D.B. Bhosale, J.
1. The principal question, which arises for determination in this Appeal under Clause 15 of the Letters Patent, is whether the Judgment prepared by a member of the Division Bench and thereafter signed by the other member can be pronounced by him even after the other member of the Bench ceases to be a Judge of this Court. The question as to maintainability of the Letters Patent Appeal (for short, 'LPA') was also raised, in the course of arguments, contending that by no stretch of imagination the order, impugned in the appeal, can be treated as a Judgment within the meaning of clause 15 of the Letters Patent.
2. The factual matrix, giving rise to the aforesaid questions, briefly stated, is as follows. A Division Bench of the learned Chief Justice Mr Dalveer Bhandari (as His Lordship then was) and Mr S.J. Vazifdar, J. heard Public Interest Litigation No. 10 of 2005 and upon conclusion of the arguments, reserved the judgment. The judgment was thereafter prepared by S.J.Vazifdar, J. and he forwarded a draft thereof to the learned Chief Justice. The learned Chief Justice signed the judgment in New Delhi on 27.10.2005. On 28.10.2005, the learned Chief Justice (Mr Justice Dalveer Bhandari) was elevated as a Judge of the Supreme Court. By the time the signed copy of the draft judgment was forwarded to Vazifdar, J., His Lordship had ceased to be a Judge of this Court, though it was signed by him as a member of the Division Bench. It is against this backdrop, Vazifdar, J. heard the learned senior counsel appearing for the parties on the question whether he was entitled to pronounce the judgment. He answered it in negative vide his order dated 20.12.2005 and hence the appellant is before this Court in appeal under clause 15 of the Letters Patent.
3. At the outset, we would like to begin with the question as to maintainability of the LPA. Mr Anne, learned senior counsel for the respondents, submitted that the order of the learned Single Judge, which is impugned in the appeal, is not a judgment within the meaning of clause 15 of the Letters Patent. It does not amount to judgment since there is no formal adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy. According to Mr Anne, the order dated 20.12.2005 is only a declaration of opinion by the learned Single Judge regarding his inability to pronounce the judgment. In support of this proposition of law, a heavy reliance was placed upon the judgments of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and Anr. : [1982]1SCR187 and in Surendra Singh v. State of Uttar Pradesh : 1954CriLJ475 . He next submitted that the impugned order being by a Judge who was a member of the Division Bench, cannot be challenged in LPA as it would amount to an appeal against an order of a co-ordinate bench. He then submitted that pronouncement of the judgment after the then Chief Justice Dalveer Bhandari's elevation would be opposed to public policy since it would lead to speculation as to whether the Judge would or would not have changed his mind.
4. On the other hand, Mr Singhvi, learned senior counsel for the appellant, submitted that the right of a judgment is a valuable right of a party and, therefore, the order affecting or denying such right would amount to a judgment within the meaning of Clause 15 of the Letters Patent. He, too, in support of his contentions, placed reliance on the judgment of the Supreme Court in Shah Babulal Khimji's case (supra). The reliance was also placed on the judgment of the Privy Council in Gokal Chand Jagan Nath v. Nanda Ram Das Atma Ram . He further submitted that the impugned order possesses the characteristic and trappings of finality in that and it also adversely affects a valuable right of the appellant to a judgment and, in view thereof LPA is maintainable. He next submitted that by no stretch of imagination the order passed by Vazifdar, J. could be treated as an order of a co-ordinate bench of this Court. The Division Bench, which heard the PIL, stood dissolved the moment His Lordship (Mr Justice Dalveer Bhandari) was elevated to the Supreme court. He had ceased to be a Judge of this Court and, therefore, it cannot be stated that the order impugned was passed by the learned Single Judge as a member of the said Division Bench. Lastly, Mr Singhvi submitted that the then learned Chief Justice had approved the draft judgment by signing the same indicating thereby that he never intended to make any change whatsoever in the judgment and, therefore, pronouncement of such judgment cannot be said to be opposed to public policy.
