Oral Judgment:
1. Second Appeal No.340 of 1999 was filed by the Petroleum Company M/s. Hindusthan Petroleum Corporation Ltd., while Second Appeal No. 356 of 1999 was filed by M/s. Greenland Agencies [defendant no.2] and M/s. Onkarmal Rungta and Sons [defendant no.3]. The defendant no.2 is the sister concern of defendant no.3 and defendant no.2 is running a tea stall in the portion of the suit land owned by the respondent-landlady Sau. Nivedita Jain.
2. The original owner of the suit plot Rukhminibai Goenka executed a Registered Lease-Deed [Exh.82] on 15th July, 1964 in favour of M/s. Caltex [India] Ltd., for a period of ten years beginning from 1st October, 1962 to 30th September, 1972. On 16th October, 1965 [Exh.85], she gifted the suit property to Mrs. Nivedita Jain the respondent landlady herein. On 9th August, 1978, a quit notice [Exh.90] was issued by her to the appellant Hindusthan Petroleum Corporation Ltd., terminating the tenancy by the end of 30th September, 1978. But, according to the appellant, she continued to accept the rent beyond 30th September, 1972 till 31st May, 1979, i.e., even after the quit notice [Exh.90] was issued. By Exh. 92 dated 30th June, 1979, quit notice was served terminating the tenancy with effect from 31st July, 1979. On 6th August, 1979, the landlady filed Regular Civil Suit No. 302 of 1979 in the Court of Civil Judge [Senior Division], Akola. On 7th September, 1985, i.e., almost six years after the suit was filed, the landlady led her evidence and examined witnesses from time to time till 15th January, 1987, and on 15th January, 1987, she filed a Pursis [Exh.101] closing her evidence. On that date, by application [Exh.142], the appellant applied for adjournment, which was granted till 3rd February, 1987, on which date the Presiding Officer was on leave. On 25th February, 1987, the appellant applied for adjournment, which was granted as a last chance with cost of Rs.25/-. Thereafter, on 20th March, 1987, by application [Exh.144], the appellant applied for adjournment on the grounds that its counsel was suffering from high blood pressure and the witness Mr. Pillai, who was to come from Coimbatore, was unable to attend the Court and accordingly a telegram was received to ask for adjournment for near about a month, namely 19th of the next month. The application was rejected by the Trial Judge and thereafter on 1st December, 1987, the Judgment and Decree was passed.
3. On 28th April, 1988, the appellant Hindusthan Petroleum Corporation filed an appeal bearing Regular Civil Appeal No.132 of 1988 before the District Judge, Akola, who heard the same on 4th February, 1999 and pronounced the Judgment on 30th June, 1999, i.e., after four months and twenty-six days. The Second Appeal was filed in this Court, which was admitted by this Court on 19th December, 2000. The C.P. and Berar Rent Control Order, 1949, pending the lis, was amended on 27th June, 1989, by including an open plot and thereafter on 27th October, 1989, another amendment was made. As a result, the amendment application to that effect was moved before the District Judge in appeal.
Arguments :
4. The counsel for both the parties appeared before me and then stated that these Second Appeals were finally heard earlier, but the judgment could not be delivered. As a result, the appeals remained pending for fourteen years in this Court.
