Owners and Parties Interested in M.V. "vali Pero" Etc. Etc. v. Fernandeo Lopez & Ors.
VERMA, J. Is omission of the witness' signature on his deposi
tion recorded on commission, as required by Rule 4 of Chapter XXII
of the Calcutta High Court Rules, 1914, applicable to the Original°
Side, a defect fatal to the reception of the deposition in evidence even
when the correctness and authenticity of the deposition is undisputed?
Subject to the preliminary objection raised by Shri M.K. Ramamurthi,
learned counsel for the respondents, this is the main point for decision
on merits to be answered with reference to Rule 4 of Chapter XXII of
the Calcutta High Court Rules, 1914, applicable to the Original Side.
The Calcutta High Court has held this defect to be fatal and accord
ingly excluded the entire oral evidence of the defendants recorded on
comission resulting in the suit being decreed in plaintiffs' favour on the
unrebutted testimony of the plaintiffs. Correctness of this view is
assailed before us.
0 A foreign vessel M. V. "Vali Pero" sailing under the Greek flag
arrived at the port of Calcutta on April 20, 1985; 10 non-Greek seamen
on board that ship filed a suit on August 2, 1985 in the admiralty
jurisdiction of the Calcutta High Court for recovery of approximately
Rs.15.40 lacs claimed as their dues from the owners of the vessel;
depositions of the defendants' witnesses were recorded on commission
and submitted to the learned single Judge trying the suit who closed
E the case on 24.12.1987 for pronouncing judgment on 12.1.1988; before
delivery of judgment on 10.8.1988 objection was raised on behalf of
the plaintiffs ·to reception in evidence of the depositions of the
defendants' witnesses examined on commission on the ground of
absence of witness' signature on the deposition; the objection was
F upheld by the learned single Judge as also by a Division Bench in a
Letters Patent Appeal; and the suit has been decreed on 6.4.1989 on
the unrebutted evidence of plaintiffs. In the meantime, one of the
plaintiffs is stated to have died while another is alleged to be critically
ill; and on the ·other hand, the vessel continues to be detained at the
Calcutta Port even after the owners have furnished ·t11e security
G demanded from them by interim orders in the suit.
Even at the risk of this description being labelled as oversimplifi
cation, this is the scenario of the forensic battle in which the point
raised has to be decided. We may add that this is not the first journey
to this Court of this litigation by special leave during the trial of the
suit.
' M.V. VALi PERO v. r. LOPEZ [VERMA, J.] 19 j
Both the Special Leave Petitions are b~ the defendants, owners
of the vessel. One Special Leave Petition is ~g~inst the judgment dated
23.3.1989 of the Division Bench of the High Court affirming the order
dated 10.8.1988 of the learned single Judge excluding the defendants'
oral evidence recorded on commission for the above defect. The other
· Special Leave Petition is directed against the judgment and decree
dated 6.4.1989of the learned single J4dge decreeing the plaintiffs' suit
after exclusion of defendants' entire oral evidence. Petitioners urged
that filing of an appeal under the Letters Patent against the jud&ment
and decree in the suit was futile in v1ew of the earlier Division Bench
judgment dated 23.3.1989 on the main point in controversy even in
respect of the final decision.
The preliminary objection of Shri Ramamurthi is that the first
Special Leave Petition, apart from arising out of an interlocutory order
which does not justify its entertainment, is also now infructuous after
decision of the suit itself in which that interlocutory order was made.
The other Special Leave Petition should not be entertained, according
to Shri Ramamurthi, because it circumvents the statutory internal ap
peal under the Letters Patent to the Division Bench of the High Court.
Shri Ramamurthi contended that this Court should not, therefore,
entertain either of these petitions for grant of special leave under
Article 136 of the Constitution, even though the pGwers are fairly wide
on account of which he does not contend that they are not main
tainable.
We shall first dispose of the preliminary objection of Shri
Ramamurthi. He has very fairly stated that he does not challenge the
maintainability of these petitions but only assails their entertainabilitY.
under Article 136. In our considered opinion pragmatism and assu
rance of shortening this unduly protractediitigation are .by themselves
sufficient and eloquent reasons to grant leave in these matters and to
- decide the above question on merits forthwith instead of deferring that
decision to a later date. Technicall_y, Shri Ramamurthi is right that
ordinarily special leave need not be granted where remedy of a statu
,tory appeal being available has not been exhausted. However, m the
particular facts of this case when the decision in Letters Patent Appeal
appears to be a forgone conclusion, the appropriate course which com
mends to us is io grant leave and de~ide the matter straightaway
instead of deferring that "decision to a later stage after exhaustion of
the futile remedy of Letters Patent Appeal in the High Court.
