Full Judgment Text
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PETITIONER:
OWNERS AND PARTIES INTERESTED IN M.V. "VALIPERO" ETC.ETC.
Vs.
RESPONDENT:
FERNANDEO LOPEZ & ORS.
DATE OF JUDGMENT19/09/1989
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
VENKATACHALLIAH, M.N. (J)
OJHA, N.D. (J)
CITATION:
1989 AIR 2206 1989 SCR Supl. (1) 187
1989 SCC (4) 671 JT 1989 (4) 10
1989 SCALE (2)642
ACT:
Calcutta High Court Rules, 1914: Chapter XXII Rule
4--Omission of Signature of witness on his deposition re-
corded on Commission-Defect whether fatal--Whether entire
evidence excluded.
HEADNOTE:
When the foreign vessel M.V. "Vali Pero" arrived at the
port of Calcutta, 10 non-Greek seamen on board that ship
filed a suit in the admiralty jurisdiction of the Calcutta
High Court for recovery of their dues. During the trial,
depositions of the defendants’ witnesses were recorded on
commission. Objection was raised on behalf of the plaintiffs
to reception in evidence of these depositions on the ground
of absence of witness’ signature of the deposition as re-
quired in Rule 4 of chapter XXII of the Calcutta High Court
Rules, 1914, applicable to the Original Side. The objection
was upheld by the learned Single Judge as also by the Divi-
sion Bench.
The learned Single Judge then decreed the suit on the
unrebutted evidence of the plaintiffs. One Special Leave
Petition has been filed against the judgment of Division
Bench affirming the order of the learned Single Judge ex-
cluding the defendants’ evidence. The other Special Leave
Petition has been filed against the judgment of the learned
Single Judge decreeing the plaintiff’s suit after excluding
the defendants’ entire oral evidence.
On behalf of the’ appellants it was contended that
omission of witness’ signature on the deposition recorded by
the Commissioner did not invalidate the deposition atleast
in a case like the present where the correctness and authen-
ticity of the deposition was undisputed; that in this sense
the requirement of the witness’ signature on the deposition
was not a mandatory requirement; that the defect was curable
by obtaining the witness’ signature even now; that the
respondents’ counsel had admitted the correctness of the
depositions; and that the respondents had omitted to raise
any objection will after the suit was closed for judgment.
In reply, the respondent relied on the reasons
188
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given in the Division Bench’s judgment construing the re-
quirement in Rule 4 as mandatory. It was also urged that the
argument of curing the defect by obtaining signatures even
now was not advanced in the High Court and should not be
permitted at this stage.
Allowing the appeals and remanding the suit to the
learned Single Judge to be decided afresh, this Court,
HELD: (1) The requirement of witness’ signature on the
deposition in Rule 4 is directory even though the require-
ment of the deposition being recorded, read over to him and
corrected wherever necessary is mandatory. Mere omission of
the witness’ signature on the deposition does not render the
deposition invalid when the correctness and authenticity
thereof is undisputed. [196F]
(2) The essential requirement of Rule 4 is that the
deposition of a witness examined on commission shall be
taken down in writing, read over, and where necessary,
translated to the witness in order that mistakes or omis-
sions, if any, may be rectified or supplied. The mandate in
Rule 4 to this extent must be complied strictly in order to
ensure a correct record of the deposition. [196B-C]
(3) The signature of the witness is not a part of the
deposition and apart from acknowledging the correctness of
his deposition on the deposition itself, it is not essential
for any other purpose in this context. [196D]
(4) While the essential requirements of Rule 4 are no
doubt mandatory requiring strict compliance, the requirement
of witness’ signature therein is directory of which substan-
tial compliance is sufficient. [196G]
(5) There is substantial compliance of this directory
requirement where the correctness and authenticity of the
deposition is undisputed. Compliance can be had of this
requirement even by subsequent admission of correctness of
the deposition by the witness, in case of dispute. [196H;
197A]
(6) Under the Code of Civil Procedure a deposition
recorded in a Court, except that under Order 18, Rule 16
C.P.C., does not require the witness’ signature on the
deposition. The requirement of signature is not court’s
assurance since the witness is not examined in court. Ac-
cordingly, it cannot be said reasonably that the omission of
witness’
189
signature on the deposition renders the deposition incom-
plete. [196E]
(7) Rules of procedure are not by themselves an end but
the means to achieve the ends of justice. Rules of procedure
are tools forged to achieve justice and are not hurdles to
obstruct the pathway to justice. [197B]
(8) Construction of a rule of procedure which promotes
justice and prevents its miscarriage by enabling the court
to do justice in myriad situations, all of which cannot be
envisaged, acting within .the limits of the permissible
construction, must be preferred to that which is rigid and
negatives the cause of justice. Where the outcome and fair-
ness of the procedure adopted is not ’doubted and the essen-
tials of the prescribed procedure have been followed, there
is no reason to discard the result simply because certain
details which have not prejudicially affected the result
have been inadvertently omitted in a particular case.