5. The Supreme Court in Shah Babulal Khimji's case (supra) was considering the question as to when the decision impugned in the LPA could be treated to be a judgment within the meaning of clause 15 of the Letters Patent. Clause 15 makes no attempt to define what a judgment is. As Letters Patent is a special law which carves out its own sphere, the Supreme Court has observed that it would not be possible to project the definition of the word 'judgment' appearing in section 2(9) of the Code of 1908 which defines 'judgment' into the Letters Patent. It was further made clear as to what is 'judgment' which could be challenged in appeal under clause 15 of the Letters Patent. The relevant observations in paragraph 113 read thus:. Thus, under the Code of Civil Procedure a judgment consists of the reasons and grounds for a decree passed by a Court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word 'judgment' as used in Clause 15 of the Letters Patent because the Letters Patent has advisedly not used the term 'order' or 'decree' anywhere. The intention, therefore, of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense.
The Supreme Court then proceeded to mention three categories of the judgments, viz. a final judgment, a preliminary judgment, and an intermediary or interlocutory judgment. While explaining as to what is a preliminary and interlocutory judgment, it was observed that 'the order which adversely affects a valuable right of a party keeping the main proceeding alive must be construed to be a judgment so as to be appealable to a larger bench'. It was further observed that 'before such an order can be a judgment, the adverse effect on the party concerned must be direct and immediate rather than indirect or remote'. In paragraph 115, the Supreme Court proceeds to observe that 'every order cannot be regarded as a judgment but only those orders would be judgment which decide matters of moment or affect vital or valuable rights of the parties and such works serious injustice to the party concerned.
6. The law is thus clear that an order, which decides and/or adversely affects a valuable right of the parties and its adverse effect on the party concerned is direct or immediate and which works serious injustice to the party concerned would amount to a judgment. In short, the 'order' must be a formal adjudication, which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. Letters Patent Appeal against such order under clause 15 of the Letters Patent would be maintainable. The word 'judgment' in clause 15 of the Letters Patent, thus, should receive a wider and more liberal interpretation.
7. In the instant case, Mr Aney, learned senior counsel for the respondent, when submitted that the impugned order does not decide the rights of the parties or no valuable rights whatsoever of the respondent are affected, he was referring to the merits of PIL and the rights of the parties involved therein and not the rights of the parties to a judgment. The only question that fell for the consideration of the learned Single Judge was, however, whether he could or could not pronounce the judgment which was made ready by him and which was signed by the other member of the bench, who had ceased to be a Judge of this Court. In our opinion, the right of a party to a judgment is relevant and not the merits of the main proceedings when maintainability of the LPA against the order of the learned Single Judge is to be considered. And as a matter of fact the 'right to a judgment' only was under consideration before Vazifdar, J. and that has been finally decided by the impugned order holding that he was not entitled to pronounce the judgment prepared by him and signed by the other member of the bench who had ceased to be a Judge of this Court before its pronouncement. The proposition that a right of a party to a judgment is a valuable right was not in dispute. It is against the backdrop of these facts and circumstances, we have no hesitation in holding that the impugned order in the instant appeal would amount to a judgment within the meaning of clause 15 of the Letters Patent.
8. We would now like to consider the next submission of Mr Anne, that the impugned order of the Learned Single Judge cannot be challenged in LPA as it would amount to an appeal against the order of a co-ordinate bench. The draft judgment, which was prepared by Vazifdar, J. was a judgment of the Division Bench. It was signed by the learned Chief Justice on 27.10.2005. On 28.10.2005, His Lordship (Mr Justice Dalveer Bhandari) was elevated as a Judge of the Supreme Court and as a result of which His Lordship had ceased to be a Judge of this Court. The Division Bench, as a consequence thereof, stood dissolved and was not existing on or after 28.10.2005. It is against this backdrop, Vazifdar, J. considered the aforesaid question and passed the impugned order on 20.12.2005. He cannot be said to have had considered the question and passed the order as a member of the Division Bench. The other member of the bench had ceased to be a judge of this Court when the question was being considered by Vazifdar, J. It would not be, therefore, possible to accept the submission of Mr Anne that the order of Vazifdar, J. was an order of the Division Bench and, therefore, the LPA filed against that order would amount to an appeal against the order of a co-ordinate bench. We find no legal impediment in entertaining the instant appeal under Clause 15 of the Letters Patent against the order passed by Vazifdar, J. and deciding the question that falls for our consideration in the instant LPA. In so far as the last submission that the pronouncement of the judgment, after the then Chief Justice Dalveer Bhandari's elevation would be opposed to public policy is concerned, we will deal with it while considering the merits of the case.