We may at this stage also mention the argument based on res
iudicata addressed to us. The point raised is: whether the decision by a
Division Bench of the High Court affirming the learned single Judge's
order excluding the depositions from evidence will bar a fresh adjudi
cation of that point in the Letters Patent Appeal filed against the final
decision in the suit? In our opinion, this academic exercise is unneces-
sary in the present case since it cannot be doubted that irrespective of
the question of res judicata, earlier decision on the same point by a
Division Bench of the High Court will atleast be a binding precedent
when the matter is reagitated before the Division Bench hearing the
appeal against the final decision in the suiL In such a situation direct
ing the resort to the remedy of an appeal under the Letters Patent
against the final decision in the suit will needlessly delay decision of
C the point by this Court. We are, therefore, of the opinion that, in the
present case, it is neither necessary to decide the question of res
judicata argued before us nor would it be appropriate to refuse leave
and direct the petitioner to first exhaust the remedy of an appeal under
the Letters Patent in the High Court. We, accordingly, proceed to
decide the point involved on merits.
Leave granted.
Having heard learned counsel for the parties, we have formed
the opinion that the High Court was in error in excluding from evi
dence the depositions of the appellants' witnesses recorded on com-
E mission and in proceeding to decide the suit on that basis. The matter
will, therefore, have to go back to the High Court for a fresh decision
of the suit treating these depositions as evidence in the suit. In view of
this conclusion reached by us, we shall mention only the facts neces
sary for deciding the main controversy at this stage relating to the
construction of Rule 4 of Chapter XXII of the Calcutta High Court
F Ruies, 1914, applicable to the Original Side.
In the above Admiralty Suit·No. 6 of 1985, the appellants
(defendants in the suit) filed an application on February 6, 1987 for
examining their two witnesses, Mr. A. Kappos and Mr. Parakis, on
commission at the Greek Embassy in New Delhi. The respondents'
0 (plaintiffs in the suit) evidence was concluded on February 23, .J987.
On February 25, 1987, the learned single Judge trying the suit directed
issue of a commission for examination of the appellants' two witnesses
on commission at the Greek Embassy at New Delhi and Mr. B.C.
Kundu, Advocate of the Alipore Bar was appointed the Commissioner
for this purpose. The Commissioner commenced recording the deposi-
11 lions of these witnesses at New Delhi on May 1, 1987 and concluded it
-
M.V. VALi PERO v. F. LOPEZ [VERMA, J.] 19.i
on May 4, i987. The deposition of each witness was signed by the
Commissioner after being read over to the witness who admitted it to
be correct. However, the signature of the witness was not taken on the
deposition. The Commissioner settled the minutes in a meeting with
counsel for parties in which the depositions recorded on commission
were admitted to be correct and counsel for the parties signed the
mmutes in token of their acceptance. The minutes are as under:
"A meeting was held this afternoon dated 15th May, 1987
at 4. 15 P.M. at 18, Old Post Office St., Calcutta- i to
furnish the report of the Commission.
Members present:
Mr. Taimur Hossain
Mr. A.K. Auddy
Mr. B.C. Kundu
- Advocate on
behalfof
the plaintiffs
- Advocate
(Sandersons &
Morgans) on
behalf of the
defendant
A list of Exhibits as also copies of depositions recorded at
Greek Embassy, New Delhi were given to the parties. No
amendment or correction was suggested in the deposition
by either of the parties.
The Report of the Commissioner would be submitted
on Monday, the 15th May, 1987.
sd/- Md. Taimur Hossain
Advocate for the plaintiffs
sig. Illegible
Commissioner
Appointed by the Hon'ble
High Court vide order
dated 25.2.87
sd/- A.K. Auddy
Advocate 15.5.87
Received a copy
Sig. Illegible
Recd. a copy of the minutes.
sd/-A.K. Auddy."
The Commissioner then submitted his report along with the
depositions recorded by him in .a sealed cov·er to the Registrar (Ori
ginal Side) of the High Court. The parties also filed written submis
sions in the court treating these depositions as evidence in the suit and
on December, 1987 the learned trial Judge recorded the proceedings
as under:
"The. Court: Deposition including the documents taken on
commission are formally tendered in Court by the learned
Advocate appearing for the defendant (in a sealed cover).
Both the parties have submitted their written argument in
Court earlier. Let this suit appear in the List on i2. 1. 1988
at 3 P.M. marked "For Judgment".''