[197B-C]
(9) Ordinarily, the word ’shall’ used at several places
in Rule 4 must be given the same meaning at all places.
However, it is also settled that this is not an invariable
rule and even though the word ’shall’ is ordinarily mandato-
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ry but in the context or if the intention is otherwise it
may be construed to be merely directory. In short, the
construction ultimately depends on the provision itself
keeping in view the intendment of the enactment and the
context in which the word ’shall’ has been used. [197H;
198A]
Ganesh Prasad Sah Desari & Anr. v. Lakshmi Narayan
Gupta, [1985] 3 SCR 825; Govindlal Chagganlal Patel v. The
Agricultural Produce Market Committee, Godhra & Ors., [1976]
1 SCR 451, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3986-
3987 of 1989.
From the Judgment and Order dated 23.3.1989 and 6.4.1989
of the Calcutta High Court in Appeal No. 69 1 of 1988 and
Admiralty Suit No. 6 of 1985 respectively.
Dr. Shanker Ghosh, C.R. Addy, A.K. Sil, G. Joshi and
Mrs. Urmila Narang for the Appellants.
M.K. Ramamurthi, H.L. Tiku and Ashok Grover for tne
Respondents.
190
The Judgment of the Court was delivered by
VERMA, J. Is omission of the witness’ signature on his
deposition recorded on commission, as required by Rule 4 of
Chapter XXII of the Calcutta High Court Rules, 1914, ap-
plicable to the Original Side, a defect fatal to the recep-
tion of the deposition in evidence even when the correctness
and authenticity of the deposition is undisputed? Subject to
the preliminary objection raised by Shri M.K. Ramamurthi,
learned counsel for the respondents, this is the main point
for decision on merits to be answered with reference to Rule
4 of Chapter XXII of the Calcutta High Court Rules, 1914,
applicable to the Original Side. The Calcutta High Court has
held this defect to be fatal and accordingly excluded the
entire oral evidence of the defendants recorded on commis-
sion resulting in the suit being decreed in plaintiffs’
favour on the unrebutted testimony of the plaintiffs. Cor-
rectness of this view is assailed before us.
A foreign vessel M.V. "Vali Pero" sailing under the
Greek flag arrived at the port of Calcutta on April 20,
1985; 10 nOn-Greek seamen on board that ship filed a suit on
August 2, 1985 in the admiralty jurisdiction of the Calcutta
High Court for recovery of approximately Rs. 15.40 lacs
claimed as their dues from the owners of the vessel; deposi-
tions of the defendants’ witnesses were recorded on commis-
sion and submitted to the learned single Judge trying the
suit who closed the case on 24.12.1987 for pronouncing
judgment on 12.1.1988; before delivery of judgment on
10.8.1988 objection was raised on behalf of the plaintiffs
to reception in evidence of the depositions of the defend-
ants’ witnesses examined on commission on the ground of
absence of witness’ signature on the deposition; the objec-
tion was upheld by the learned single Judge as also by a
Division Bench in a Letters Patent Appeal; and the suit has
been decreed on 6.4.1989 on the unrebutted evidence of
plaintiffs. In the meantime, one of the plaintiffs is stated
to have died while another is alleged to be critically ill;
and on the ’other hand, the vessel continues to be detained
at the Calcutta Port even after the owners have furnished
the security demanded from them by interim orders in the
suit.