5. The counsel for the respondent-landlady vehemently argued that the suit was filed in the year 1979, and it is over a period of thirty-four years now that the landlady is unable to get any relief. The counsel for the appellant/s in both the cases forcefully argued that denial of opportunity by the Trial Court by rejecting the application [Exh.144] for adjournment to lead evidence of defendant-appellant-HPCL completely gagged the defendant from placing its case before the Trial Judge by oral as well as documentary evidence. It is not that the appellant-defendant-Corporation was habitual in asking for adjournments for leading evidence, as can be seen from the record and proceedings and, therefore, the counsel for the respondent-landlady ought not to have objected to the last adjournment application [Exh.144] and the Trial Court should not have rejected that application, and instead could have given a time-bound direction to the defendant for production of evidence rather than going ahead with delivering the judgment and decree. According to the counsel for the appellant, therefore, period of thirty-four years spent in the litigation is not because of the fault of the appellant, but because the respondent no.1 opposed the prayer for leading the evidence of the defendants and the Trial Judge rejected the appellants request for adjournment. According to the learned counsel for the appellant, the Lower Appellate Court heard the appeals and closed the same for judgment on 4th February, 1999 and delivered the judgment on 30th June, 1999, i.e., after four months and 26 days, when the Supreme Court in the case of Joint Commissioner of Income Tax, Surat Vs. Saheli Leasing and Industries Ltd. [(2010) 6 SCC 384] fixed the period of three months for delivering a judgment. That apart, according to the counsel for the appellant, the point about wrong rejection of application [Exh.144] though was made a fulcrum of the argument of the appellant was totally forgotten by the Lower Appellate Court while writing the Judgment and pronouncing the same after four months and 26 days. That was a major point which was required to be answered. But that did not happen because of time gap of four months and twenty-six days for declaring the judgment. To substantiate his argument, learned Senior Adv. Mr. M.G. Bhangde also relied on the reported judgment of the Suprme Court in the case of Urviben Chiragbhai Seth Vs. Vijay Bhai Shambhubhai Joranputra and others [(2011) 12 SCC 582].
6. Per contra, learned Adv. Mr. Khapre for the respondent-landlady relied on various judgments, which I quote hereunder:-
[a] Soni Dineshbhai Manilal and others Vs. Jagjivan Mulchand Chokshi With Jagjivan Mulchand Chokshi Vs. Soni Dineshbhai Manilal and others [AIR 2008 SC 887],
[b] Ram Bali Vs. State of U.P. [AIR 2004 SC 2329 (1)],
[c] Maya Devi (deceased by L.Rs.) V. Smt. Raj Kumari Batra (deceased by L.Rs.) and others [AIR 2011 SC 8(Supp) 417],
[d] Ashwinkumar K. Patel Vs. Upendra J. Patel and others [AIR 1999 SC 1125], and
[e] State of U.P. and others Vs. Lalji Tando (Dead) [AIR 2004 SC 32]. Mr. Khapre then argued that Section 105 of Civil Procedure Code provides for setting up a specific objection and challenge to order like order below Exh.144 in the Memo of Appeal, in the absence of which, order below Exh.144 became final and hence that ground cannot be raised. He then argued that assuming the point about denial of opportunity qua Exh.144 was raised, since the same is not to be found anywhere in the impugned Judgment of the District Judge, it must be treated as having been abandoned by the appellant.
7. Mr. Khapre then continued to argue that it was for the appellant to file an application for rectification of the error in the judgment to that effect, if any, after the pronouncement, since the matter was fresh in the Courts mind, and having failed to do so, now the appellant cannot be allowed to turn around. At any rate, since thirty-five years have passed in the litigation, the case does not warrant remand to the Lower Appellate Court. The counsel then argued that no fruitful purpose would be achieved if the matter is remanded. In support of the said contention going on merits, he submitted that even if it is taken to be true that the period of five years could be the extended period of lease, the same again would stand expired by 30th September, 1977. Then nothing remained for the appellant to adduce the evidence. Lastly, in the alternative, Mr. Khapre argued that if at all this Court comes to the conclusion that any opportunity was required to be given for leading evidence to the defendant, the lone issue may be referred to the Trial Judge for taking the evidence on the point of renewal of lease and the finding should be called back and these appeals should be kept pending.
8. Learned Senior Adv. Mr. Bhangde, in reply, argued that Ground No.5 was specifically raised in relation to application [Exh.144] that no opportunity was given to the appellant no.1 to examine the witnesses which is enough, if read with the prayer in which it is alternatively prayed for remand in that context. He then argued that the question of abandonment of a point would not arise, since the point was argued before the Lower Appellate Court, but the Court failed to deal with the same in the Judgment, and at any rate, Lower Appellate Court was under a duty to examine the entire record and find out whether there was denial of the opportunity of leading evidence to the defendant. Distinguishing the judgment about making an application to the same learned District Judge, Mr. Bhangde argued that the matter has to be fresh in the mind of the learned Judge and at any rate, the said issue would not arise now if the point was really not dealt with in the judgment impugned.
