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PETITIONER: SWARAN LATA GHOSH

       Vs.

RESPONDENT: H.   K. BANERJEE AND ANR.

DATE OF JUDGMENT: 12/03/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GROVER, A.N.

CITATION:  1969 AIR 1167            1969 SCR  (3) 976  1969 SCC  (1) 709

ACT: Practice  and Procedure--Chartered High  Court-Judgment-Duty to give reasons.

HEADNOTE: After  the  death  of the appellant’s  husband  who  was  an attorney-at  law, the first respondent filed a suit  on  the original  side  of  the  Calcutta  High  Court  against  the appellant and her minor son, for a decree for Rs. 15,000 and interest  claiming  that the amount was deposited  with  the appellant’s husband for the purpose of investing it and that the  appellant’s husband agreed to pay interest  at  certain rates.  The appellant filed a written statement denying  the claim  in  its  entirety.   The  first  respondent  produced extracts of bank accounts to show that the money had  passed but  there was no documentary evidence supporting  the  case relating  to the agreement between him and  the  appellant’s husband.   To  prove his case and the terms of  the  deposit which  according to him were orally agreed upon,  the  first respondent examined himself and three other witnesses.   The appellant  appeared by counsel and the cross-examination  on behalf  of the appellant was elaborate and showed  that  the claim  was  contested  fully and that the  defence  was  not confined  to the extent of the appellant’s  liability.   The trial Judge gave a personal decree against the appellant but did not frame any issues or record any reasons in support of his conclusion.  In appeal under the Letters Patent,  though several grounds on the merits were raised in the  memorandum of appeal the appellate Bench also did not give any  reasons but merely modified the decree by limiting it to the  estate inherited by the appellant. In appeal to this Court, HELD  : Under O. X-LIX, r. 3 (5), Civil Procedure Code,  rr. 1  to 8 of O. XX do not apply to a Chartered High  Court  in the  exercise  of  its ordinary  or  extraordinary  original jurisdiction,  and hence, a Judge of a Chartered High  Court is  not  obliged  to record a  judgment  giving  reasons  in accordance with the provisions of O. XX, rr. 4(2) and 5. But the   High  Court  must  exercise  judicial  discretion   in exercising that power, because, the recording of reasons  is intended to ensure that the decision was not the result of a

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whim  or  fancy  but  of  a  judicial  approach,  that   the adjudication was according to law and procedure  established by law, and that when the judgment is subject to appeal, the Appellate  Court may have adequate material on which it  may determine  whether the facts were properly  ascertained  and the  law  has  been correctly applied resulting  in  a  just decision.   The  privilege  of  not  recording  ’reasons  is intended to apply where the action is undefended, where  the parties  are  not at issue on any substantial  matter  in  a summary  trial  where  leave to defend is  not  granted,  in making  interlocutory  Orders  or  in  disposing  of  formal proceedings. [979 F-H; 980 F-H] In the present case, since there was a contest on merits, in the absence of any documentary evidence in the  hand-writing of  the appellants husband, the burden of proving his  claim lay on the first Respondent, and the oral testimony  adduced by him had to be examined in the context 977 of  :  (a)  absence  of  Correspondence  relating  to    the transactions   between   the  first   respondent   and   the appellant’s  husband;  (b) absence of books  of  account  in support  of  the transaction; (c) improbability  of  such  a transaction between an attorney and his client; (d)  absence of  previous business or professional  relationship  between the first respondent and appellant’s husband; (e) absence of vouchers  supporting  the alleged payment of  interest,  and similar weighty circumstances.  In reaching his  conclusion, the  trial  Judge  had to  consider  the  probabilities  and circumstances of the case and hence, there should have  been a  full record of the reasons for his  conclusion.[980  A-E; 981 D-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 662 of 1966. Appeal  by Special leave from the judgment and  order  dated August  4,  1964-of the Calcutta High Court in  Appeal  from Original Order No. 99 of 1963. D.   N. Mukherjee, for the appellant. S.   C. Majumdar, for the respondents. The Judgment of the Court was delivered by Shah,  J. Birendra Krishna Ghosh-hereinafter called  "Ghosh- was  practising as an attorney-at-law in the High  Court  of Calcutta.  He died in August 1950.  H. K. Banerjee the first respondent  herein-commenced in 1951 an action in  the  High Court  of Calcutta on the original side against Swaran  Lata and Arun Kumar-widow and minor son respectively of Ghosh-for a decree for Rs. 15,000 claiming that it was the balance  of "capital  deposits"  due  to him from Ghosh  and  Rs.  1,535 interest  due  thereon.  The plaintiff claimed that  he  had deposited with Ghosh Rs. 6,000 on December 10, 1946 for  the "specific  purpose of investing the amount" and  the  latter agreed  to pay interest at the rate of 6% per annum  and  to repay the same or any portion thereof when demanded; that on or  about  February 17, 1948, he had deposited  Rs.  10,000 with Ghosh also for "the specific purpose of investing" that sum,  and the latter had agreed to pay interest at the  rate of  7% per annum and to repay the same or part thereof  when demanded;  that under the agreement Ghosh paid diverse  sums of  money as interest, and on July 3, 1947 Ghosh repaid  Rs. 1,000  out of Rs. 6,000 deposited; and that the  balance  of Rs. 15,000 and Rs. 1,535 interest due thereon were repayable by the defendants to the plaintiff. Swaran  Lata filed a written statement denying the claim  of