Even at the risk of this description being labelled as
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oversimplification, this is the scenario of the forensic
battle in which the point raised has to be decided. We may
add that this is not the first journey to this Court of this
litigation by special leave during the trial of the suit.
191
Both the Special Leave Petitions are by the defendants,
owners of the vessel. One Special Leave Petition is against
the judgment dated 23.3.1989 of the Division Bench of the
High Court affirming the order dated 10.8.1988 of the
learned single Judge excluding the defendants’ oral evidence
recorded on commission for the above defect. The other
Special Leave Petition is directed against the judgment and
decree dated 6.4.1989 of the learned single Judge decreeing
the plaintiffs’ suit after exclusion of defendants’ entire
oral evidence. Petitioners urged that filing of an appeal
under the Letters Patent against the judgment and decree in
the suit was futile in view of the earlier Division Bench
judgment dated 23.3. 1989 on the main point in controversy
even in respect of the final decision.
The preliminary objection of Shri Ramamurthi is that the
first Special Leave Petition, apart from arising out of an
interlocutory order which does not justify its entertain-
ment, is also now infructuous after decision of the suit
itself in which that interlocutory order was made. The other
Special Leave Petition should not be entertained, according
to Shri Ramamurthi, because it circumvents the statutory
internal appeal under the Letters Patent to the Division
Bench of the High Court. Shri Ramamurthi contended that this
Court should not, therefore, entertain either of these
petitions for grant of special leave under Article 136 of
the Constitution, even though the powers are fairly wide on
account of which he does not contend that they are not
maintainable.
We shall first dispose of the preliminary objection of
Shri Ramamurthi. He has very fairly stated that he does not
challenge the maintainability of these petitions but only
assails their entertainability under Article 136. In our
considered opinion pragmatism and assurance of shortening
this unduly protracted litigation are by themselves suffi-
cient and eloquent reasons to grant leave in these matters
and to decide the above question on merits forthwith instead
of deferring that decision to a later date. Technically,
Shri Ramamurthi is right that ordinarily special leave need
not be granted where remedy of a statutory appeal being
available has not been exhausted. However, m the particular
facts of this case when the decision in Letters Patent
Appeal appears to be a forgone conclusion, the appropriate
course which commends to us is to grant leave and decide the
matter straightaway instead of deferring that decision to a
later stage after exhaustion of the futile remedy of Letters
Patent Appeal in the High Court.
We may at this stage also mention the argument based on res
192
judicata addressed to us. The point raised is: whether the
decision by a Division Bench of the High Court affirming the
learned single Judge’s order excluding the depositions from
evidence will bar a fresh adjudication of that point in the
Letters Patent Appeal filed against the final decision in
the suit? In our opinion, this academic exercise iS unneces-
sary in the present case since it cannot be doubted that
irrespective of the question of res judicata, earlier deci-
sion on the same point by a Division Bench of the High Court
will atleast be a binding precedent when the matter is
reagitated before the Division Bench hearing the appeal
against the final decision in the suit. In such a situation
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directing the resort to the remedy of an appeal under the
Letters Patent against the final decision in the suit will
needlessly delay decision of the point by this Court. We
are, therefore, of the opinion that, in the present case, it
is neither necessary to decide the question of res judicata
argued before us nor would it be appropriate to refuse leave
and direct the petitioner to first exhaust the remedy of an
appeal under the Letters Patent in the High Court. We,
accordingly, proceed to decide the point involved on merits.
Leave granted.
Having heard learned counsel for the parties, we have
formed the opinion that the High Court was in error in
excluding from evidence the depositions of the appellants’
witnesses recorded on commission and in proceeding to decide
the suit on that basis. The matter will, therefore, have to
go back to the High Court for a fresh decision of the suit
treating these depositions as evidence in the suit. In view
of this conclusion reached by us, we shall mention only the
facts necessary for deciding the main controversy at this
stage relating to the construction of Rule 4 of Chapter XXII
of the Calcutta High Court Rules, 1914, applicable to the
Original Side.