9. Upon hearing learned counsel for the rival parties, earlier this Court had indicated that this Court will have to first decide whether the proceedings of appeal in the Lower Appellate Court were required to be remanded or whether this Court should itself decide these Second Appeals on merits. The Second Appeals were accordingly posted further for hearing and the arguments were heard on all the questions simultaneously.
10. After hearing the counsel for the parties at length, I re-frame the Substantial Questions of Law, inclusive of the said Preliminary Points as under:-
| [1] Whether the Trial Court [Civil Court] committed an error in rejecting the application [Exh.144] for adjournment filed by the appellant-defendant for adducing its evidence, and whether any prejudice is caused to the defendant; and whether non-consideration of the said ground in the Judgment delivered after four months and twenty-six days by the Lower Appellate Court vitiates the Judgment of the Lower Appellate Court? | Yes |
| [2] Whether Section 105 of Civil Procedure Code speaks of the requirement to specifically challenge any interlocutory order in the prayer to the Memo of Appeal or merely setting forth such ground of objection in the Memo of Appeal is sufficient and whether the Lower Appellate Court is entitled to examine the validity of any such interlocutory order itself to do justice to the parties? | Sec. 105, CPC, contemplates only setting forth the ground of objection in the Memo of Appeal by the appellant and a specific prayer to challenge such order in the Prayer Clause may not be necessary. The Lower Appellate Court, however, is entitled to examine the validity of any such orders as contemplated by Section 105, CPC. |
| [3] Whether the principle of sanctity of recitals in court proceedings applicable to the Courts of Record can be stretched to the proceedings of the District Court/ Judge or Tribunal, and in the instant case, about the controversy whether arguments on Exh.144 were advanced before the District Judge or not, since there is no reference in the Judgment of the District Judge about it? | The principle of sanctity of recitals in the court proceedings is applicable only to the Courts of Record , i.e., High Court [under Article 215] and the Supreme Court [under Article 129]. The principle does not extend to the court proceedings in other Courts. |
| [4] Whether upon pronouncement of Judgment on 30th June, 1999, the Lower Appellate Court became functus officio and could it have entertained any application for rectification/speaking to minutes/clarification about arguments on application [Exh.144]? | Yes. The Court became functus officio. No Such application could have been entertained except as provided by [Section 152, or Review], Civil Procedure Code. |
| [5] What Order? | Regular 302/1979 is remanded to the learned Trial Judge [Civil Judge] for a fresh trial. |
Heard learned counsel for the rival parties. Perused the entire record and several judgments cited by the parties. It appears from the record that the plaintiff-landlady, after institution of the suit in 1979, commenced her evidence and examined four witnesses for the period from 7th September, 1985 till 15th January, 1987, and on the last date, namely 15th January, 1987, by the Pursis [Exh.101], she closed her case. On the same date, the counsel for the appellant-HPCL filed an application [Exh.142] praying for adjournment of a month and the counsel for the plaintiff gave reply to that application, stating that the defendant no.1 should have kept its evidence ready, as if the plaintiff had already informed that she would close her case on 15th January, 1987 and the defendant no.1 should bring the witnesses on that date. Court granted adjournment till 3rd February, 1987, on which date Presiding Officer of the Court was on leave. The case was then posted to 25th February, 1987, on which date the counsel for the appellant stated that he wanted to examine a witness on the next date, and prayed for a months time. The counsel for the plaintiff opposed the application, stating there was no sufficient cause. The Court granted the application by imposing cost of Rs. 25/-. On the next date, namely 20th March, 1987, an application for adjournment was filed on the ground that the counsel for the appellant was suffering from blood pressure and was unable to attend the court, while the witness Mr. Pillai, who was to come from Coimbatore, was unable to come and in support of the same, a copy of the telegram was placed on record about Mr. Pillai, in which it was stated that next date, namely 19th should be taken. The counsel for the plaintiff opposed the application and the learned Trial Judge referring to earlier adjournment applications [Exhs.142 and 143], stated that from January, 1987, sufficient time was given and even no summons was taken from the Court and hence rejected the application, thus, closing the case of defendant and then proceeded further.
