KHAJA BEGUM Vs. ABDUL HAMEED

JUDGEMENT

(1.) This revision petition is against an order of the Second Additional Chief Judge, City Civil Court, in which he directed witnesses D.Ws. 1 to 4 to be summoned afresh and their evidence recorded, inasmuch as their previous depositions were inadvertently not signed by the Judge who recorded them before he was reverted as Subordinate Judge for want of vacancy. It may be stated that arguments in the case had been completed and several months thereafter, the respondent's advocate appears to have filed an application to say that as parts of the depositions of D.Ws. 1 to 4 were not signed, they were inadmissible in evidence. This argument seems to have been found favour with the learned Second Additional Chief Judge. We may state that the evidence of D.Ws. 1 to 3 was typewritten while D.W. 4's evidence was taken down completely by hand. It may also be stated that the examination-in-Chief recorded on the first day of D.W. 1 was alone signed and the rest of the deposition was not signed. Each one of D.Ws. 1 to 4 signed their respective depositions and there seems to be no controversy or objection raised by either the witnesses or the parties or the Advocates that these depositions have not been recorded by the Judge concerned. The only objection is a technical one raised on the wording of Order 18, rule 5, Civil Procedure Code, which is as follows :-

(2.) All the requirements prescribed in that rule have, it is stated, been complied with except the signing of the depositions. Mr. Kondapi contends that the mere signing of it is a formality and is an irregularity which does not vitiate the proceedings. In support of this contention, he has cited a commentary to Order 37, rule 16 of the Rules of the Supreme Court of England, in the Annual Practice, 1965, that the omission of the examiner's signature in a deposition is not such an irregularity as to prevent the Court from directing that to be filed upon terms, and where an examiner died without signing the depositions, they were allowed to be received in evidence without such signature. At any rate, it does not prevent the Court from summoning the person concerned and asking him to sign the same.

(3.) While this is so, in our view an unsigned deposition will not conform to the provisions of section 80 of the Evidence Act, which clearly raises a presumption that a document produced as a record of evidence purported to be signed by a Jugde, Magistrate or by any such officer as has been stated there, was signed by him, only when it is signed. If a deposition is not signed, no such presumption can arise under section 80. The question here is not whether the presumption under section 80 has to be raised, but whether the Court could act upon depositions read out to the witnesses and signed by them, as depositions in the case, or whether their evidence has to be taken afresh. On the facts of this case we do not think that there would be any need to summon D.Ws. 1 to 4 and re-examine them. The record of their depositions has not been denied by them. On the other hand, they hare signed the depositions. Nor do the respondents aver that D.Ws. 1 to 4 did not depose as recorded in those depositions. In fact, both parties to the suit as well as the learned Judge proceeded on the ground that the previous judge did record the evidence of these witnesses. In these circumstances, the inadvertant omission by the judge to sign does not make the depositions non est or invalid. It is stated by Mr. Kondapi that the judge concerned has just retired, but he is in Hyderabad. If ao, he can be asked to sign these depositions even now and supply the omission.