It is clear that till closing of the suit for judgment, no objection
was raised on behalf of the respondents to inclusion of the depositions
E of appellants' witnesses examined on commission in evidence of the
suit. Somehow the judgment was not delivered on 12. J. 1988 and even
thereafter for quite some time and the learned single Judge then made
an order releasing the suit. This led to a special leave petition in this
Court by the respondents and an order was made by this Court
requesting the learned single Judge trying the suit to dispose of the suit
IP on merits instead of releasing it.
It was then on i0.8. i988 that respondents (plaintiffs in the suit)
counsel raised the objection to inclusion of the depositions of appel
lants' witnesses examined on commission in evidence df the suit on the
ground that the depositions were not signed by the witnesses as
G required by Rule 4 ibid. That objection was upheld by the learned
single Judge as well as a Division Bench of the High Court in L.P.A.
against that order. The High Court has held this defect to be fatal on
its view that even the requirement of witness· signature in Rule 4 ibid
is mandatory. S.L.P. No. 4074 of 1989 is against this order. On this
view, the learned single Judge has proceeded to decree the suit on the
fl basis of respondents' unrebutted evidence and S.L.P. No. 9318 of 1989
-
M.V. VALi PERO v. F. LOPEZ [VERMA, J.] i95
is against the judgment and decree in the suit.
The controversy on merits depends ultimately on the correct
construction. of Rule 4 of Chapter XXII of the Calcutta High Court
Rules, i914 applicable to the Original Side with reads as under:
"4 .. Deposition to be read over, signed etc. After the depo
sition of any witness shall have been taken down, and
before it is signed by him, it shall be distinctly read over,
and, where necessary, translated to the witness in order
that mistakes or omissions may be rectified. The deposition
shall be signed by the witness and left with the. Commis
sioner . who shall subscribe his name and date of the
examination."
Dr. Shanker Ghosh, learned counsel for the appellants con
tended that the omission of witness'. signature on the deposition
recorded by the Commissioner does not invalidate the deposition
atleast in a case like the present where the conrrectness and authenti
city of the deposition is undisputed. He argued that in this sense
requirement of the witness' signature on the deposition is not a man
datory requirement, the absence of which may invalidate the deposi
tion. He also contended that the defect, if any, was curable by obtain
ing the witness' signature even now for which the appellants are pre
pared. He added that in order to put the matter further beyond con
troversy, the affidavits of the witnesses examined on commission were
filed in the High Court during pendency of the appeal before the
Division Bench admitting correctness of their depositions. He also
placed strong reliance on admission cif the respondents' counsel to the·
correctness of the depositions, in the minutes recorded by the Com
missioner on 15.5.1987 as well as the omission to raise any such objec
tion till 10.8.1988 much after the suit was closed for judgment on
. 24.12.1987. He finally urged that the mistake, if any, was of the Com
missioner in not ta~ng the signatures of the witnesses and no party
·.should-be prejudiced by an act or omission of the Commissioner who
was an officer:of the'Court. In reply, Shri M.K'.. Ramamurthi, relied on
the reasons given in the Division Bench's judgment dated March 23,
1989 for construing.this requirement in Rule 4 ibid as mandatory and
on that b~is excluding from evidence in the suit of these depb~itions.
He also contended that copies of affidavits of the witnesses filed in the
High Cpurt were not sµpplied to the respondents. He added that the ·
argument of curing the defect by obtaining signatures of the witnesses
.()11 the depositions was not ~dvanced in the High Co_urt due to which it
A should not be permitted now. Shri Ramamurthi also made the grie
vance that belated pleas of the appellants have caused needless harass
ment to the respondents. Since we have come to the conclusion that
these appeals should be allowed on the construction of Rule 4 ibid, we
need not decide the other points urged.
fl
'
It is needless to burden our decision with the several well-known
authorities cited at the Bar indicating the test to be applied to, decide
whether a provision is mandatory or directory. The real difficulty
arises only in the application of the well-settled principles. The essen
tial requirement of Rule 4 is that the deposition of a witness examined
on commission shall be taken down in wirting, read over, and, where
necessary, translated to the witness in order that mistakes or omis
sions, if any, may be rectified or supplied. The mandate in Rule 4 to
this extent must be complied strictly in order to ensure a correct record
of the deposition. The further requirement of signature of Comms
sioner with the date of examination and deposition being left with the
Commissioner to enable its production in court is to ensure its authen-
D ti city. The only remaining requirement in Rule 4 of the witness' signa
ture on the deposition has relevance to the admission of the witness of
its correctness. The signature of the witness is not a part of the deposi
tion and apart from acknowledging the correctness of his deposition on
the deposition itself, it is not essential for any other purpose in this
context. It is well-known that under the Code of Civil Procedure a
E · deposition recored in a Court, except that under Order 18, Rule 16
C.P.C., does not require the witness' signature on the deposition. It
appears that witness' signature on the deposition recorded on commis
sion is only required for court's assurance since the witness is not
examined in court. Accordingly, it cannot be said reasonably that the
omission of witness' signature on the deposition renders the deposition
f' incomplete. If this be the true import of the witness' signature on the
deposition recorded on commission, the deposition cannot be treated
as incomplete, much less, invalid merely due to omission of witness'
signature when correctness or authenticity of the deposition is
undisputed.
