AVADH BEHARI ROHATGI

( 1 ) THIS is an appeal against the order of the Senior Sub-Judge Delhi dated October 29, 1969.

( 2 ) THE facts are these. The respondent instituted a suit against the Delhi Development Authority (the Authority) for permanent ini unction. His suit was dismissed. He filed an appeal against the decree of the trial court. The appeal was heard by the Senior Sub-Judge When the appeal was being argued the learned Senior Sub-Judge noticed that the trial Judge had not signed the depositions of two witnesses who were examined by the Authority in support of their case.

( 3 ) THE Authority examined in all three witnesses on March 18, 1968. One was Attar Chand. The second was R. G. Bhatnagar. The third was Kanihyee Ram. All of them were examined on one day. All the three witnesses signed their depositions. These were read over to them. The trial Judge signed at the end of the third deposition. He did not sign at the end of the first and the second depositions. It just escaped his notice. The seal of the court is there. It seems that inadvertently the -judge forgot to put his signatures above the seal.

( 4 ) THE first appellate court noticed the omission. It thought that it was mandatory for the judge to sign each deposition. It relied on rule 5 of Order 18. That rule provides:

"r. 5. In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing, in the language of the Court, by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative, and, when completed, shall be read over in the presence of the Judge and of the witness, and the Judge, shall, if necessary, correct the same, and shall sign it. "

( 5 ) THIS rule no doubt requires that the deposition of a witness has to be signed by the judge. This rule must be followed This also is not in doubt. It is a salutary rule. It ensures the authenticity of court record.

( 6 ) THE appellant Judge thought that this rule was imperative and it was incumbent on the trial Judge to sign the deposition of the two witnesses Attar Chand and R. G. Bhatnagar. Since he did not do this the Senior Sub-Judge set aside the decree of the trial Judge and remanded the case to him for recording the statements of these two witnesses over again "in accordance with law", as he said. The appeal was allowed. The trial Judge was directed to summon the two witnesses again for recording their statements anew and to decide the case afresh. The Authority now appeals to this Court.

( 7 ) THE contention of the counsel for the Authority is that this remand was entirely uncalled for and that if the trial Judge did not sign the depositions of the two witnesses it did not matter much since it was at best an irregularity. He said that the appeal should have been heard and decided on merits.

( 8 ) NO one raised this objection before the appellate court. The appellate Judge himself took up the objection and thought that the procedure adopted was illegal. It was not the case of the appellant that these witnesses were not produced or that they did not make their statement in court. In fact the depositions are signed by the witnesses.

( 9 ) IN my opinion the learned Senior Sub-Judge was not right in setting aside the decree on this ground. The mere fact that the witnesses depositions were not signed by the Judge will not vitiate the trial. At best it was an irregularity under Section 99. Code of Civil Procedure. It did not afford a ground for retrial since there is no doubt whatsoever that the depositions were recorded in the presence and under the personal direction and superintendence of the Judge. No one said that the depositions were wrongly recorded or that the witnesses did not appear in the court below: See Alam Singh v. Seth Gopal Das, AIR 1923 Nag 7 (1) and Channoo Mahto v. Jang Bahadur Singh, AIR 1957 Pat 293.

( 10 ) THE omission to sign the depositions was a defect or

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