JUDGMENT

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, applicable to the Original Side, a defect fatal to the reception 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 commission resulting in the suit being decreed in plaintiffs favour on the unrebutted testimony of the plaintiffs. Correctness of this view is assailed before us.

2. 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; depositions of the defendants witnesses were recorded on commission 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 defendants witnesses examined on commission on the ground of absence of witness signature on the deposition; the objection 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.

3. Even at the risk of this description being labelled as over simplification, 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.

4. 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.

5. 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 entertainment, 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 accou