VENKATESA IYENGAR Vs. KAMALAMMAL

JUDGEMENT

(1.) In this case we intimated our opinion at the hearing that the conclusion arrived at by the lower appellate court regarding the plaintiff s title was binding on us, the question being purely one of fact. But the validity of that court s judgment was also attacked on the ground that the District Judge acted without jurisdiction in delivering his judgment an the 29th December 1909 when the court was closed for the Christmas holidays.

(2.) We are of opinion that the delivery of judgment on a holiday (we are taking it that the 29th December 1909 had been notified as a general holiday) is not illegal. It is not contended that there is any express provision of law prohibiting the performance of any judicial work on a holiday or laying down that a judgment delivered on a holiday shall be void. Section 30 of the Madras Courts Act III of 1873 enacts: "The High Court may permit the civil courts under its control to adjourn from time to time for periods not exceeding in the aggregate two months in each year." The section merely gives permission to adjourn. There is no prohibition of the doing of all work of a judicial character during the time when the court is adjourned. Under whatever authority the court may have been adjourned during the Christmas holidays, the appellant has not shown that the Judge was prohibited from doing any particular kind of work during the period. If any party is injuriously affected by a court doing any judicial work on a day when the court is closed he will, no doubt, be entitled to redress for the grievance. But it is not contended in this case that the appellant has been prejudiced by the delivery of judgment on the 29th December. Reliance has been placed on Order xx, Rule 1, of the Civil Procedure Code which provides that the court shall pronounce judgment in open court either at once or on some futuie day of which due notice shall be given to the parties or the pleaders. The expression in open court refers to the place and manner of the pronouncement of judgment. The provision with regard to the time of pronouncement is merely that it shall be at once or on some future day of which notice shall be given. Holidays are not excepted provided notice be given. With regard to the place where the judgment is to be pronounced it has been held that the pronouncing of the judgment out of court is only an irregularity and will not be a good ground of appeal. See Sree Sree Nilmony Singh Deo v. Bhobany Churn Panda (1864) March 327. In other words the section is only directory in its nature and does not absolutely prohibit as illegal the pronouncement of judgment otherwise than in accordance with its provisions. Our attention has not been drawn to any authority in favour of the appellant s contention. In Black on Judgments, Vol. 1, Section 182, the learned author says: "In regard to other (than Sundays) legal holidays the general rule is that unless the statutes recognising or creating them expressly prohibit the exercise of judicial functions upon them the courts may validly render judgments and transact their other usual business. And even if they are declared non-judicial holidays, this will not hinder the performance of ministerial acts. Thus the statute in Georgia declaring the 4th of July a holiday does not prohibit the courts from sitting on that day, or make a judgment rendered on that day void except when that day falls on Sunday. So it is held that a judgment rendered by a Justice of the Peace on Thanks-giving Day is not void." The same learned author in his article on Judgments in the "American Cyclopaedia of Law and Procedure," Vol.23, p.625, observes: " Unless authorised by a statute or by the consent or agreement of the parties, a valid judgment cannot be rendered in vacation, this being a judicial act which can be performed only when the court is in session." This passage is not inconsistent with the statement of the author in his book on Judgments, for here he is referring to cases where under statute the court is bound to perform its judicial acts during term time and he points out in a footnote that under a statute authorising the courts to take cases under adjournment after trial or hearing at the term, it is held that the judgment may be rendered in vacation. In Wells on Jurisdiction, p. 126, the reason of the American rule that a judgment rendered during vacation is void is pointed out. It is the result of express statutes that the jurisdiction of the court should be exercised during term time. There is no English authority in support of the appellant s position. In England no doubt Sunday is a dies non-under the common law and all judicial work on that day is prohibited by statute. See Broom s Commantaries, page 15. The Sunday Observances Act of 1676, also provided that no writ, process, warrant, order, judgment or decree shall be served or executed upon the Lord s Day. The English rule with regard to Sundays, it has been held, has no application to India-see Param Shook Doss v. Rasheed Ood Dowlah Bahadur (1874) 7 M.H.C. 285. In Bennet v. Potter 2. C. and J. 622. Lord Lyndhurst held that there was