after pronouncing the same in open Court although the same was not signed.
11. In our opinion, the question referred to us has been already answered by the Supreme Court in the case Vinod Kumar Singh v. Banaras Hindu University (supra), which has been delivered even after the amendment of the Code of Civil Procedure by the Amending Act of 1976 and in the said decision, not only the amended provision of Rule 3 of Order 20 has been taken note of but the earlier decision of the Supreme Court in the case of Surendra Singh (supra) was also relied upon. The following observations of the Supreme Court in the case of Vinod Kumar Singh (supra), would give the appropriate answer to the reference and would show that the view taken by the Division Bench in the case of Suvra Dolui (supra) was not correct:
“6. The above observations were made, as already mentioned, in a case where the judgment had been signed but not pronounced in the open Court. In the present case, we are concerned with a judgment that had been pronounced but not signed. The provision in Order 20 Rule 3 of the Code of Civil Procedure indicates the position in such cases. It permits alterations or additions to a judgment so long as it is not signed. This is also apparently what has been referred to in the last paragraph of the extract from the judgment of Bose, J. quoted above, where it has been pointed out that a judgment which has been delivered ‘can be freely altered or amended or even changed completely without further formality, except notice to the parties and re-hearing on the point of change, should that be necessary, provided it has not been signed’. It is only after the judgment is both pronounced and signed that alterations or additions are not permissible, except under the provisions of section 152 or section 114 sof the Code of Civil Procedure or, in very exceptional cases, under section 151 of the Code of Civil Procedure.
“7. But, while the Court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. When a judgment is pronounced in open Court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow.
“8. We have extensively extracted from what Bose, J. spoke in this judgemnt to impress upon everyone that pronouncement of a judgment in Court whether immediately after the hearing or after reserving the same to be delivered later should ordinarily be considered as the final act of the Court with reference to the case. Bose, J. emphasised the feature that as soon as the judgment is delivered that becomes the operative pronouncement of the Court. That would mean that the judgment to be operative does not await signing thereof by the Court. There may be exceptions to the rule, for instance, soon after the judgment is dictated in open Court, a feature which had not been placed for consideration of the Court is brought to its notice by Counsel of any of the parties or the Court discovers some new facts from the record. In such a case the Court may give direction that the judgment which has just been delivered would not be effective and the case shall be further heard. There may also be cases - though their number would be few and far between - where when the Judgment is placed for signature the Court notices a feature which should have been taken into account. In such a situation the matter may be placed for further consideration upon notice to the parties. If the judgment delivered is intended not to be operative, good reasons should be given.
“9. Ordinarily judgment is not delivered till the hearing is complete by listening to submissions 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 circumstance 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. If what is pronounced in Court is not acted upon, certainly litigants would be 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………”
(Emphasis supplied by us).
12. We, therefore, answer the reference by relying upon the said decision of the Supreme Court in the affirmative but such course should be adopted only in the circumstances quoted above. This reference is, thus, disposed of.
13. In the facts and circumstances, there will be, however, no order as to costs.
Aniruddha Bose & Sambuddha Chakrabarti, JJ.:— We agree.
B.D