Gauhati High Court
Md. Matiur Rahman vs Ramjan Ali on 5 January, 2001
Equivalent citations: AIR2001GAU148, AIR 2001 GAUHATI 148
JUDGMENT
1. This Revision petition is to be allowed. It is really an unfortunate state of thing that for the fault of the Presiding Officer a parry is to suffer. There was an application Under Order 9 Rule 13 of the Code of Civil Procedure and a Medical Certificate was produced and that was exhibited and the signature of the Doctor was also exhibited. Thereafter the exhibit was not signed by the then Presiding Officer (Shri L. C. Nath, then Munsiff No. 1, Golaghat). But he took that document into consideration and allowed the application Under Order 9 Rule 13 of the Code of Civil Procedure. There was an appeal being Misc. Appeal No. 1/96 before the learned Assistant District Judge at Golaghat and the learned Assistant District Judge by the impugned Judgment dated 27/9/96 has held that the Judgment of the learned Munsiff is nullity in the eye of law and as such he quashed that Judgment and sent back the matter to the learned Munsiff with a further direction that this Presiding Officer, Shri L. C. Nath may be asked to appear before the learned Munsiff at Golaghat and to sign the document and that too at his own cost, No doubt that there is laches on the part of this Presiding Officer but a party should not suffer for that reason. The document in question very well could have been sent by the learned Assistant District Judge to that Presiding Officer who failed to sign the document by post and it would have come back to him. Further this matter can be looked from the angle of section 99 of the Code of Civil Procedure, that also will show for such irregularity a Judgment should not be set aside. In this connection Shri Sarma, learned Advocate for the petitioner places reliance on AIR 1976 22 (Delhi Development Authority, Appellant v. Shiv Charan, Respondent). That was a case where a deposition was recorded by the Presiding Officer, but that was not signed by the Presiding Officer. A question was raised that whether that will be a valid deposition or not. On the basis of that deposition the matter was decided and then there was an appeal and in the appeal the question was whether that can be deemed to be a valid deposition. A Single Judge pointed out as follows :-
'(9) In my opinion the learned Senior Sub-Judge was not right in setting aside the decree on this ground. The mere fact that the witnesses depositions were not signed by the Judge will not vitiate the trial. At least it was an irregularity Under Section 99. Code of Civil Procedure. It did not afford a ground for retrial since there is no doubt whatsoever that the depositions were recorded in the presence and under the personal direction and superintendence of the Judge. No one said that the depositions were wrongly recorded or that the witnesses did not appear in the Court below. See Alam Singh v. Seth Gopal Das AIR 1923 Nag 7(1) and Channo Mahto v. Jang Bahadur Singh AIR 1997 Pat 293.
(10) The omission in to sign the depositions was a defect or irregularity to the proceedings. But the merits of the case or the jurisdiction of the Court were not affected by the omission. A decision of a Court can not be upset merely for technical and immaterial defects. Non-commitance of Rule 5 Order 18 did not destroy the validity of the whole proceeding. Rule 5 in a rule of procedure. Rules of procedure are made to sub serve the ends of justice and not defeat them. Section 99 aims to prevent technicalities from overcoming the ends of justice. The object is to avoid circuitry of litigation (See Mohammed Hussain Khan v. Babu Kishore Nandan Sahai (AIR 1997 PC 233 and Kiran Singh v. Chaman Peswan AIR 1964 SC 340)."
2. I respectfully agree with this decision and I hold that the omission to sign the exhibit which was accepted by both sides as a piece of document and which was marked in presence of both, the parties, the failure to sign it by the presiding officer should not vitiate a Judgment and a Judgment can not be deemed to be a nullity. Accordingly the earlier order of the learned Munsiff which was set aside Under Order 9 Rule 13 shall hold the field. The impugned Judgment shall stand quashed.