12. Thus, above is the factual background from which it is amply clear that the appellant-defendant was effectively granted only one adjournment under Exh.143, i.e., on 25th February, 1987 with cost of Rs. 25/-, and the second adjournment by application [Exh.144] dated 20th March, 1987 for bringing the witnesses on behalf of the appellant was rejected. Exh.142 application could not be considered as effective adjournment because on 15th January, 1987 itself, i.e., after two-and-half-year, plaintiff closed her evidence without intimation that defendant should keep its witnesses ready on 15th January, 1987. The respondent-plaintiff took two years and four months for examining her witnesses from 7th September, 1985 till 15th January, 1987, but still had such a serious objection to the appellant for leading evidence, who was granted only one effective adjournment [Exh.143], that too with a cost of Rs. 25/-.
13. Now, upon examining application [Exh.144] dated 20th March, 1987, which is the crucial date, I find that the adjournment was sought on the ground that the Advocate for the appellant was down with blood pressure, while the witness Mr. Pillai was unable to attend the Court and, therefore, only second adjournment was sought. [See Raj Ahmad Vs. State of UP [(1999) 6 SCC 391, Counsels illness is a sufficient cause for adjournment]. The Court referred to the fact that no summons was taken by the appellant, which, in my opinion, was wholly irrelevant, since the appellant repeatedly stated that it wanted to bring its own witness. The Court also referred to the earlier adjournment applications [Exhs.142 and 143], as if Exh.142 dated 15th January, 1987 was the effective adjournment at the behest of the appellant. Exh.142 was made on the date on which the plaintiff closed her case after examining witnesses for over a period of two years and four months and, therefore, Exh.142 in substance was not an adjournment application because plaintiff closed her case on that very day, namely 15th January, 1987. It was only one effective adjournment [Exh.143], which was relevant. But then it was wholly unjust and punitive to reject the application [Exh.144], since good and sufficient grounds were disclosed, namely illness of the Advocate and inability of the witness to come to Akola from Coimbatore. In fact, Exh.144 was the only second effective adjournment sought for, which was refused. Thus, in the Trial Court itself, it is the plaintiff who acted most unreasonably by opposing the application [Exh.144], even though the ground about illness of Advocate was mentioned and was not disputed. The learned Trial Judge, instead of rejecting the application [Exh.144], could have taken resort to other powers available to the Court, but to shut the doors for the defendant for all times to come to lead evidence in defence, only because second adjournment was asked for, that too for undisputed and good and sufficient reasons was to deny the opportunity of defending or contesting the suit effectively apart from being punitive. I, therefore, hold that rejection of application [Exh.144] was arbitrary, illegal and punitive.
The next argument made by learned Adv. Mr. Khapre that no prejudice is shown to have been caused to the appellant-defendant due to denial of a chance to lead evidence will have to be rejected in the light of above tale-telling facts. When the defendant was not allowed to lead evidence at all for no fault, or without giving any reasonable opportunity, the prejudice caused to the defendant must be held to be writ large. There is no separate methodology for proving prejudice in the aforesaid factual matrix.
14. Answer to Question No. 2 :-
The next submission made by Mr. Khapre based on Section 105, Civil Procedure Code, again, in my opinion, is misconceived. Section 105 of Civil Procedure Code reads thus:-
105. Other orders.- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal there-from, he shall thereafter be precluded from disputing its correctness.
