CIVIL

Law Points on Judgment Writing

Today, there is a general decline, in the communication skills. While the electronic communication techniques have improved the speed, they have also led to grammar and syntax becoming casualties. The legal fraternity and judicial officers are no exception to this general decline. Therefore, some lovers of Tamil actually argue that it is better to allow an alien language than one’s own mother tongue to suffer. This highlights the importance of improving the linguistic skills of Judicial Officers both in Tamil as well as in English since officers who have a long run, may have to acquire proficiency in both. Hence, it is necessary to impart special training periodically for the officers in linguistic skills, as otherwise, the litigants may not be able to decipher what is actually sought to be communicated to them, in the form of Judgments and Orders. [Madras High Court in Solai Subramanian Alias vs The Chief Secretary-1/07 /2014-W.P(MD)No.2394 of 2010]

BULLET 2The High Court has the authority under its powers of superintendence to make rules to be followed by the subordinate judiciary to ensure dispensation of justice in accordance with acknowledged principles of law and natural justice. So far as those rules do not conflict with any statutory provisions having the force of law, certainly these rules have a binding effect on the lower judiciary. [Gujarat High Court in Ismail Haji Mohammed Abrahani And  vs State Of Bombay – 11/10/ 1965-AIR 1966 Guj 264]

BULLET 2In an article ‘On Writing Judgments’, Justice Michael Kirby of Australia [(1990) (Vol.64. Australian Law Journal p.691)] has approached the problem from the point of view of the litigant, the legal profession, the subordinate Courts/tribunals, the brother Judges and the judges’ own conscience. To the litigant, the duty of the Judge is to uphold his own integrity and let the losing party know why he lost the case. The legal profession is entitled to have it demonstrated that the Judge had the correct principles in mind, had properly applied them and is entitled to examine the body of the Judgment for the learning and precedent that they provide and for the reassurance of the quality of the Judiciary which is still the centre-piece of our administration of justice. It does not take long for the profession to come to know, including through the written pages of published judgments, the lazy Judge, the Judge prone to errors of fact etc. The reputational considerations are important for the exercise of appellate rights, for the Judges’ own self-discipline, for attempts at improvement and the maintenance of the integrity and quality of our judiciary. From the point of view of other Judges, the benefit that accrues to the lower heirachy of Judges and tribunals is of utmost importance. Justice Asprey of Australia had even said in Pettit vs. Dankley [(1971 (1) NSWLR 376 (CA)] that the failure of a Court to give reasons is an encroachment upon the right of appeal given to a litigant. In our view, the satisfaction which a reasoned Judgment gives to the losing party or his lawyer is the test of a good Judgment. Disposal of cases is no doubt important but quality of the judgment is equally, if not more, important. There is no point in shifting the burden to the higher Court either to support the judgment by reasons or to consider the evidence or law for the first time to see if the judgment needs a reversal. [M/s. Hindustan Times Limited vs. Union of India & Others’ (1998)2 SCC 242 ]


1-Conclusion of Distt. Judge that trial Judge had recorded his judgment with pencil in his own hands comprising 33 pages and it was impossible that such a judgment could be written in 45 minutes and that too while Trial Judge (Senior Civil Judge) was in bathroom.

2-Constitutional jurisdiction of High Court, delayed pronouncement of judgment after 10 months of hearing arguments, proceedings involved civil rights, hence, considered as civil proceedings, Regardless of whether jurisdiction exercised by High Court was original appellate or constitutional, once proceeding before High Court were of civil nature ,the C.P.C would apply unless specifically excepted. Unreasonable delay of 10 months had caused prejudice. Bulk of documentary evidence going to the root of the case did not find mention in the High Court Judgment. Supreme Court converted Leave petition into appeal and remanded the case.

3-Contents of judgment and decree excepted from judicial officer that he would pass the speaking order to enable everyone to have an idea or the view which found favour with the presiding officer or such court or Tribunal- Judgment should contain concise statement of the case, points for determination which had been raised, the decision thereon reason for such decision judicial order must be speaking and meaningful by it self exhibiting that the court had applied its mind to the resolution of all the material issues.

4-Decree in suit for rendition of accounts – levy of stamp duty on such decree, scope, phrase any property” as used in section 2(15) of stamp act 1989 would include both types of moveable or immovable properties.

5-Decree must agree with judgment.

6-Discretion is to be exercised according to rational reasons which means that; (a) there be finding of primary facts based on good evidence and (b) decisions about facts be made for reasons which serve the purposes of statute in an intelligible and reasonable manner. Actions which doe not meet these threshold equipments are considered arbitrary and misuse of power.

7-Disposal of interconnected and interlinked issues would not cause any prejudice to a party.

8-Divorce – Khula – Decree for dissolution of marriage can be passed even though the other issues of cruelty and non-maintenance are not proved.

9-Even ex-party order/judgment is required to be a speaking order/judgment even if passed under Order IX Rule 6. If initial order was void, no limitation;

10-Findings of the Rent Controller on the issue of default were given in a single sentence and did not discuss the accumulative effect of statement of the tenant where he had explained reasons for non-tendering of the rent. Judgment was violative of O .XX irrespective that C.P.C did not apply in the rent matters.