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the  plaintiff.  She denied that the sums of Rs.  6,000  and Rs.  10,000 were entrusted to or deposited with her  husband as  alleged  by the plaintiff; she denied that  her  husband repaid  any  amounts  towards interest or  part  payment  of principal; and she 978 submitted  that the suit was in any event barred by the  law of limitation. The trial of the suit commenced before Law, J., on July  12, 1962.   In  support of the plaintiff’s case  four  witnesses were examined.  The plaintiff tendered in evidence  extracts from certain Bank accounts and correspondence.  He  produced no  documentary  evidence in support of his  case  that  any amount  was  deposited with Ghosh, on terms set out  in  the plaint.   Apparently  he  relied upon  the  entries  in  the extracts from the statements of account with the United Bank of India Ltd., the Imperial Bank of India, the Hooghly  Bank Ltd.  and correspondence between him and Swaran  Lata.   The learned  Judge  by order dated August 17, 1962,  passed  the following order : "There  will  be a decree for Rs. 15,000  with  interest  on judgment  on  Rs.  15,000 at 6% per  annum  and  costs.   No interim interest allowed." Pursuant to that order a decree was drawn up. Against  the decree Swaran Lata appealed to the  High  Court under  cl.  15  of the Letters Patent,  and  raised  several grounds  in  the memo of appeal on the merits.   Th.-.  High Court disposed of the appeal by a short judgment observing :               "We  think  that  the  plaintiff  sufficiently               proved  the case made in the plaint.   On  the               10th  December, 1946 the  plaintiff  entrusted               and  deposited with Birendra Krishna  Ghosh  a               sum of Rs. 6,000 for the express and  specific               purpose of investing the sum to yield interest               at  the  rate  of  6%  per  annum.   He   also               entrusted and deposited with Birendra  Krishna               Ghose  on the 17th February 1948 a sum of  Rs.               10,000  for ’the express and specific  purpose               of investing the sum to yield interest at  the               rate of 7% per annum. " The Court observed that the amounts paid to Ghosh were depo- sits, within the meaning of Art. 60 of the Indian Limitation Act,  1908, and since interest was paid in respect  of  both the  deposits within three years of the institution  of  the suit,  no question of limitation arose, and the Trial  Court had  "rightly  decreed the suit." The High  Court,  however, modified  the decree passed by the Trial Court and  declared that  the liability of the defendants was not  personal  and was  limited  only to "the assets and properties"  of  Ghosh received by them.  With special leave, Swaran Lata Ghosh has appealed to this Court. The  defendants  had filed a written statement  denying  the avernments in the plaint and had contested the claim of  the plaintiff.   The learned Judge apparently raised no  issues. We  have  found in the printed paper book no record  of  any issues raised. 979 On behalf of the plaintiff, witnesses were examined to prove the  two deposits and the terms of the deposit which it  was claimed  were orally agreed upon.  There was no  documentary evidence  supporting the case of the plaintiff  relating  to the  agreements  between him and Ghosh.  There was  also  no documentary  evidence  supporting  the case  of  payment  of interest  on  the amounts deposited, or of re-payment  of  a part  of the principal.  Indisputably the pleadings  of  the