15. Perusal of Section 105 above shows that Section 105 provides for a prohibition in filing appeal from order made by a Court in exercise of its original or appellate jurisdiction. The object of this provision is to prevent any party from repeatedly challenging the interlocutory orders or other orders under the provisions of the Code in order to curb delay. The second part of Subsection (1) of Section 105, however, shows that when a decree is appealed from; any challenge to wrong or illegal orders/interlocutory orders made in exercise of original or appellate jurisdiction during the proceedings affecting the ultimate decision of the case may be set forth as a ground of objection in the Memorandum of Appeal. This clearly shows that it was not necessary to challenge the order refusing adjournment and could well be set out as a ground of objection in the Memorandum of Appeal. The word used is may , meaning thereby that even if the ground is not set out, the appellate court is not powerless to find out if there is an error, irregularity or defect in such order in the first place and then correct the errors etc., to do justice. Further, as contended by Mr. Khapre, there is no need to make the prayer to challenge the order specifically in the Memorandum of Appeal or in the prayer clause of the appeal. What is stated in the provision is that the appellant may set out the ground of objection and nothing more. Even otherwise, I find in para 5 of the Memo of Appeal the ground of objection and the prayer which read thus:-
œ5. The learned Trial Court erred in not granting opportunity to the appellant no.1 to examine its witness.
Prayer: It is, therefore, most humbly prayed that this appeal be kindly allowed with costs by dismissing the plffs suit with costs throughout in its entirety, and in any event, alternatively the case be kindly remanded to Trial Court, for trial as per law to the Court of competent jurisdiction, and to give an opportunity to the parties to make their submissions and lead evidence;
Hence the answer to Question No.2 is as above.?
16. Answer to Question No. 3 :-
The next submission made by Mr. Khapre is that the argument in relation to application [Exh.144] that the appellant was denied opportunity of leading evidence must be held to have been abandoned, since it has not to be found in the judgment recorded by the Lower Appellate Court. According to him, since the judgment does not show that such an argument was advanced, the record and proceedings of the District Court/Judge must be held to be correct by invoking the principle of sanctity of Record of the Courts. At any rate, he then argued that the appellant was never prevented from making an application for speaking to minutes to the District Judge or rectification of the error, if any, in respect of the argument about application [Exh.144], so that the learned Lower Appellate Court could have, if the appellant was really right, given his view. He, therefore, submitted that the appellant cannot be allowed to challenge the sanctity of the record of the District Court/District Judge, including the Judgment. On the contrary, Mr. Bhangde, learned Senior Adv., for the appellant, replied by citing the decision of the Supreme Court in the case of Urviben Sheth [cited supra], and argued that no such sanctity is contemplated in respect of the record and proceedings of the District Court, and at any rate, according to him, as a Lower Appellate Court, it was the duty of the Court to examine the entire record and to find out whether order below Exh.144 was legal, correct and proper, since that was a Court of facts entitled to assess the validity of the order below Exh.144.
17. I have given careful consideration to the last issue raised before me by counsel for both the parties. Before going to the said question, it would be appropriate to quote para 5 from the Judgment of the Supreme Court in case of Joint Commissioner of Income Tax, Surat [cited supra], which reads thus:-
œ5. We, therefore, before proceeding to decide the matter on merits, once again would like to reiterate few guidelines for the courts, while writing orders and judgments to follow the same. These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case:
(a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; it should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order.
(b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion.
(c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader.
(d) Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been considered, should be mentioned. While writing a judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative.
(e) Language should not be rhetoric and should not reflect a contrived effort on the part of the author.
(f) After arguments are concluded, an endeavour should be made to pronounce the judgment at the earliest and in any case not beyond a period of three months. Keeping it pending for a long time sends a wrong signal to the litigants and the society.
(g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society.
The aforesaid are some of the guidelines which are required to be kept in mind while writing judgments. In fact, we are only reiterating what has already been said in several judgments of this Court.
The aforesaid guidelines issued by the Apex Court and in particular Guideline 5 [f] will have to be pressed into service in the instant case. Admittedly, the Judgment was pronounced by the Lower Appellate Court after the lapse of four months and twenty-six days after hearing the arguments. The fact of the matter is that the crucial ground about wrong rejection of application [Exh.144] disallowing the defendant from adducing any evidence was raised in the Memo of Appeal, so also there is a prayer and, therefore, there is a reason to believe that the learned Lower Appellate Court forgot because of lapse of period of four months and twenty-six days to address on the said crucial point. That apart, I have myself perused the record of the Lower Appellate Court and I find the following argument by counsel for appellant was noted in the notes of arguments taken by Lower Appellate Court dated 27/8 on record [back of page no.114] in the handwriting of the learned Judge :-
RohankarAdv., was ill. Application was rejected. Chance was not given.
