NUKALA VENKATESU Vs. NANDURI SURYANARAYANA

JUDGEMENT

(1.) This civil revision petition raises an important question of procedure, namely, the scope of Order XX Rule 2, C.P.C., and that is why it has been referred to a Bench by our learned brother, Satyanarayana Raju, J.

(2.) The point that falls to be decided in this revision petition is, whether a succeeding Judge has option to try a suit de novo or whether it is obligatory on him to pronounce the judgment prepared hut not pronounced by his predecessor.

(3.) It is urged or behalf of the petitioner that Order 20, Rule 2, C.P.C. which recites that "A Judge may pronounce a judgment written but not pronounced by his predecessor" casts a duty on the succeeding Judge to pronounce the judgment prepared by his predecessor and that he has no opinion in the matter. The position taken by the learned counsel for the respondents is that the succeeding Judge has an absolute discretion in the matter and he is not bound to pronounce the judgment written by the predecessor. In support of this contention, he relies upon the decisions in Lachman Prasad v. Ram Kishan, ILR 33 All 236 (A) and Hargulal v. Abdul Gany, AIR 1936 Rang 147 (B). We find it difficult to give effect to the contention urged by the learned counsel for the respondents or follow the rulings cited by him. In ILR 33 All 236 (A), there is no discussion on the subject, and the learned Judges agreed with the opinion expressed in In The Goods of Premchand Moonshee. ILR 21 Cal 832 (C), and In re Baker, Nichols v. Baker, (1890) 44 Ch D 262 (D). We fail to see now either ruling furnishes any guidance in regard to the interpretation of Order XX Rule 2 C.P.C. ILR 21 Cal 832 (C), was concerned with the scope of Section 380 of the Civil Procedure Code of 1882 corresponding to Order XXV, Rule 1 of the present Code which vests a discretion in a Court to direct the plaintiff to furnish security for costs. All that was decided in (1890) 44 Ch D 262 (D), was that the power given by the Bankruptcy Act, 1883, to transfer the administration of an insolvent estate from the Chancery Division to the Court of Bankruptcy, was a discretionary power and that the Judge was not under an obligation to exercise it whenever the estate was found to be insolvent. In that very judgment, a distinction was made between the discretion vested in a Court without a duty to exercise it in favour of an individual and a power coupled with a duty on the Court or a person to whom it is given to use that power in a certain particular way. There is definite pronouncement by the Lord Justices that if the power given was of the latter category, the Judge or the person who is entrusted with that power is bound to exercise it and it is not discretionary with him to exercise it or not. Coming to the decision of the Rangoon High Court, the observations relied on by the learned counsel for the respondents are that under Order XX, rule 2 C.P.C., it is not necessarily incumbent upon the successor of the Judge who wrote a judgment after he had ceased to be a Judge of the Court in which the trial was held, to pronounce the judgment that had been written by his predecessor. That is a case where the officer who wrote the judgment had ceased to be a Judge at the time he prepared the judgment. In such a set-up, it is not clear whether the learned Judges felt that the succeeding Judge had the option to pronounce or not having regard to the fact that the predecessor had ceased to be a Judge at the time the judgment was written, or that Order XX, rule 2 C.P.C., conferred an unfettered discretion in the succeeding Judge either to pronounce the judgment written by his predecessor or to deliver his own judgment or to hear the suit or appeal de novo. If the observations are meant to convey the idea that the succeeding Judge is at liberty to choose either of the two courses, we have to express our respectful dissent from them. It may also be observed that they are merely obiter and were not necessary for the decision of the case.