In the above Admiralty Suit No. 6 of 1985, the appel-
lants (defendants in the suit) filed an application on
February 6, 1987 for examining their two witnesses, Mr. A.
Kappos and Mr. Parakis, on commission at the Greek Embassy
in New Delhi. The respondents’ (plaintiffs in the suit)
evidence was concluded on February 23, 1987. On February 25,
1987, the learned single Judge trying the suit directed
issue of a commission for examination of the appellants’ two
witnesses on commission at the Greek Embassy at New Delhi
and Mr. B.C. Kundu, Advocate of the Alipore Bar was appoint-
ed the Commissioner for this purpose. The Commissioner
commenced recording the depositions of these witnesses at
New Delhi on May 1, 1987 and concluded it
193
on May 4, 1987. The deposition of each witness was signed by
the Commissioner after being read over to the witness who
admitted it to be correct. However, the signature of the
witness was not taken on the deposition. The Commissioner
settled the minutes in a meeting with counsel for parties in
which the depositions recorded on commission were admitted
to be correct and counsel for the parties signed the minutes
in token of their acceptance. The minutes are as under:
"A meeting was held this afternoon dated 15th
May, 1987 at 4.15 P.M. at lB, Old Post Office
St., Calcutta-I to furnish the report of the
Commission.
Members present:
Mr. Taimur Hossain -- Advocate on
behalf of
the plaintiffs
Mr. A.K. Auddy -- Advocate
(Sandersons &
Morgans) on
behalf of the
defendant
Mr. B.C. Kundu
A list of Exhibits as also copies of deposi-
tions recorded at Greek Embassy, New Delhi
were given to the parties. No amendment or
correction was suggested in the deposition by
either of the parties.
The Report of the Commissioner would
be submitted on Monday, the 15th May, 1987.
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sig. Illegible
Commissioner
Appointed by the Hon’ble
High Court vide order
dated 25.2.87
sd/- Md. Taimur Hossain
Advocate for the plaintiffs
194
sd/- A.K. Auddy Advocate 15.5.87
Received a copy
Sig. Illegible
Recd. a copy of the minutes.
sd/- A.K. Auddy."
The Commissioner then submitted his report along with
the depositions recorded by him in a sealed cover to the
Registrar (Original Side) of the High Court. The parties
also filed written submissions in the court treating these
depositions as evidence in the suit and on December, 1987
the learned trial Judge recorded the proceedings as under:
"The Court: Deposition including the documents
taken on commission are formally tendered in
Court by the learned Advocate appearing for
the defendant (in a sealed cover). Both the
parties have submitted their written argument
in Court earlier. Let this suit appear in the
List on 12.1.1988 at 3 P.M. marked "For Judg-
ment"."
It is clear that till closing of the suit for judgment,
no objection was raised on behalf of the respondents to
inclusion of the depositions of appellants’ witnesses exam-
ined on commission in evidence of the suit. Somehow the
judgment was not delivered on 12.1.1988 and even thereafter
for quite some time and the learned single Judge then made
an order releasing the suit. This led to a special leave
petition in this Court by the respondents and an order was
made by this Court requesting the learned single Judge
trying the suit to dispose of the suit on merits instead of
releasing it.
It was then on 10.8.1988 that respondents’ (plaintiffs
in the suit) counsel raised the objection to inclusion of
the depositions of appellants’ witnesses examined on commis-
sion in evidence of the suit on the ground that the deposi-
tions were not signed by the witnesses as required by Rule 4
ibid. That objection was upheld by the learned single Judge
as well as a Division Bench of the High Court in L.P.A.
against that order. The High Court has held this defect to
be fatal on its view that even the requirement of witness’
signature in Rule 4 ibid is mandatory. S.L.P. No. 4074 of
1989 is against this order. On this view, the learned single
Judge has proceeded to decree the suit on the basis of
respondents’ unrebutted evidence and S.L.P. No. 93 18 of
1989
195
is against the judgment and decree in the suit.
