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Introduction
The judgment forms the concluding part of the civil suit and it
determines the rights and liabilities of the parties. Basically
judgment is followed by a decree which is its operating part.
Historically, there was the distinction between judgment and
decree. Common Law adheres to the judgment while the Equity Court
of Law deals with the decree. But later on Judicature Act was
passed in U.K. which merged the distinction between judgment and
decree. In U.S. also, distinction between judgment and decree has
lost its relevance but in India, the distinction between judgment
and decree has still maintain its position from the initiation of
the old Code of Civil Procedure, 1859. The present Code of Civil
Procedure, 1908 also recognizes this distinction.
In this legal world, judgment
given by any court followed by its decree play an important role
to define the scope and limitations of any individual. Apart from
the statutory rules and regulations, one also has to adhere to the
decision given by the court to keep oneself away from the clutches
of the court room drama.
Daily various judgments are
pronounced and decree following it took place in the courts of our
country. Various civil cases are also being disposed off each
working day. These judgments are important as they act as
precedents for future declarations, so it is very necessary that
they stick to the judicial reasoning without bringing their own
discretionary power blindly. After so many judgments and backing
it up with the decree also, certain issues do arises which tends
to confuse us. Civil Procedure Code, 1908 has been drafted very
nicely but then also certain loopholes are there providing leeway
for the creeping of unnecessary elements. As no law seems to
perfect for us but then also effort should be made to take them
somewhere close to the shell of perfect ness.
Decree is the operating part
of the judgment and it has to be in harmony with the judgment.
Section 33 of the Civil Procedure Code, 1908 says decree is
followed by the judgment. Under the Civil Procedure Code, 1908
(hereinafter referred as C.P.C.) judgment and decree has been
defined in the section 2 of the C.P.C. and provisions related to
it are given in the Order 20 of this Act. Certain specific issues
arise while dealing with this Order such as the time frame for the
pronouncement of the judgment; power to amend the decree; reasons
for each decision etc.
Pronouncement of Judgment-
The D’ Day
Crystallizing judge’s intention into a formal shape in an open
court leads the judgment to its final destination. Rule 1 of Order
20 deals with the pronouncement of judgment. It talks of specific
time frame for the declaration of the judgment in the open court.
But there was no time limit prescribed for the pronouncement of
judgment prior to the amendment in 1976 which led to a persistent
demand all over India for the imposition of a reasonable time
frame for the declaration of judgment after the hearing of the
case gets over . In this regard, observation of the Supreme Court
in R.C. Sharma v. Union of India is worth noting;
The Civil Procedure Code does not provide a time limit for the
period between the hearing of arguments and the delivery of a
judgment. Nevertheless, we think that an unreasonable delay
between hearing of arguments and delivery of a judgment, unless
explained by exceptional or extraordinary circumstances, is highly
undesirable even when written arguments are submitted. It is not
unlikely that some points which the litigant considers important
may have escaped notice. But, what is more important is the
litigants must have complete confidence in the results of
litigation. This confidence tends to be shaken if there is
excessive delay between hearing of arguments and delivery of
judgments. Justice, as we have often observed, must not only be
done but must manifestly appear to be done.
Accordingly amendment was
introduced providing a time limit for the declaration of the
judgment. If it is not possible to pronounce the judgment at once,
it should be declared within thirty days from the day of
conclusion of the hearing and in case some extreme situation
arises then the provision is also there to extend this declaration
of pronouncement till the sixtieth day from the conclusion of
hearing. Thus judge have a discretionary power for the
pronouncement of judgment for these sixty days but after that
declaration becomes mandatory on the part of the judge.
But what happens if the
judgment is not pronounced within sixty days also. Supreme Court
has strongly deprecated the action of the High Court in the case
of Anil
Rai v. State of Bihar
, where
the judgment was pronounced after two years. Remarks of the honourable court in this case are just next to the truth and are
worth noting down:
# The Constitution did not provide anything when High Court
judges do not pronounce judgments after lapse of several months
presumably because the architects of the Constitution believed
that no High Court judge would cause long and distressing delays.
Such expectation of the makers of the Constitution remained
faultless during the early period of the post Constitution years.