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parties  raised substantial issues of fact for trial, and  a lengthy  trial  was  held.   But  the  learned  Trial  Judge delivered  no judgment.  He merely decreed the  claim.   The decree was on the face of it erroneous, because it  directed Swaran  Lata and her minor son Arun Kumar personally to  pay the amount decreed. Trial  of a civil dispute in Court is intended  to  achieve, according to law and the procedure of the Court, a  judicial determination  between the contesting parties of the  matter in  controversy.  Opportunity to the parties  interested  in the  dispute to present their respective cases on  questions of  law as well as fact, ascertainment of facts by means  of evidence  tendered  by the parties, and  adjudication  by  a reasoned judgment of the dispute upon a finding on the facts in  controversy  and  application of the law  to  the  facts found,  are essential attributes of a judicial trial.  In  a judicial  trial the Judge not only must reach  a  conclusion which  he regards as just, but, unless otherwise  permitted, by  the practice of the Court or by law, he must record  the ultimate  mental  process leading from the  dispute  to  its solution.   A  judicial determination of  a  disputed  claim where  substantial  questions  of  law  or  fact  arise   is satisfactorily reached, only if it be supported by the  most cogent reasons that suggest themselves to the Judge : a mere order  deciding  the  matter in  dispute  not  supported  by reasons  is  no judgment at all.  Recording  of  reasons  in support  of  a  decision of a  disputed  claim  serves  more purposes  than  one.   It is intended  to  ensure  that  the decision  is  not  the result of whim or  fancy,  but  of  a judicial  approach  to the matter in contest :  it  is  also intended  to ensure adjudication of the matter according  to law  and the procedure established by law.  A party  to  the dispute is ordinarily entitled to know the grounds on  which the  Court  has decided against him, and more so,  when  the judgment  is subject to appeal.  The Appellate  Court,  will then  have  adequate  material on  which  it  may  determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just.  It is unfortunate  that  the learned Trial Judge has  recorded  no reasons in support of his conclusion, and the High Court  in appeal merely recorded that they thought that the  plaintiff had sufficiently proved the case in the plaint. The defendants it is true led no oral evidence and  produced no documentary evidence.  But the defendants had apparently LI I Sup CI/69-13 980 no personal knowledge about the transactions and there is no clear evidence on the record that the first defendant Swaran Lata  had  in  her possession any books of  account  of  the deceased  which  she could have produced and  had  withheld. The burden of proving the claim in all its details lay  upon the  plaintiff.  Absence of documentary evidence in  support of the case made the burden more onerous. We  are unable to agree with counsel for the plaintiff  that "for  all practical purposes" the action was undefended  and that  the  Trial Judge recorded merely  formal  evidence  in proof  of the plaintiff’s case.  The defendants had filed  a written  statement  denying.  the  plaintiff’s  claim,   had appeared  by  counsel at the trial, and had  challenged  the plaintiff’s  evidence by intensive  cross-examination.   The plaintiff who was the principal witness was asked as many as 317 questions and his examination appears to have taken  the better  part of a day.  In the course of the examination  in attempting  to  elicit the truth the learned Judge  took  no mean or insignificant part.  Three more witnesses were  also