The controversy on merits depends ultimately on the
correct construction of Rule 4 of Chapter XXII of the Cal-
cutta High Court Rules, 1914 applicable to the Original Side
with reads as under:
"4. Deposition to be read over, signed etc.
After the deposition of any witness shall have
been taken down, and before it is signed by
him, it shall be distinctly read over, and,
where necessary, translated to the witness in
order that mistakes or omissions may be recti-
fied. The deposition shall be signed by the
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witness and left with the Commissioner who
shall subscribe his name and date of the
examination."
Dr. Shanker Ghosh, learned counsel for the appellants
contended that the omission of witness’ signature on the
deposition recorded by the Commissioner does not invalidate
the deposition atleast in a case like the present where the
correctness and authenticity of the deposition is undisput-
ed. He argued that in this sense requirement of the witness’
signature on the deposition is not a mandatory requirement,
the absence of which may invalidate the deposition. He also
contended that the defect, if any, was curable by obtaining
the witness’ signature even now for which the appellants are
prepared. He added that in order to put the matter further
beyond controversy, the affidavits of the witnesses examined
on commission were filed in the High Court during pendency
of the appeal before the Division Bench admitting correct-
ness of their depositions. He also placed strong reliance on
admission of the respondents’ counsel to the correctness of
the depositions, in the minutes recorded by the Commissioner
on 15.5.1987 as well as the omission to raise any such
objection till 10.8.1988 much after the suit was closed for
judgment on 24.12.1987. He finally urged that the mistake,
if any, was of the Commissioner in not taking the signatures
of the witnesses and no party should be prejudiced by an act
or omission of the Commissioner who was an officer of the
Court. In reply, Shri M.K. Ramamurthi, relied on the reasons
given in the Division Bench’s judgment dated March 23, 1989
for construing this requirement in Rule 4 ibid as mandatory
and on that basis excluding from evidence in the suit of
these depositions. He also contended that copies of affida-
vits of the witnesses filed in the High Court were not
supplied to the respondents. He added that the argument of
curing the defect by obtaining signatures of the witnesses
on the depositions was not advanced in the High Court due to
which it
196
should not be permitted now. Shri Ramamurthi also made the
grievance that belated pleas of the appellants have caused
needless harassment to the respondents. Since we have come
to the conclusion that these appeals should be allowed on
the construction of Rule 4 ibid, we need not decide the
other points urged.
It is needless to burden our decision with the several
well-known authorities cited at the Bar indicating the test
to be applied to decide whether a provision is mandatory or
directory. The real difficulty arises only in the applica-
tion of the well-settled principles. The essential require-
ment of Rule 4 is that the deposition of a witness examined
on commission shall be taken down in writing read over, and,
where necessary, translated to the witness in order that
mistakes or omissions, if any, may be rectified or supplied.
The mandate in Rule 4 to this extent must be complied
strictly in order to ensure a correct record of the deposi-
tion. The further requirement of signature of Commissioner
with the date of examination and deposition being left with
the Commissioner to enable its production in court is to
ensure its authenticity. The only remaining requirement in
Rule 4 of the witness’ signature on the deposition has
relevance to the admission of the witness of its correct-
ness. The signature of the witness is not a part of the
deposition and apart from acknowledging the correctness of
his deposition on the deposition itself, it is not essential
for any other purpose in this context. It is well-known that
under the Code of Civil Procedure a deposition recorded in a
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Court, except that under Order 18, Rule 16 C.P.C., does not
require the witness’ signature on the deposition. It appears
that witness’ signature on the deposition recorded on com-
mission is only required for court’s assurance since the
witness is not examined in court. Accordingly, it cannot be
said reasonably that the omission of witness’ signature on
the deposition renders the deposition incomplete. If this be
the true import of the witness’ signature on the deposition
recorded on commission, the deposition cannot be treated as
incomplete, much less, invalid merely due to omission of
witness’ signature when correctness or authenticity of the
deposition is undisputed.