11-Ground in the Appellate Court, inter alia, that Trail Court was not legally competent to decide four issues collectively being against O XX R.5 C.P.C -held – no doubt Trial Court should have given finding on each issue separately, but where certain issue were linked with each other and where considered together, such consideration was not violative of O XX R. 5 C.P.C.

12-In a pre- emption suit, parties themselves modified original decree. Court  can accept it,  and modify the original decree in terms thereof.

 13-Issues in civil proceedings are to be decided on preponderance of evidence. In case of word against word party on whom onus lay must fail.

14-Judgment did not conform to the provisions of law as it was to be based on evidence in the case and not other material or factor was to be taken into consideration. Furthermore the relief had to follow findings on the issue and should have been consistent with those findings. Such a disposition of the matter could not qualify to be a judgment in law and was liable to be set aside.

15-Judgment passed without hearing and without informing the party of the existence of the ex-parte order is no judgment question of limitation does not arise against void order.

16-Judgment to be signed. Sending of the files to the office of the Court was a ministerial act and could not be determinative of the date of the signing the judgment.

17-Judgment would mean judicious determination of dispute between parties specifying grounds and substantial reasoning for arriving the particular decision. Judgment, held ought to be self contained, un ambiguous, conveniently intelligible, lucid and capable of only one interpretation without leading for guess or probabilities with regard to matters sought to be determined. Proper or valid judgment would be devoid of apparent vagueness, ambiguity or possibility of different or double interpretation. Bar of limitation for filing appeal , against decrees passed in utter disregard of legal requirement viz recording of reasons for granting decree would not be applicable”;

18-Judgment written and signed after its pronouncement would be a mare irregularity.

19-Lack of issue -wise findings not fatal-however, issue-wise judgment from the original trial court is thumb rule. Issue wise discussion not mandatory for Appellate Court.

20-Limitation does not run where impugned order is passed without hearing and notice to a party whose presence was otherwise necessary.

21-Member Board of Revenue, reserved the judgment/order and passed order after about ten months of hearing the case. Statutory obligation under Order XX Rule 1 C.P.C was to decide matters within thirty days of hearing the case. The order was not sustainable and was declared to be of no effect.

22-Mere observation in a case under Order 37 C.P.C based on Pronote while considering the grounds of leave on P.L.A that the defendant has not given any justification for grant of leave not considering the affidavit attached thereto , and asking the plaintiff to prove his case , the conclusion drawn by the trial judge was wrong. Judgment feel short of requirements of order XX C.P.C”

23-Mere reproduction of evidence by the Appellate Court did not mean that the evidence of the parties has been discussed or referred to, judgment revealed cursory and casual approach of Appellate Court to the case. Judgment suffered from non-reading of evidence on record .Trial court had acted illegally etc. Judgment of the appellant was set aside and case was remanded to the Appellate Court;

24-No need to specifically give the issue no or reference as long as the question in question i.e. the “limitation” was consciously dealt with.

25-Order appealed against found to be a nullity – Appellate Authority can entertain and decide on merit even a time barred appeal against a void order.

26-Order of a tribunal found to be without jurisdiction. All successive orders based upon it are illegal and liable to be quashed in writ jurisdiction.

27-Order void ab initio- A nullity- such order does not require to be set aside in appeal or any other proceedings.

28-Order XX ,  Correction in judgment except u/s 152 C.P.C or a review after announcement , when the court becomes ” functus officio”. Therefore “correction” is not sustainable in the eye of law;

29-Service Tribunal mentioned in detail respective pleadings but had not resolved those points. No reason given in support of conclusion nor evaluation of documentary evidence made/discussed .It is no judgment in the eye of law.

30-Specific performance, Rescission of contract. Decree of the Court for specific performance of agreement is in the nature of preliminary decree and extension of the time for deposit of sale consideration – conveyance deed has to take place- during this period decree-contra continues to subsist-extension of the time is not an alteration or modification of a decree;

31-Successor judge can pronounce judgment written by his predecessor-Transferred judge who heard the case could complete the judgment which could have been announced by his successor. If case had been heard by Court or presiding officer, such officer could pronounce judgment/order even if he had been transferred or promoted. Where a presiding officer had concluded the hearing of the matter before his transfer, such officer could decide the matter before relinquishing the charge. The ratio is that if the outgoing judge has already heard the case, he could decide the same;

32-The requirements that orders of court ought to be publicly made and announced is not only a matter of accepted judicial procedure ,but invariably a requirement of law regulating the functioning of Civil and Criminal Courts.

33-The signing of judgment as envisaged under Cr.P.C is signing in open court at the time of pronouncement of the judgment and not signing at the home .in the case, therefore, the simple writing and signing of the judgment was wholly ineffective and did not operate as a bar to further proceedings.