9. The arguments advanced by both the learned senior counsel on merits were centered on the judgment of the Supreme Court in Surendra Singh's case. Mr Singhvi, learned senior counsel for the appellant, endeavoured to distinguish the ratio laid down in Surendra Singh's case on which Mr Anne, learned senior counsel, for the respondent, on the other hand, placed heavy reliance upon the observations made therein and in particular paragraphs 9 to 12 thereof. We, therefore, deem it necessary to state the brief facts of the case and the question involved and considered by the Supreme Court.
10. In Surendra Singh's case, three accused in the murder case had appealed to the High Court at Allahabad (Lucknow Bench) against the judgment and order of their conviction. The appeals were heard by the Division Bench (Kidwai and Bhargava, JJ.) on 11.12.1952. The 'judgment' was reserved. Before it could be delivered, Bhargava, J. was transferred to Allahabad. While there, he dictated a 'judgment' purporting to do so on behalf of himself and his brother Judge. He signed every page of the 'judgment' as well as at the end but did not date it. He then sent the said judgment to Kidwai, J. at Lucknow. On 22.12.1952 Bhargava J. died before the 'judgment' was delivered. After his death, on 5.1.1953 his brother judgment (Kidwai, J.) purported to deliver the 'judgment' of the court. He signed it and dated it. The date he placed on it was 5.1.1953. The appeal was dismissed and the sentence of death to one of the accused was confirmed. Against the backdrop of these facts, the question that fell for consideration of the Supreme Court was 'whether that judgment could have been validly delivered after the death of one of the two Judges who heard the appeal'.
11. It is true that the Supreme Court was considering the question in criminal case. However, in paragraph 9 of the judgment, after considering section 537 of Cr.P.C and sections 99 and 108 of the Code of Civil Procedure, Vivian Bose, J. speaking for the Bench, observed that the principle underlying them is the same. The Supreme Court then proceeded to decide what is a judgment? Undoubtedly, the Supreme Court considered this question in the light of the facts of that case and also relevant provisions of the Cr.P.C. But that by itself, in our opinion, would not limit the underlying principle laid down only to criminal cases under the Criminal Procedure Code or the Indian Penal Code.
12. From bare perusal of the judgment in Surendra Singh's case, it would be clear that the law laid down by the Supreme Court would equally apply to any other case or even to public interest litigation filed under Article 226 of the Constitution of India. In any case, it cannot be stated, as vehemently contended by Mr Singhvi, learned senior counsel, that the observations of the Supreme Court are limited on to matters under Cr.P.C or I.P.C. We are of the considered opinion that the legal position discussed and the law laid down by the Supreme Court in the judgment and in particulars paragraphs 10 to 12 would apply equally to civil cases. It would be advantageous to reproduce paragraphs 10 to 12 of the judgment in Surendra Singh's case, which read thus:
10. In our opinion, a judgment within the meaning of these sections 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 is judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there; that can neither be blurred nor left to inference and conjecture nor cannot be vague. All the rest, the manner in which it is to be recorded the way in which it is to be authenticated the signing and the sealing, all the rules designated to secure certainty about its content and matter can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for given number of days for inspection. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however, heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the 'judgment'.
12. Now up to 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, much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystalise 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. If he hands in a draft and signs it and indicates that he intends that to be the final, expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery.
But one cannot assume that he would not have changed his mind if he is no longer in a position to do so. A Judge's responsibility is heavy and when a man's life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture; also a question of public policy is involved. As we have indicated, it is frequently the practise to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment.'