(i It appears to us that while the essential requirements of Rule 4
indicated above are no doubt mandatory requiring strict compliance,
the requirement of witness' signature therein is directory of which
substantial compliance is sufficient. There is substantial compliance of
this directory requirement where the correctness and authenticity of
the deposition is undisputed .. Compliance can be had of this require-
H ment even by subsequent admission of correctness of the deposition by
M.V. VALi PERO v. F. LOPEZ [VERMA, J.l 197
the witness, in case of dispute. This construction of Rule 4 made by us
also promotes the object of its enactment ins(e~d of negativing it.
Rule"s of procedure are not by themselves an end but the means
to achieve the ends of justice. Rul~s of procedure are tools forged to
achieve justice and are not hurdles to obstruct the pathway to justice.
Construction of a rule of procedure which promotes justice and pre
vents its miscarriage by enabling the court to do justice in myriad
situations, all of w'1ich cannot be envisaged, acting within the limits of
the permissible construction, must be preferred to that which is rigid
and negatives the cause of justice. The reason is obvious. Procedure is
meant to subserve and not rule the cause of justice. Where the out
come and fairness of the procedure adopted is not doubted and the
essentials of the prescribed procedure have been followed, there is no
reason to discard the result simply because certain details which have
not prejudicially affected the result have been inadvertently omitted in
a particular case. In our view, this appears to be the pragmatic
approach which needs to be adopted while construing a purely pro
cedural provision. Otherwise, rules of procedure will become the mis
tress instead of remaining the handmaid of justice, contrary to the role
attributed to it in our legal system.
In this case, none disputes the correctness and authenticity 9f the
depositions recorded on commission but there is omission of witness
signature thereon. The question is: does reception of these depositions
in evidence violate rule 3 ibid in a manner which is impermissible or
this omission can be overlooked as insignificant since correctness and
authenticity of the depositions is undisputed? We have no doubt that
cause of justice would be served instead of being thwarted and the
avowed object of Rule 4 ibid achieved by treating it to be an insignifi
cant omission in the present case.
The consequence of failure to comply with any requirement of
Rule 4 ibid is not provided by the statute itself. Accordingly, the
consequence has to be determined with reference to the nature of the
provision, the purpose of its enactment and the effect of the non
compliance. Rule 4 uses the word 'shall' even while requiring the
signature of the witness as it uses the word 'shall' in respect of the
other requirements of the .Rule. Ordinarily, the word 'shall' used at
several places in Rule 4 must be given the same meaning at all places.
However, it is also settled that this is not an invariable rule and even
though the word 'shall' is ordinarily mandatory but in the context or if
the intention is otherwis.e it may be construed to be merely directory.
'F
In short, the construction ultimately depends on the provision itself
keeping in view the intendment of the enactment and the context in
which the word 'shall' has been used.
It would suffice to refer only to the decision in Ganesh Prasad
Sah Desari & Anr. v. Lakshmi Narayan Gupta, [1985] 3 S.C.R. 825.
Tqe word 'shall' was used therein in connection with the Court's power
to 'strike off the defence against ejectment in a suit for eviction of
tenant in case of default in payment of rent. This Court construed the
word 'shall' )n that context as directory and not mandatory since such a
construction' '\yould advance the purpose of enactment and prevent
miscarriage of j'u~tice. In taking this view, this Court was impressed by
the fact that the default attracting the drastic consequence of striking
out defence may be' Gnly formal or technical and unless the provision
was treated as directo'rl)I, it would render the court powerless even
where striking out the def~nce may result in miscarriage of justice. We
may refer to a passage from Crawford on 'Statutory Construction'
which was quoted with approval in Govindlal Chagganlal Patel v. The
Agricultural Produce Market Committee, Godhta anli Others, [ 1976] 1
S.C.R. 451 and relied on in this decision. The quotation is as under:
'The question as to whether 11 statute is mandatory or
directory depends upon the intent of the legislature and not
upon the language in which the intent is clothed. The
meaning and intention of the legislature must govern and
these are to be ascertained, not only from the phraseology
of the provision, but also while considering its nature, its
design and the consequences which would follow from con
struing it the one way or the other."