But unfortunately, the later years have shown slackness on the
part of a few judges of the superior Courts in India with the
result that the records remain consigned to hibernation. Judges
themselves normally forget the details of the facts and niceties
of the legal points advanced. Sometimes the interval is so long
that the judges forget even the fact that such a case is pending
with them expecting judicial verdict.
# This confidence tends to
be shaken if there is excessive delay between hearing of arguments
and delivery of judgments. A long delay in delivering the judgment
gives rise to unnecessary speculation in the minds of parties to a
case.
# Excessive delay is not
only against the provisions of law but in fact infringes the right
of personal liberty guaranteed by Article 21 of the Constitution
of India. Any procedure or course of action which does not ensure
a reasonable quick adjudication has been termed to be unjust.
# Justice should not only
be done but should also appear to have been done. Similarly
whereas justice delayed is justice denied, justice withheld is
even worst than that.
# In a country like ours
where people consider the judges only second to God, efforts be
made to strengthen that belief of the common man. Delay in
disposal of the cases facilitates the people to raise eye-brows,
some time genuinely which, if not checked, may shake the
confidence of the people in the judicial system.
Thus declaration of judgment
within reasonable time is highly inevitable. In order to raise the
standard of the court in this regard certain guidelines has also
been given in the Anil Rai’s case. These guidelines are given
below:
# The Chief Justices of the High Courts may issue appropriate
directions to the Registry that in a case where the judgment is
reserved and is pronounced later, the judgment and date of
pronouncing it be separately mentioned by the Court officer
concerned.
# The Chief Justices
of the High Courts should direct the Court Officers/Readers of the
various Benches in the High Courts to furnish every month the list
of cases in the matters where the judgments reserved are not
pronounced within the period of that month.
# On noticing that
after conclusion of the arguments the judgment is not pronounced
within a period of two months, the concerned Chief Justice shall
draw the attention of the Bench concerned to the pending matter.
# Where a judgment is
not pronounced within three months, from the date of reserving it,
any of the parties in the case is permitted to file an application
in the High Court with prayer for early judgment. Such
application, as and when filed, shall be listed before the Bench
concerned within two days excluding the intervening holidays.
# If the judgment,
for any reason, is not pronounced within a period of six months,
any of the parties of the said list shall be entitled to move an
application before the Chief Justice of the High Court with a
prayer to withdraw the said case and to make it over to any other
bench for fresh arguments. It is open to the Chief Justice to
grant the said prayer or to pass any other order as he deems fit
in the circumstances.
Alteration in Judgment
Before the pronouncement of judgment, every right is with the
judge to change his mind but the dilemma arises in the situation
when judgment has been declared in the open court and after that
something strikes to the judge which prompts him to alter the
judgment; so the question arises will the changed mind frame
should be given prevalence over the old decision or old should be
preserved from the new one? Rule 3 of Order 20 of C.P.C. provides
that a judgment once signed cannot be amended or altered
afterwards except to correct clerical or arithmetical mistakes or
errors due to accidental slips or omissions as mentioned in
section 152 of the C.P.C. or on review.
According to Allahabad High
Court in Sangam Lal v. Rent Control and Eviction Officer
, a
judgment dictated in an open court can be changed, even
completely, before it is signed provided notice is given to all
parties concerned and they are heard before the change is made.
Reasoning given for this judgment was that they do not want to
construe the rules too technically as they are indeed rules to
further the ends of justice; so they should not be viewed too
narrowly. This view of the Allahabad High Court was also accepted
by the Delhi High Court in the case of Ram Ralaya v. The Official
Receiver . But the Gujarat High Court disagreed with this view and
was of the opinion that once a judgment has been pronounced or
delivered in an open court, though formal corrections may be made
before the judge signs it, the core of it cannot be altered or
changed so as to modify the order or amend or even set it at
naught . Basically judgment is the final decision of the court
intimated to the parties and to the world at the large in an open
court. This declaration is the intention of the mindset of the
court after going through the tedious process of the wholesome
hearing. This intention of the court is the final operative
decision of the court which constitutes the decision. Regarding
this, the Gujarat High Court in the case of Ishwarbhai mentions
some worthwhile remarks. It says that, as
soon as the judgment is delivered, that becomes the operative
pronouncement of the Court. The law then provides for the manner
in which it is to be authenticated and made certain. The rules
regarding this differ but they do not form the essence of the
matter and if there is any irregularity in carrying them out it is
curable. Thus, if a judgment happens not to be signed and is
inadvertently consequent on acted on and executed, the proceedings
consequent on it would be valid because the judgment, if it can be
shown to have been validly delivered, would stand good despite
defects in the mode of this subsequent authentication.