It clearly appears that Adv. Mr. Rohankar for the appellant-defendant being ill, the argument was made that the appellant-defendant should have been given a chance. Thus, there is no doubt in my mind that the said argument was advanced, but then due to lapse of time in delivering the judgment, the said crucial ground was left out. I am not, therefore, prepared to accept the submission that the said ground was abandoned at the arguments.
The next question is of some significance. The argument that principle of sanctity of record must be extended to the Courts other the Courts of Record must be turned down. As a matter of fact, the Supreme Court in the case of Urviben Seth [cited supra] has precisely answered the said issue. With respect, I quote paras 10, 16, 17, 18 and 19 from the said judgment as under:-
10 The other ground which weighed with the High Court is that the statement recorded in the judgment of the court cannot be contradicted by any affidavit or any other evidence and in coming to the said conclusion the High Court relied on the judgment of this Court in Daman Singh v. State of Punjab._
16. The reliance placed by the High Court on the judgment of this Court in Daman Singh is rather misconceived. In the said case, what this Court held was when several points were raised in a writ petition before the High Court, and argument is confined to some grounds or points, as other grounds are considered by the counsel unworthy of canvassing, thereafter the counsel cannot make a grievance that other grounds were not considered by the Court (see SCC p. 682, page 13).
17. The situation in this case is not similar to the one pointed out in Daman Singh. Here the High Court relied on the principle of sanctity of a record entered by a court and held that what is recited in the court record is sacrosanct. The High Court, in the process, fell into an error by equating the record of proceedings in a tribunal with proceedings in a court of record. Under our hierarchy of courts, a High Court (under Article 215) and the Supreme Court (under Article 129) are recognized as courts of record. A Motor Accident Claims Tribunal constituted under the Motor Vehicles Act, 1988 is a civil court of limited jurisdiction, and is certainly not a court of record. The infallibility of its formal record is one of the earliest marks of a court of record, but it has developed other characteristics too (see A History of English Law by W.S. Holds-worth, Vol.5, p. 158).
18. In R. v. Aaron Mellor, it was held:
We must consider the statement of the learned Judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of court which of itself implies an absolute verity.
This has been followed by this Court in State of Maharashtra v. Ramdas Srinivas Nayak.
19. Therefore, the principle of sanctity of recitals in court proceedings is available to a court of record. This principle cannot be stretched to the proceedings of a tribunal. Unfortunately the High Court failed to appreciate this.
It is, thus, clear that the said principle cannot be extended to the courts other than the courts of record, namely High Courts [under Art. 215] and Supreme Court [under Art. 129]. Hence I answer the Question No.3 as under:-
The principle of sanctity of recitals in the court proceedings is applicable only to the Courts of Record , i.e., High Courts [under Article 215] and the Supreme Court [under Article 129]. The principle does not extend to the court proceedings in other Courts.?
18. Answer to last Question No. 4 :-
Counsel for respondents contended that application for Speaking to Minutes or for rectification of the alleged error should have been made before the same Presiding Officer. It is not possible to accept the submission made by the learned counsel, since after the pronouncement of the judgment, the learned District Judge or the Lower Appellate Court became functusofficio, and then there is no regulatory provision under Civil Procedure Code to enable the Lower Appellate Court to accept any such application for rectification/speaking to minutes as contended by Mr. Khapre. I am well supported in this view by the decision of the Apex Court in the case of State Bank of India and others Vs. S.N. Goyal [(2008) 8 SCC 92]and I quote the following extract from paras 26, 27 and 28 thereof:-
œ26. It is true that once an authority exercising quasi-judicial power takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage an authority becomes functusofficio in regard to an order made by him. P. Ramanatha Aiyars Advanced Law Lexicon (3rd Edn., Vol.2, pp.1946-47) gives the following illustrative definition of the term -functus officio:
Thus a judge, when he has decided a question brought before him, is functusofficio, and cannot review his own decision.