It cannot, therefore, be doubted that the word 'shall' used in the
expression 'deposition shall be signed by witness' in Rule 4 ibid has to
be given the meaning keeping in view the intention of the legislature,
the purpose of the enactment and the consequence which would follow
from construing it as mandatory or directory.
o If the word 'shall' used in this expression is construed as manda-
tory, non-compliance of which nullifies the deposition, drastic conse
. tj uence of miscarriage of justice would ensue even where omission of
the witness' signature is by inadvertence and correctness of the deposi
tion as well as its authenticity is undisputed. On the other hand, if the
word 'shall' used in this expression is treated as directory, the court
. fl will have powe.r to prevent miscarriage of justice where the omission
M.V. VALi PERO v. F. LOPEZ !VERMA, J.] 199
does not cause any prejudice and the defect is only technical. The
object of the provision being merely to obtain acceptance of the wit
ness to the correctness of the deposition, that 'object would be
advanced by taking this view and thereby empowering the court to
avoid the drastic consequence of nullifying the deposition where the
correctness and authenticity is undisputed. In a case where the correct
ness has been disputed, it would be permissible for the court to
examirie the effect of omission of the witness' signature and to reject
the deposition only if it does not accept the correctness and authenti
\:_ity thereof on the available material.
We do not find any cogent reason to take the view tha.t the word
'shall' occurring in the expression 'deposition shall be signed by the
witness' in Rule 4 ibid is mandatory which requires strict compliance
and mere omission of which renders the deposition invalid and incap
able of being read as evidence. Vario.us facets discussed above lead
unerringly to tJiis conclusion.
In view of the above di.scussion, we are of the opinion that the
requirement of witness' signature on the deposition in Rule 4 ibid is
directory even though the requirement of the deposition being
recorded, (fad over to him and corrected wherever necessary is man
datory. Mel\e ~mission of the witness' signature on the deposition does
not render the deposition invalid when the correctness ana authenti
city thereof is undisputed. In the present case, correctness and aut
henticity of the deposition o.f the appellants' witnesses being undis-
. puted and the technical objection of or11ission of the witness: signature
on the deposition being rai.sed as an after-thought much after the
learned single Judge had closed the suit for delivery of judgment, the
objection is untenable. With respect, the H.igh Court was in error in
upholding this objection and excluding the deposition of the appel
lants' witnesses examined on commission from the evidence in the suit.
The result of exclusion of the appellants' oral evidence on· this unten
able technical ground is that the suit has been decreed treating respon-'
· dents' evidence to be umebutted. Exclusion of appellants' eiltire oral
evidence has undoubtedly resulted in miscarriage of justi,ce·. The judg
ment and decree passed by the learned single Judge is vi.tiated for this .G
reason alone.
We e.nd on a melancholy note for the past with hope for a bet\er
future. At a time when the minds of all of us are rightly exercised by
the proverbial Jaws delays and innovations are being made and sug-
- gested to prevent the apprehended collapse of the existing system, the H
A course of this litigation leaves us sad. No degree of thought can help
unless translated into action. A more pragmatic appreciation and
interpretation of the rules of procedure with due despatch would cer
tainly have considerably shortened the litigation so far. With both
sides appearing equally keen for a quick resolution of the displlte and
this being obviously welcome to the Court we see no reason why the
B .ultimate decision of the suit cannot now be reached early. We leave
the matter with the fervent hope that the dispute will now be resolved
expeditiously without any avoidable delay. We contribute the first step
in that direction by hastening to pronounce our judgment on conclu
sion of the elaborate arguments on September 8, 1989, illuminating
the penumbra! zone.
Consequently, these appeals are allowed. The order dated
10.8.1988 passed by the learned single Judge, the judgment d,l!ted
23 .3 .1989 passed by the Division Bench of the High Court affirming
that order; and the judgment and decree dated 6.4.1989 passed by the
learned single Judge are all set aside. The suit shall be decided afresh
D by the learned single Judge treating the d~positions of appellan~'
witnesses recorded on commissiop as evidence in the suit, after hear
ing the arguments of parties on merits. The respondents alone cannot
be blamed for this situation and, therefore, we direct the parties to
bear their own costs.
E R.SoS. Appeals allowed~