13. Keeping in view the observations made by the Supreme Court in Surendra Singh's case, if we examine the facts of the instant case, it is clear that a draft of the judgment prepared by Vazifdar, J., though was signed by the then Chief Justice on 27.10.2005, His Lordship had ceased to be a Judge of this Court on 28.10.2005, i.e. before formal pronouncement or delivery of the judgment. In the light of the aforesaid observations made by the Supreme Court, mere signing of the draft of judgment would not be sufficient. The Judge who signs and causes it to be pronounced or delivered by a brother Judge must be in existence as a Judge of this Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. It is true that there is no need for him to be physically present in the Court but he must be in existence, as a Judge of this Court. That is necessary because the decision which is so pronounced must be a declaration of the mind of the Court as it is at the time of pronouncement. The manner of delivery is not the essence except to say that it must be done in a judicial way in open Court. A Judge who prepares a draft, forwards it to other member of the bench who signs it and indicates that he intends that to be final expository of his views, it can be assumed those are his views at the moment of delivery only if he continues to be a Judge of this Court and is in a position to change his mind and does not take steps to arrest delivery. In the instant case that was not possible since the other member of the bench had ceased to be a Judge of this Court. In view of the settled position of law, we are of the opinion, that the learned Judge has correctly held that he is not entitled to pronounce the 'judgment'.
14. The observations of the Supreme Court 'that it would be against a public policy to leave the door open for investigation whether a draft sent by a Judge was intended to embody his final unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment' is absolutely clear insofar as the submission that the pronouncement of the judgment would be against the public policy is concerned. Similarly, the submissions of Mr Singhvi distinguishing the judgment in Surendra Singh's case mainly on the ground that the Supreme Court was considering the criminal case cannot be sustained. There is absolutely nothing in the judgment that limits its scope to any particular category of the proceedings. The other judgment relied upon by Mr Singhvi, learned counsel for the appellant in Gokal Chand Jagan Nath's case in support of his submission, was also considered by the Supreme court in Surendra Singh's case. On facts itself the said judgment is distinguishable . In that case, the judgment was actually delivered in open Court and both the judges who constituted the bench were present and concurred in it. However, before the judgment could be signed, one of the Judge went on leave. However, it is pertinent to note that when the judgment was pronounced both the learned Judges continued to be Judges of the High Court. In this view of the matter, in our opinion, the judgment in Gokal chand Jagan Nath's case is of no avail to the appellant to contend that in the facts and circumstances of the instant case the learned Single Judge can pronounce the judgment.
15. Mr Singhvi, learned senior counsel, then submitted that though Order XX, Rule 2 of the Code of Civil Procedure (for short, 'CPC') may not apply to this matter, in the absence of a specific rule, High Court should act on the analogy reflected therein because there cannot be a better analogy than what is provided by the Code of Civil Procedure and which is followed by all High Courts, including Bombay High Court. In support of this contention, he placed reliance upon the Judgment of the Supreme Court in Ramanbhai v. Dabhi Ajitkumar 1965 (2) SCR 712.
16. Rule 2 of Order XX of CPC provides that a Judge shall pronounce a judgment written, but not pronounced, by his predecessor-in-office. It clearly mandates a successor Judge to pronounce the judgment prepared by his predecessor notwithstanding the fact that the predecessor has ceased to be a Judge of the Court. This rule, undoubtedly, would apply to the Appellate Side of this Court dealing with Appeals, Revisions and Reviews. However, the question is whether Rule 2 of Order XX would apply to the present case. In that connection, we may also have to notice the provisions of Rule 3 of Order XLIX. Rule 3 provides that the Orders and Rules of CPC, mentioned therein, which includes Order XX Rule 1 to 8, shall not apply to any Chartered High Court in the exercise of its ordinary or extra- ordinary original civil jurisdiction. A plain reading of these provisions would, thus, show that Rule 2 of Order XX does not apply to any Chartered High Court in the exercise of its ordinary or extra-ordinary original civil jurisdiction. This Court being a Chartered High Court and the PIL, which was being considered by the bench, was under Article 226 of the Constitution of India, the provisions of Rule 2 of Order XX shall not apply. In other words, the provisions of Rule 2 of Order XX, applies only to Appeal, Revision and Review proceedings on the Appellate Side and not to writ petition under Article 226 of the Constitution of India, under which this Court exercises its extra-ordinary original jurisdiction. In view of the express exclusion of application of Rule 2 of Order XX by Rule 3 of Order XLIX of CPC the analogy reflected in Rule 2 of Order XX, as tried to be contended by Mr Singhvi, cannot be applied to this Court in the exercise of its extra-ordinary jurisdiction. In our opinion, the judgment relied upon in Ramanbhai's case would not help the appellant. The law settled by the Supreme Court in Surendra Singh's case (supra) is explicit and squarely applies to the present case. The submission of Mr Singhvi, therefore, must be rejected.