34-TIME FOR PRONOUCEMENT OF JUDGMENT “Order XX, R.1 ,High Court Rules & Orders  had no prescribed time for pronouncement of the judgment, nevertheless , it was desirable to deliver the judgment without inordinate delay so that the justice must not only be done by manifestly appear to be done.

35-Trail Court failed to give issue wise findings- Appellate Court while maintaining the judgment did not form points for determination ignoring mandatory requirements of O. XLI R.31 C.P.C judgments & decrees of both the lower courts set aside.

36-Trail court had dealt with the matter in a proper way and the omission to discuss the issue wise ratio had not resulted in injustice. High Court can decline to interfere with the concurrent judgments below.

37-Trail court while recording its findings on merit of the case did not further discuss the evidence. It is not a reasoned judgment under Order XX.

39-Where law provides for writing, announcing and signing a judgment that must be done in a way to get validity to the judgment.

40-Where no evidence was produced on the issue framed, the Courts below were left with no other option but to decide the same against the side on which onus of proof lay.

41- Section 33, Civil P. C. lays down that the Court, after the case has been heard, shall pronounce judgment & on such judgment decree shall follow. Order 20 Rules 1 to 3 lay down when & in what manner a judgment is to be pronounced. Rule 2 says that a ”Judge may pronounce a judgment written but not pronounced by his predecessor”. Rule 8 of 0. 20 says:

“Where a Judge has vacated office after pronouncing judgment, but without signing the decree, the decree drawn up in accordance with such judgment may be signed by his successor, or if the Ct. has ceased to exist , by the Judge of any Ct. to which such Ct, was subordinate.”

It is significant that in Section 33 & Order 20 Rule 1, the word used is “Court” while in Rules 2 to 8 the word used is “Judge”. The use of the different words is deliberate & not accidental. It is the function of the Ct. which tries a case to pronounce judgment on it in open Ct. after notice has been given to the parties or to their pleaders. The actual delivery of the judgment may be done by a Judge who succeeded the Judge who heard the case or wrote the judgment. Such a procedure is absolutely necessaries for the convenience of the litigants as. indeed, it frequently happens that a Judge who has heard arguments & written out his judgment is prevented by illness or other cause from attending Ct. to pronounce it. It is doubtless true that in such cases the judgment so prepared, until it is pronounced in open Ct. merely remains a memorandum prepared by the Judge & does not take the effect of a judgment, & that it comes into effect as a judgment only after it has been pronounced in open Ct. in the manner prescribed. It is also clear from the language of R. 2 that the Successor Judge is not bound to pronounce the judgment prepared by his predecessor it is left to his option either to deliver the judgment prepared by his predecessor Judge who does no more than read in open Ct. a judgment prepared by his predecessor, adopts that judgment as his own, & can it be said by any stretch of language that the judgment so pronounced becomes the judgment of the successor Judge himself ? A judgment is defined as “a statement given by the Judge of the grounds of a decree or order”. How can a judge, who has not heard the evidence or the arguments in a case, give a statement of the grounds for the decree in that case? The statement of the grounds of the decree is given by the Judge who writes out the judgment after hearing arguments & taking evidence It is a judicial act of a Ct. But the mere reading of that judgment in open Ct, by his successor is an official act in his capacity as Judge. There is a fundamental distinction between the two acts. [AIR 1951 Ori 313]

42- Rights & obligations under a decree arise not from the date when the decree is drafted & signed but from the very moment that the judgment is pronounced. This has been pointed out in the judgment in Ramchandra v. Bhalu Patnaik, I. L. R. 1950 cut. 253 at pp. 270 & 271 : (A. I. R. (37) 1950 Ori. 125, F. B.). It is also indisputable that the mere writing of the judgment does not constitute the passing of the decree, though in fact it has been later on pronounced. Order 20, R. 3 shows that a judgment becomes final & unalterable only when it is pronounced & not before it, and the judgment becomes operative only from the date of the pronouncement. There can, therefore, be no doubt that a decree cannot be said to have been, passed before the judgment has been pronounced. According to Section 33, C. P. C. the Ct. after the case has been heard, shall pronounce the judgment & on such pronouncement a decree shall follow. [AIR 1951 Ori 313]

43- Sec 264(Cr.P.C)  casts a statutory obligation of the Magistrate to record substance of the evidence and the substance of the evidence and the substance of the evidence so recorded is therefore, necessarily a part of the record of the case and is not longer a private property of the Magistrate as it used to be, before the amendment.

44-The memorandum of the substance of the evidence of  witness, to be treated as a part of the record and this should apply also in cases of summary trials. The Sessions Judge while disposing of a criminal appeal should not remand the case to the trying Magistrate to write out proper judgment after rehearing the parties as in his opinion the judgment of the Court was unsatisfactory. The Sessions Judge sits  for appeal and is the final Court of fact and entitled to go into the evidence and give his finding himself. It is, therefore, not necessary for him to  remand the case to the trial Court for re-writing judgment.[Tara Chand Singh v. Emperor. (1905) ILR 32 Cal 1069]


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