The court can do some formal
corrections but the core of it cannot be altered or changed so as
to modify the order or amend or even set at naught the same. That
can be done only by the Court in appeal or in revision. Even with
the consent or agreement of the parties also, a judgment cannot be
altered or amended.
The researcher is also in line
with the decision of the Gujarat High Court. Allowing alteration
before signing of judgment but after declaration in the open court
raises doubt regarding the sanctity of the judgment.
Reasoning for Decision
Before starting anything, it is very necessary to lay down the
ground; before judging also something, it is quite crucial to have
full facts before it and then take out the relevant portions to
make a concise statement of the case. Thus, a judgment should
inaugurate with the facts of the case in brief. Rule 4(2) of Order
20 of C.P.C. states that apart from the judgment of Small Cause
Courts, judgments of all other Courts shall contain a concise
statement of the case; the points for determination; the decision
thereon; and the reasons for such decision.
Thus after laying down the
facts, facts in issue should be settled by bringing out the claims
which are disputed between both the parties; thus issues should be
framed. Framing of issues should be done via Rule 1 of Order 14 of
C.P.C.
Now after issues are framed,
points for determination come into picture and for determining
those points, need for extra force is required. It is not possible
to cruise through the disputed facts in the absence of any
peaceful land. In order to satisfactorily reach on a judicial
determination of a disputed claim where substantial questions of
law or fact arise, it has to be supported by the most cogent
reasons; a mere order deciding the matter in dispute without any
reasoning is no judgment at all Power of reasoning is needed to
back up the decision on each issue given by the court under Rule 5
of Order 20 of this Code.
Rule 2 of Order 14 of C.P.C. provides judgment to be given on all
the issues that has arisen in the given case. Rule 1 of the same
Order provides for framing of issues with the object of keeping
the various points arising for decision separate and distinct and
to avoid the confusion later on.
As per Rule 5 of Order 20 of
C.P.C. court has to state its decision with reasons on each issue
separately unless the finding upon any one or more of the issues
is sufficient for the decision of the suit. But Rule 2 of Order 14
of C.P.C. requires that a court should decide on all issues even
if the case can be decided by settling few issues only except
where a pure question of law relating to jurisdiction or bar to
suit is involved. Further with the addition of an explanation to
Rule 22 of Order 41 of C.P.C. which empowers a respondent in
appeal to file cross objection in respect of findings against him
in a decree notwithstanding that by reason of the decision of the
court on any other finding which is sufficient for the decision of
the suit the decree is wholly or in part in favour of the
respondent, the intention of the legislature is clear that the
court will now have to decide and state its findings on all the
issues even if it considers that finding for one or only few
issues is sufficient for the disposal of the case. Thus in order
to have a harmonious construction of all these rules, it would be
judicial to amend the Rule 5 of Order 20 of C.P.C. by omission of
the words unless the finding upon any one or more of the issues
is sufficient for the decision of the suit at the end . Moreover,
principle of res-judicata operates after the determination of the
case; so in case if judgment is not given by deciding all the
issues then problem can erupt in future whether the rule of
res-judicata will operate or not for that particular issue.
There is ambiguity whether
recording of reasons for each issue is one of the principle of
natural justice or not but it is inevitable for providing
safeguard against possible injustice and arbitrariness and
provides protection to the person adversely affected
The court must decide all the
issues of fact, which arise between the parties as if the
appellate Court takes a different view; the parties are saved from
further harassment . Court has to refer in its judgment all the
submissions made before it and have to deal with it even if the
court is of the opinion that there is no substance in any of the
submission; in those extreme situations the Court may just refer
to the same and say that there is no substance.