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examined. We are also unable to agree that the only plea raised at the trial  and  in the Court of appeal was  about  the  personal liability of the defendants.  The evidence led at the  trial and   the   cross-examination  amply  establish   that   the defendants defended the claim on the merits.  The High Court in  appeal  modified  the decree and restricted  it  to  the estate inherited by the defendants from Ghosh.  But there is no  reason  to hold that the only point  argued  before  the Trial  Court  related  to the extent  of  liability  of  the defendants.   The grounds in the memorandum of appeal  belie that submission. It  is  true that rr. 1 to 8 of 0. 20 of the Code  of  Civil Procedure  are, by the express provision contained in 0.  49 r.  3 cl. (5) inapplicable to a Chartered High Court in  the exercise  of  its ordinary or extraordinary  original  civil jurisdiction.   A  Judge of a Chartered High  Court  is  not obliged  to  record  a judgment strictly  according  to  the provisions  contained in rules 4(2) and 5 of 0. 20  Code  of Civil  Procedure.   But  the privilege of  not  recording  a judgment  is intended normally to apply where the action  is undefended,  where  the  parties are not  at  issue  on  any substantial  matter, in a summary trial of an  action  where leave  to  defend is not granted,  in  making  interlocutory orders  or in disposing of formal proceedings and the  like. Order  49  r. 3 of the Code of Civil  Procedure  undoubtedly applies  to the trial of suits; but the question is not  one merely  of power but of exercise of judicial  discretion  in the  exercise  of that power.  The function  of  a  judicial trial is to hear and decide a matter in contest between  the parties in open court in the presence of parties 981 according  to the procedure prescribed for investigation  of the  dispute, and the rules of evidence.  The conclusion  of the  Court  ought normally to be supported by  reasons  duly recorded.   This requirement transcends all technical  rules of procedure. We  may  assume that the learned Trial Judge  was  satisfied that the claim of the plaintiff deserved to be decreed.  But the  judgment of the learned Trial Judge was not final :  it was  subject  to  appeal and unless  there  was  a  reasoned judgment recorded by the Trial Judge, an appeal against  the judgment may turn out to be an empty formality.  A Court  of appeal generally attaches great value to the views formed by the  Judge of First Instance who had seen the witnesses  and noted  their  demeanour.  How the Judge who tried  the  suit reacted to the evidence of a witness may not always be found from the printed record. The  plaintiff’s case was founded upon extracts of Bank  ac- counts : the extracts however do not evidence the  agreement under  which the money passed from the plaintiff  to  Ghosh. The  plaintiff had to prove not only that money passed  from him  to Ghosh; he had to prove, that money passed under  the agreement  pleaded by him.  Oral testimony of the  plaintiff had  to  be  examined  in the  context  of  several  weighty circumstances e.g. complete absence of documentary  evidence in  the  handwriting  of Ghosh;  absence  of  correspondence relating   to  the  transactions  between  Ghosh   and   the plaintiff;  absence  of books of account in support  of  the transactions;  improbability of a transaction of the  nature pleaded  between an attorney and the plaintiff; absence of any  previous business or professional relationship  between Ghosh and the plaintiff; absence of vouchers supporting  the alleged  payment  of interest and repayment of part  of  the principal and other important circumstances.  In reaching  a

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conclusion  the Court had to consider the probabilities  and the circumstances in which the plaintiff alleged that he had deposited  the  two  sums  of  money  with  Ghosh.   It  was essentially  a case in which there should have been  a  full record  of  the reasons which persuaded  the  learned  Trial Judge to reach the conclusion he did.  A mere order  direct- ing payment of the money, not supported by reasons, does not do duty for a judgment according to law. We  are,  therefore, constrained to come to  the  conclusion that  there has been no real trial of the defendants’  case. It  is  a very unfortunate state of  affairs  that  eighteen years  after the date on which the suit was  instituted,  we have to remand the suit for trial according to law.  But  we see no other satisfactory alternative. The decree passed by the High Court is set aside.  The  suit stands  remanded  to the Court of First Instance  for  trial according to law.  It will be open to the learned Judge  who tries  the  suit to proceed on the evidence already  on  the record.  If the 982 parties desire to lead any additional evidence, he will give them opportunity in that behalf.  If the learned Judge is of the opinion that the witnesses should be examined over again before him, he may adopt that course. As  costs  till now incurred are thrown away on  account  of circumstances  for  which  the  parties  may  not  be   held responsible,  we  direct that there will be no order  as  to costs till this date. We may state that the observations made by us in the  course of this judgment are not intended to express any opinion  by this Court on the merits of the dispute. V.P.S.                               Case remanded. 993