no objection to the doing of judicial work on other holidays. In that case the time for pleading expired on a holiday, at 6 o clock in the evening, which day the plaintiff opened the offices and signed judgment for warrant of a plea. At 8 o clock the plea was delivered. Application was made to set aside the judgment for irregularity, contending that the plaintiff had no right to open the office for the purpose of signing judgment. But the learned Lord observed : "The office may be opened at any . time ; it is closed on a holiday for the benefit of the officers and they may attend if they think fit so to do." In Gobind Kumar Choudhry v. Hara Gopal Nag (1869) 11 W.R. 537, and Ununto Ram Chaterjee v. Protab Chunder Shiromonee (1871) 16 W.R. 230. it was held that the registration of a plaint on a Sunday or other holiday was not illegal. In Bisram Mahto v. Saheb-un-nissa (1880) I.L.R. 3 A. 333 it was held that a sale of property in execution on a close holiday was not illegal-In Ram Das Chukkerbutt v. The Official Liquidator, Cotton Ginning Company, Limited, Cawnpore (1887) I.L.R. 9 A. 366 the question was considered at length by Sir John Edge C.J. and Oldfield J. There, objection was raised to proceedings in the winding up of a company and settling the list of contributories being held during the long vacation but it was overruled. The learned Judges say with reference to Section 17 of the Bengal Civil Courts Act: "This section, it appears to us, was framed in the interest of the judges and officials of the courts and probably also in that of the Hindu and Mahammadan pleaders, suitors and witnesses whose religious observances might interfere with their attendance in court on particular days. The cases, which have been decided upon the construction of Section 6 of the 29 Car. 11 Cap. 7 commonly known as the Lord s Day Act do not in our opinion afford any assistance to us in the present case but the difference between the wording of that section and the section in question in this case is striking. That section provides that no person or persons upon the lord s Day shall serve or execute or cause to be served or executed any writ, process, warrant, order, judgment or decree (except in cases of treason, felony or breach of the peace) and by that section it is specifically enacted that the service of any such writ, process, warrant, order, judgment, or decree shall be void to all intents and purposes whatsoever. In the section under consideration there are no such specific words as those above quoted. It had been intended by the legislature that a judge should have no jurisdiction or power to enter upon a judicial proceeding or inquiry on a close holiday and that if the judge did on a close holiday hold a judicial inquiry the proceedings should be void it would have been easy for the legislature to have expressed such intention by the use of apt words such as we find in Section 6 of the Lord s Day Act. " By the rules of Hilary term 6 William IV it was ordered that certain days shall be observed or kept as holidays in the several offices belonging to the said court." With reference to the days mentioned in the rules we find it stated in note I at p. 50 of PETERDORFF s Abridgement of Common and Statute, Law Vol. IV, 2nd Edition: These are not dies non but periods of vacation for the courts and offices. The proceedings are not suspended". And again, in the same note, * * * They are closed on a holiday for the benefit of the officers, and if they think fit to attend they may and if open, judgment may be signed." We are of opinion that on such a close holiday as that in question a judge might properly decline to proceed with any inquiry, trial, or other matter on the civil side of his court and any party to any judicial proceeding, if present, could successfully object to such inquiry being proceeded with, and in the event of any such inquiry having been proceeded with in his absence and without his consent will be entitled to have the proceedings set aside as irregular, probably in any event and certainly if his interests had been prejudiced by such irregularity."

(3.) It will be observed in the case of an inquiry all parties would almost necessarily be prejudiced if it goes on in his absence but not so in the case of delivery of a judgment. The learned Judges of the Allahabad Court go on to point out that at best the conduct of the judicial proceedings on a holiday can amount only to an irregularity. Reference has been made at the bar to another case, Sheoram Tiwari v. Thakur Prasad (1908) I.L.R. 30 A. 136 where it was held that the decision of a case on a Sunday would at best be only an irregularity and the court contented to agree with the decision in Param Shook Doss v. Rasheed Ood Dowlah Bahadur (1874) 7 M.H.C. 285 that the Lord s Day Act is not applicable to India at all. Section 15 of Act XII of 1887 (the Bengal, North West Provinces and Assam Civil Courts Act) expressly provides that a judicial act done on a close holiday is not invalid by reason only of its having been done on that day. This is only a legislative recognition of what must be held to be the law on general principles.