It appears to us that while the essential requirements
of Rule 4 indicated above are no doubt mandatory requiring
strict compliance, the requirement of witness’ signature
therein is directory of which substantial compliance is
sufficient. There is substantial compliance of this directo-
ry requirement where the correctness and authenticity of the
deposition is undisputed. Compliance can be had of this
requirement even by subsequent admission of correctness of
the deposition by
197
the witness, in case of dispute. This construction of Rule 4
made by us also promotes the object of its enactment instead
of negativing it.
Rules of procedure are not by themselves an end but the
means to achieve the ends of justice. Rules of procedure are
tools forged to achieve justice and are not hurdles to
obstruct the pathway to justice. Construction of a rule of
procedure which promotes justice and prevents its miscar-
riage by enabling the court to do justice in myriad situa-
tions, all of which cannot be envisaged, acting within the
limits of the permissible construction, must be preferred to
that which is rigid and negatives the cause of justice. The
reason is obvious. Procedure is meant to subserve and not
rule the cause of justice. Where the outcome and fairness of
the procedure adopted is not doubted and the essentials of
the prescribed procedure have been followed, there is no
reason to discard the result simply because certain details
which have not prejudicially affected the result have been
inadvertently omitted in a particular case. In our view,
this appears to be the pragmatic approach which needs to be
adopted while construing a purely procedural provision.
Otherwise, rules of procedure will become the mistress
instead of remaining the handmaid of justice, contrary to
the role attributed to it in our legal system.
In this case, none disputes the correctness and authen-
ticity of the depositions recorded on commission but there
is omission of witness’ signature thereon. The question is:
does reception of these depositions in evidence violate rule
3 ibid in a manner which is impermissible or this omission
can be overlooked as insignificant since correctness and
authenticity of the depositions is undisputed? We have no
doubt that cause of justice would be served instead of being
thwarted and the avowed object of Rule 4 ibid achieved by
treating it to be an insignificant omission in the present
case.
The consequence of failure to comply with any require-
ment of Rule 4 ibid is not provided by the statute itself.
Accordingly, the consequence has to be determined with
reference to the nature of the provision, the purpose of its
enactment and the effect of the noncompliance. Rule 4 uses
the word ’shall’ even while requiring the signature of the
witness as it uses the word ’shall’ in respect of the other
requirements of the Rule. Ordinarily, the word ’shall’ used
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at several places in Rule 4 must be given the same meaning
at all places. However, it is also settled that this is not
an invariable rule and even though the word ’shall’ is
ordinarily mandatory but in the context or if the intention
is otherwise it may be construed to be merely directory.
198
In short, the construction ultimately depends on the provi-
sion itself keeping in view the intendment of the enactment
and the context in which the word ’shall’ has been used.
It would suffice to refer only to the decision in Ganesh
Prasad Sah Desari & Anr. v. Lakshmi Narayan Gupta, [1985] 3
S.C.R. 825. The word ’shall’ was used therein in connection
with the Court’s power to strike off the defence against
ejectment in a suit for eviction of tenant in case of de-
fault in payment of rent. This Court construed the word
’shall’ in that context as directory and not mandatory since
such a construction would advance the purpose of enactment
and prevent miscarriage of justice. In taking this view,
this Court was impressed by the fact that the default at-
tracting the drastic consequence of striking out defence may
be only formal or technical and unless the provision was
treated as directory, it would render the court powerless
even where striking out the defence may result in miscar-
riage of justice. We may refer to a passage from Crawford on
’Statutory Construction’ which was quoted with approval in
Govindlal Chagganlal Patel v. The Agricultural Produce
Market Committee, Godhra and Others, [1976] 1 S.C.R. 451 and
relied on in this decision. The quotation is as under:
"The question as to whether a statute is
mandatory or directory depends upon the intent
of the legislature and not upon the language
in which the intent is clothed. The meaning
and intention of the legislature must govern
and these are to be ascertained, not only from
the phraseology of the provision, but also
while considering its nature, its design and
the consequences which would follow from
construing it the one way or the other."