17. That takes us to the last submission of Mr Singhvi, learned counsel for the appellant that in view of rule 1 of Chapter XI of the Bombay High Court Appellate Side Rules, the learned Single Judge could have pronounced the judgment. Mr Singhvi submitted that a plain reading of rule 1 does not make any distinction between a sitting Judge and a Judge who has ceased to be a Judge of this High Court and that the rule has to be construed liberally on its plain language. According to Mr Singhvi, if the members of a Division Bench or Special Bench consisting of two or more Judges which heard the matter are 'not available' for sitting together at one place, the judgment can be pronounced by any of the Judges, who heard the case after the transcript of the judgment has/have been initialled by all the Judges who had heard the case whether all continue to be Judges or not. The learned Single Judge, in his submission, has enlarged the scope of the rule by reading words into it which are not there. The learned Single Judge erred in interpreting the aforesaid rule to say that the Judge means he who continues to be a Judge of the Court but not available for sitting together at one place. For better appreciation of the submission of Mr Singhvi, it would be advantageous to reproduce rule 1 in Chapter XI of the Bombay High Court Appellate Sides Rules which reads thus:-
1. When judgment to be taken as ready:--
(i) Where judgment has been reserved in a case heard by a Division or Special Bench consisting of two or more Judges, and all off them are not available for sitting together at one place, such judgment may be pronounced by any of the Judges, who heard the case after the transcript or the transcripts of the Judgment has or have been initialled by all the Judges who had heard the case.
(ii) A Judgment delivered by this Court, when initialled by the Judge pronouncing it, either on the transcript of the Judgment or on the approved sheet attached to it shall be the final judgment of which copies could be supplied to the parties or their Advocates unless the Judge delivering it desires that he wants to have a fair copy of the Judgment for approval. In the latter event, the Judgment shall be considered to be final when the fair copy is approved and initialled by the Judge.
The expression 'all of them not available' in sub rule (1) of Rule 1, in our firm opinion, does not cover a judge who ceases to be a judge of this Court and this expression, therefore, must be read to mean a sitting Judge or Judges of this Court, who are not available for sitting together at one place for variety of reasons. A plain reading of the rule does not, in any case, cover the Judge or Judges who cease to be the Judge or Judges of this Court or who is dead. The rule is explicit, which means, where the judgment has been reserved in a case heard by a division bench or a special bench consisting of two or more Judges can be pronounced by any of the Judges who heard the case after a draft of the judgment has been initialled by all the Judges who had heard the case. The language of rule 1 is clear, unambiguous and admits only one meaning. It is not susceptible to any other meaning. Mr. Singhvi relied upon the judgment of the Supreme Court in Union of India and Anr. v. Deoki Nanda Aggarwal AIR 1992 SC 96 to contend that the scope of the aforesaid rule cannot be enlarged and it has to be given its plain meaning without reading anything into rule. As a matter of fact, Mr. Singhvi, endeavoured to read into the rule so as to include a Judge who has ceased to be a Judge of the High Court or is dead. We find ourselves in agreement with the interpretation made by the learned Single Judge of the said rule. In the circumstances, we find absolutely no error whatsoever in the impugned judgment. The Letters Patent Appeal is dismissed.