In the absence of discussion
in detail of the evidence by the parties, it cannot be said that
its judgment is no judgment in the eyes of law. All the court has
to do is to frame proper issues and to keep in mind all the points
involved in the case and has discussed all those points, though in
brief; thus giving full respect to the judgment.
Problem arises where there is
absolutely no evidence on the record and the plaintiff is wholly
unable to proceed with the case; in that situation an order simply
dismissing the suit without a finding on every issue is not bad.
It would be a sheer formality to write a judgment on each issue in
these scenarios.
Comparison Between Judgment
& Decree
Judgment is defined in section 2(9) of the C.P.C. which says
judgment is the statement given by the Judge on the grounds of a
decree or order. Judgment refers to what the judge writes
regarding all the issues in the matter and the decision on each of
the issues. Hence every judgment consists of facts, evidence,
findings etc. and the conclusion of the court.
The term decree is defined in section 2(2) of the C.P.C. which
reads as follows:
decree means the formal expression of an adjudication which, so
far as regards the Court expressing it, conclusively determines
the rights of the parties with regard to all or any of the matters
in controversy in the suit and may be either preliminary or final.
It shall be deemed to include the rejection of a plaint and the
determination of any question within section 144, but shall not
include-
a) any adjudication from which
an appeal lies as an appeal from an order, or
b) any order of dismissal for default.
Decree is the conclusion
reached by the judge after hearing both parties on merits and
expressing the same in writing. Basically decree is the subset in
the set of judgment.
The decree forms the last part
of the judgment and is extracted from the entire judgment by the
decree clerk who contains the basic details and the result of the
case. The date of the decree is the date of judgment for the
purpose of execution though it can be signed anytime later even by
a successor judge though it should be given within 15 days. Even a
set-off/ counter claim is in the same decree.
Judgments by way of an
amendment in 1976 must contain the exact decree and words like
“decree what is prayed for” cannot be used. Thus every judgment
contains the decree, amongst other things and the decree is
usually the last portion of the judgment and the decree
independently is without reasoning.
There is no need of a
statement in a decree though it is necessary in a judgment.
Likewise, it is not necessary that there should be a formal
expression of the order in the judgment, though it is desirable to
do so. A judgment is a stage prior to the passing of a decree or
an order, and after the pronouncement of the judgment, way for the
decree has to be left wide open .
Decree has to be in line with the judgment and it should present
the correct interpretation of the judgment. But in case, scenario
arises where there appears to be a conflict between the judgment
and the decree, then the decree must be reasonably construed and
if on such construction both of them able to remain together, then
adhere to that decree. But if it gets difficult for the decree to
stay together with the judgment, then it must be amended under
section 151 of the C.P.C. and if there is any clerical mistakes in
the decree, then section 152 of the C.P.C. will take out the
decree safe from the clutch of being declared nullity.
*********
Endnotes-
Justice C.K. Thakker, Civil Procedure (5th edn., Lucknow: Eastern
Book Company, 2005) at 273.
AIR 1976 SC 2037.
AIR 2001 SC 3173.
AIR 1966 All 221.
AIR 1976 Del. 172.
Ishwarbhai v. Vadilal, AIR 1968 Guj. 289.
Subramania v. Corera, AIR 1925 Madras 457.
Swaranlata v. Harendra, AIR 1969 SC 1167.
Sudipto Sarkar & VR Manohar, Sarkar’s The Law of Civil Procedure
Vol. 1 (10th edn., New Delhi: Wadhwa & Company Nagpur, 2002) at
1319.
Supra note 1 at 275.
Ram Ranbijaya Prasad Singh v. Sukar Ahir, AIR 1947 Pat. 334.
Balkrishna Chatrabhuj Thacker v. Devabai, AIR 1985 Guj. 133.
Jokhan v. The Joint Director of Consolidation, Allahabad, AIR 1980
All 215.
Pitamber Prasad v. Sohan Lal, AIR 1957 All 107.
Supra note 1 at 21.
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Judgment
v. Decree
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author can be reached at: AnandSrivastava@legalserviceindia.com /