27. BlacksLaw Dictionary (6th Edn., P-673) gives its meaning as follows:
Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority.
28. We may first refer to the position with reference to civil courts. Order 20 of the Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer [if the Judge is specially empowered (sic by the High Court) in this behalf]. The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review. Thus, where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functusoffcio when he pronounces, signs and dates the judgment (subject to Section 152 and power of view). The position is different with reference to quasi-judicial authorities. While some quasi-judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi-judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi-judicial authority will become functusoffcio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned. When an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the authority will become functusofficio. The order dated 18-1-1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the appointing authority became functusofficio when it signed the note dated 18-1-1995.?
Hence I answer the said Question No.4 in affirmative.
19. The next submission made by Mr. Khapre is that because of lapse of long period of thirty five years, instead of making a remand order, this Court should frame an issue for allowing the defendant to adduce evidence and then invite a finding from the Trial Judge and till then to keep these appeals pending before this Court cannot be accepted. Still I have given anxious thought to what Mr. Khapre, learned counsel contended. The reason is that it is not possible to surmise at this stage whether after the defendant adduces its evidence, the plaintiff would require an opportunity to lead further evidence or take such steps which are available in law, or the defendant may require the plaintiff or her witnesses for any other purpose before Court. At the same time, it is not possible to imagine what evidence the defendant should give before the Trial Judge in its right to lead evidence and that is why the submission made by Mr. Khapre that there can be no evidence because the extended lease also stood expired cannot be accepted. It is not possible for me to pre-judge the issue as to what evidence would be led by the defendant in support of its case. Nay, it would be wrong to assume any such thing. That apart, I have already held that the Second Appeals have remained pending in this Court for the last fourteen years. I have also found as a fact that because of objections raised by the respondent-plaintiff, the application [Exh.144] was illegally rejected. The First Appeal before the District Court remained pending for about eleven years. Looking to these facts, though it is true that about thirty-five years have been spent in the Court by the plaintiff, it cannot be said that the appellant-defendant HPCL is to be blamed. However, an arrangement to decide the suit in a time-bound programme can certainly be made by this Court. At the same time, what I find there is hardly any point in remanding the proceedings to the Lower Appellate Court, since I have rendered a categorical finding that the application [Exh.144] was illegally rejected and the defendant was denied a chance of adducing its evidence. That being so, the remand order cannot be made to the Lower Appellate Court, but it will have to be made by remanding Regular Civil Suit No. 302 of 1979 to the first court, i.e., Trial Court [Civil Court]. Hence the following order:-
ORDER
[a] Second Appeal Nos. 340 and 356 both of 1999 are partly allowed.
[b] Regular Civil Suit No.302 of 1979 is remanded to the learned Trial Judge for a fresh trial.
[c] The defendants in both the suits are given opportunity to lead their respective evidence, if any, on or before 6th May, 2014 and the Court shall not adjourn the proceedings for recording the evidence beyond the said date.
[d] In case the plaintiff wants to adduce any evidence or re-examine the witness, or as the case may be, the same shall be done, of course, with opportunity to the defendants according to law on or before 30th June, 2014. Trial shall be closed and the decision shall be rendered by the learned Trial Judge on or before 31st July, 2014.
[e] Liberty is reserved in favour of respondent-plaintiff to take such steps as are available in law for expeditious disposal of the future appeals, if any.
[f] The appellant Hindustan Petroleum Corporation Ltd., in both the cases shall continue to pay enhanced occupation charges at the rate of Rs.22,500-00/- [rupees twenty-two thousand five hundred only] per month as directed by this Court, till the decision of suit after remand, and if any arrears are not cleared, the same shall be cleared by the next date.
[g] Parties to appear before the learned Trial Judge on 11th April, 2014.
20. Steno copy of this order be supplied to the parties as per rules.