It cannot, therefore be doubted that the word ’shall’
used in the expression ’deposition shall be signed by wit-
ness’ in Rule 4 ibid has to be given the meaning keeping in
view the intention of the legislature, the purpose of the
enactment and the consequence which would follow from con-
struing it as mandatory or directory.
If the word ’shall’ used in this expression is construed
as mandatory, non-compliance of which nullifies the deposi-
tion, drastic consequence of miscarriage of justice would
ensue even where omission of the witness’ signature is by
inadvertence and correctness of the deposition as well as
its authenticity is undisputed. On the other hand, if the
word ’shall’ used in this expression is treated as directo-
ry, the court will have power to prevent miscarriage of
justice where the omission
199
does not cause any prejudice and the defect is only techni-
cal. The object of the provision being merely to obtain
acceptance of the witness to the correctness of the deposi-
tion, that object would be advanced by taking this view and
thereby empowering the court to avoid the drastic conse-
quence of nullifying the deposition where the correctness
and authenticity is undisputed. In a case where the correct-
ness has been disputed, it would be permissible for the
court to examine the effect of omission of the witness’
signature and to reject the deposition only if it does not
accept the correctness and authenticity thereof on the
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available material.
We do not find any cogent reason to take the view that
the word ’shall’ occurring in the expression ’deposition
shall be signed by the witness’ in Rule 4 ibid is mandatory
which requires strict compliance and mere omission of which
renders the deposition invalid and incapable of being read
as evidence. Various facets discussed above lead unerringly
to this conclusion.
In view of the above discussion, we are of the opinion
that the requirement of witness’ signature on the deposition
in Rule 4 ibid is directory even though the requirement of
the deposition being recorded, read over to him and correct-
ed wherever necessary is mandatory. Mere omission of the
witness’ signature on the deposition does not render the
deposition invalid when the correctness and authenticity
thereof is undisputed. In the present case, correctness and
authenticity of the deposition of the appellants’ witnesses
being undisputed and the technical objection of omission of
the witness’ signature on the deposition being raised as an
after-thought much after the learned single Judge had closed
the suit for delivery of judgment, the objection is untena-
ble. With respect, the High Court was in error in upholding
this objection and excluding the deposition of the appel-
lants’ witnesses examined on commission from the evidence in
the suit. The result of exclusion of the appellants’ oral
evidence on this untenable technical ground is that the suit
has been decreed treating respondents’ evidence to be unre-
butted. Exclusion of appellants’ entire oral evidence has
undoubtedly resulted in miscarriage of justice. The judgment
and decree passed by the learned single Judge is vitiated
for this reason alone.
We end on a melancholy note for the past with hope for
a better future. At a time when the minds of all of us are
rightly exercised by the proverbial laws delays and innova-
tions are being made and suggested to prevent the apprehend-
ed collapse of the existing system, the
200
course of this litigation leaves us sad. No degree of
thought can help unless translated into action. A more
pragmatic appreciation and interpretation of the rules of
procedure with due despatch would certainly have considera-
bly shortened the litigation so far. With both sides appear-
ing equally keen for a quick resolution of the dispute and
this being obviously welcome to the Court we see no reason
why the ultimate decision of the suit cannot now be reached
early. We leave the matter with the fervent hope that the
dispute will now be resolved expeditiously without any
avoidable delay. We contribute the first step in that direc-
tion by hastening to pronounce our judgment on conclusion of
the elaborate arguments on September 8, 1989, illuminating
the penumbral zone.
Consequently, these appeals are allowed. The order dated
10.8.1988 passed by the learned single Judge, the judgment
dated 23.3.1989 passed by the Division Bench of the High
Court affirming that order; and the judgment and decree
dated 6.4.1989 passed by the learned single Judge are all
set aside. The suit shah be decided afresh by the learned
single Judge treating the depositions of appellants’ wit-
nesses recorded on commission as evidence in the suit, after
hearing the arguments of parties on merits. The respondents
alone cannot be blamed for this situation and, therefore, we
direct the parties to bear their own costs.
R.S.S. Appeals al-
lowed.
?201
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