We find that the High Court has passed the impugned order as an ad interim measure. We have no doubt that if the counsel appears before the High court and explains his position, the High Court may consider the merit of his submission and pass an appropriate order.
With these observations, we dismiss this Special Leave Petition.
Nothing said in this order shall be construed as expression of opinion on the merit of the case of the petitioner."
The question is as to whether this court proceeded to dispose of the special appeal finally on 10.10.2014 without there being any valid order condoning the delay as alleged by the applicant.
From the facts narrated above, it is evident that an order was admittedly passed on the memo of the delay condonation application which fact has not been denied. Thus the court pronounced an order condoning the delay. Not only this, the appeal itself was admitted and rule was issued on the same day by a separate order on the memo of appeal which has been duly signed by both the Hon'ble Judges. It is thus clear that an order was passed and signed admitting the appeal after condoning the delay. It is not the case of the applicant that the order condoning the delay had not been pronounced or delivered. The affidavit and grounds of review do not allege that no order had been delivered. The only ground and allegation is that it was not signed therefore the order so transcribed is a waste paper.
The issue as to whether non-signing of the order would by itself be conclusive of the fact that it is no order in the eyes of law has to be considered in the background that the appeal was admitted and the order of admission was consciously signed by the Hon'ble Judges. Apart from this, the order passed on the delay condonation application is not disputed to have been passed and the grievance is only with regard to the absence of signatures.
In this background, it would be appropriate to refer to a couple of decisions of the Apex Court, namely Surendra Singh and others Vs. State of U.P., AIR 1954 SC 194 and Vinod Kumar Singh Vs. Banaras Hindu University and others, AIR 1988 SC 371. There are a couple of more decisions in this regard, namely Sangam Lal Vs. Rent Control and Eviction Officer, Allahabad and others, AIR 1966 Allahabad (FB) 221 and Yadlapati Venkateswarlu Vs. State of A.P. And another, 1995 Supp (2) SCC 590.
Paragraph 11 of the judgment in the case of Surendra Singh (supra) is extracted hereinunder to demonstrate as to what is an actual judgment as the said decision was directly interpreting the provisions of Rule 1 of Chapter VII of the Allahabad High Court Rules, 1952.
(11). 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, dis- cuss 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, how- ever 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".
It may be relevant to point out that the said decision has been followed by the Full Bench in the case of Sangam Lal (supra).
The issue raised herein is about the absence of signing of the order and not about the pronouncement of the order. In this regard, Rule 2 and Rule 3 of Chapter VII of the 1952 Rules indicate that whenever a judgment is "delivered orally" in open court it shall be taken down by a Judgment Clerk and a transcript thereof shall form part of the record.
In the instant case, it is not the case of the applicant that such an order was not pronounced. To the contrary, the order was pronounced and delivered and has been transcribed by the Judgment Clerk.
Rule 3 of the said rules, requires that the judgment Clerk shall initial the transcript. In the instant case from the record, we find that it has been initialled by the Judgment Clerk and the date has also been affixed.
The issue of signing the judgment comes thereafter as provided for under Rule 4 of Chapter VII. Thus the act of signing of the order after being pronounced is a formal expression under the aforesaid rules.
However, in view of the decision in Surendra Singh's case (supra), it is clear that whenever a judgment and order is pronounced in an open court, it comes to be accepted as a formal order of declaration of the mind of the Judges and is not a tentative opinion. The moment it is finally pronounced and delivered it becomes operative.
The issue herein is, would the absence of signatures of the Hon'ble Judges on the delay condonation order render it a nullity. This issue has been directly answered by the Apex Court in the case of Vinod Kumar Singh (supra). Paragraph 7 of the said judgment is extracted hereinunder:-
"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."
The ratio of the aforesaid judgment on a full reading thereof is that once a judgment and order is finally pronounced in court it expresses the mind declared by the Judges which sets into motion a judgment. The parties act upon it and it is not possible to alter it. The only exception carved out is that before the order is signed it can be altered but only after hearing the parties and on good reasons to be indicated. It has further been indicated in the judgment of Vinod Kumar Singh (supra) that a judgment pronounced in open court should be acted upon unless there be some exceptional features and if there being so the same should appear from the record.
Thus it is not the case of the applicant that there was any request for altering the order of condoning the delay or any application filed to that effect. To the contrary it is established that the orders for condoning the delay were pronounced and delivered in open court which factum is not disputed. Not only this a Special Leave to Appeal was filed before the Apex Court challenging the order of the admission and grant of interim relief which SLP has been dismissed by the Apex Court. It is thus clear that the opinion expressed by the learned Judges for condoning the delay had formed part of the order of admission that had been signed even though the order of delay condonation separately transcribed remained unsigned by the Judges.
In our opinion, that was a mere formality and an error, which technicality cannot render the order condoning the delay to be invalid. It appears that the said order remained unsigned due to some mistake. Consequently, this cannot be a ground to accept the arguments of the learned counsel for the applicant for reviewing the judgment.
The signature of a person is strictly his name, etc. written with his own hand. It is a person's name, initials, or mark, used in signing. A signature is only an acknowledgment of the actual declaration made. It is to certify a performance that may be on a transcription or a printed matter or any other form of written declaration. It is not the act itself, which has already been performed earlier. It is the taking of a responsibility recognizing one's own act and a token expression conveying recognition of the same.
This instant case is peculiar in the sense that the delay condonation matter and the admission of the appeal was heard simultaneously and two separate orders were passed, one condoning the delay and the other admitting the appeal. The order condoning the delay has not been signed but the order admitting the appeal has been duly signed. The only inference that can be drawn is that once the appeal has been admitted, the delay will be deemed to have been condoned, moreso, when the applicant does not deny the passing of the order on the delay condonation matter. What he contends that the learned Judges did not sign the same and therefore it is a nullity. In our considered opinion this technical argument cannot come to the aid of the applicant, inasmuch as, once the appeal has been admitted the court will be presumed to have applied its mind and condone the delay. The absence of signatures will not be therefore an impediment for us to review the judgment dated 10.10.2014. Consequently, this point also does not hold water.
The special appeal is a continuation of the writ petition and is an exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India as an intra-court appeal against the order of a Single Judge. The issue of territorial jurisdiction does not appear to have been examined by the learned Single Judge which goes to the root of the matter.
For the reasons aforesaid, we do not find any good ground to review our judgment dated 10.10.2014. The review petition is accordingly dismissed.
Order Date :- 19.11.2014 sahu