1. The above captioned appeals arise out of the common judgment and decree passed by learned Additional District Judge, Hattian on 16.05.2005. As facts and law of both the appeals are common, hence, were heard together and are decided as such.
2. Brief facts forming the background of the above appeals are that vide Award No.618-22 dated 13.08.2004 land comprising Khasra Nos. 449, 450 and 947, measuring 5 kanals situated in village Khanda Bela Tehsil Hattian was acquired for construction of Girls Middle School. The compensation of the land was determined by the Collector as 1,72,000/-per kanal whereas claim of the petitioners/appellants, herein, is that market price of the land is not less than Rs. 4,00,000/- per kanal. They felt aggrieved from the determination of the compensation and filed a reference before Additional District Judge, Hattian on 06.09.2004. The reference was contested by the respondents by filing written statement. After necessary proceedings learned Additional District Judge, Hattian vide his judgment dated 16.05.2005 enhanced the compensation amount to the extent of Rs. 2,25,000/- per kanal besides, the compulsory charges. Both the parties being not satisfied with the judgment of the learned Additional District Judge have filed these cross appeals.
3. Mr. Sadaqat Hussain Raja, the learned advocate appearing on behalf of Farid Khan & another, appellants herein, raised a preliminary objection that the judgment under challenge was announced by the Presiding Officer without signing the same, hence, is no judgment in the eye of law. He argued that even otherwise the learned Additional District Judge has not properly appreciated the evidence brought on the record and has determined the compensation by ignoring the provisions contained in Section 23 of the Land Acquisition Act, 1894, and the guidelines laid down by the Superior Courts of Pakistan. He pointed out misreading of the evidence and claimed for enhancement of the compensation.
4. The learned Advocate General and Additional Advocate General, on the other hand, contended that interim order dated 16.05.2005 reveals that the learned Judge was present on the date of announcement of the judgment, hence, non-signing the same is mere an irregularity, which does not affect its validity. They further contended that the compensation fixed by the Collector was inline with the evidence brought on record, however, enhancement by the learned Additional District Judge was not legal and is not based on any cogent and convincing evidence. They argued that reasons recorded in support of the judgment under challenge are also not tenable in law.
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. A perusal of the interim orders of the file of trial Court reveals that the parties were heard by the learned Additional District Judge, Hattian on 12.05.2005 and the case was fixed for judgment on 16.05.2005. The learned Additional District Judge announced the judgment in open Court on 16.05.2005, however, neither the judgment nor the decree is signed by the learned Judge.
7. Order XX of the Code of Civil Procedure provides the manner of dictating the judgments in civil cases. For proper appreciation of the matter Rule 3 of Order XX is reproduced as under:-- 3. Judgment to be signed.--The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review.
8. Under the abovementioned rule of Order XX, it is obligatory for Presiding Officer that he should pronounce the judgment after signing it in the open Court, however, position would be different when a Judge who has signed the judgment but could not pronounce the same due to some cause either by death, transfer or after being functus officio. In that case provision of rule 2 of the said Order would be applicable and his successor can announce the judgment sc dictated and signed. In the present case the position is totally different. The learned Presiding Officer has announced the judgment as is indicated from the interim order dated 16.05.2005 but neither the judgment has been signed nor is his hand written, or initialled. The question which emerges for resolution as to whether non-compliance of Order XX of C.P.0 is mere irregularity not affecting the judgment or rights of the parties? The preposition can be answered after considering relevant case law.
9. In Makhan Singh and others v. Wadawa Singh and others' case (A.I.R. 1934 Lahore 763) an order was passed in an execution proceedings holding that application therein was time barred. The order was not signed. A vernacular order was not signed but was written on the same day reciting the fact of the dismissal and initialled by the Judge. In that case non-signing was held not fatal. At page 764 of the report the learned Judge concluded that:-- '----In my opinion, there is no force in this objection. The omission to sign this order was merely an accidental omission and this fact is established by the initials of the Judge on the vernacular order.
10. Moreover, it has been held in 1920 Cal 597(1), that the infringement of the procedure prescribed by
0. XX, Rr. 1, 2, and 3 merely constitutes an irregularity curable by consent or waiver and it affords no ground for reversal of the decree based on the judgment irregularly pronounced where the irregularity is waived by the parties and does not affect the merits of the case. This view by analogy applies to the facts of the present case. I consider, therefore, that in the present case the omission being an accidental one and the order of the executing Court passed on October 8, 1927, having been repeated by the Judge in his vernacular order must be held to be binding on the appellant, who should have appealed against it if he wanted to get rid of its effect and as he did not do so it is not open to him to attack the order in subsequent proceedings..
11. In Firm Gokal Chand-Jaagan Nath v. Firm Nand Ram Das-Atma Ram's case (A.I.R 1938 Privy Council 292) same view was approved in the following words:- "The Rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the Rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The Rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object. No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reasonable opportunity to sign it. The Court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more comment, but even so the convenience of the Court and the interest of litigants must prevail. The defect is merely an irregularity. But in truth the difficulty is disposed of by Ss. 99 and 108, Civil P.C. S. 99 provides that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. That section comes in the part dealing with appeals from original decrees. But S. 108 applies the same provision to appeals from appellate decrees and it is always in the discretion of the Board to apply the principle on appeal to His Majesty in Council. In their Lordships' judgment the defect here was an irregularity not affecting the merits of the case or the jurisdiction of the Court, and is no ground for setting aside the decree".
12. Identical view is taken in Bahadar Ali's case (1990 M LD 588). However, in Nisar Ahmad v. Presiding Officer, Punjab Labour Court No.2, Lahore & another (PLD 1976 Lahore 1162), Mr. Justice Gui Muhammad Khan, (as his lordship then was) almost in the similar circumstances, observed as under:-"The provision of O.XLI, Rule 31 thus leave no doubt that the judgment of the appellate Court shall be in writing and shall include various matters as mentioned therein. It has to be pronounced and signed at the same time and has to be dated. The Labour Court is also an appellate Court and therefore, it must conform to these requisites before it can import validity to its judgments". Again at page 1168 of the report his lordship observed as under:- "The ratio decidendi of the above judgments appears to be that if law requires that the judgment should be in writing, be announced publicly and signed, then an oral order may be merely an intention of the Court as to what judgment is going to be, but that certainly is not a valid, operative and a final judgment in the eye of law. That judgment can be altered at any time before it is announced and signed and even fresh proceedings can be started". On the same page the learned Judge came to the following conclusion:-- "An examination of the above provisions of law and the judgments would go to show that where a law provides for writing, announcing and signing a judgment, all that must be done in that way, in order to give validity to the judgment. All official acts are to be done in writing and more-so in case of judgments and orders of Courts and tribunals, particularly when there are specific provisions as to how they are to be written and delivered. There are separate provisions for altering or amending judgment after it has been signed. These provisions make it absolutely clear that after a judgment has been announced and signed, a Judge cannot alter or review it except in accordance with law.
13. The Court is then functus officio as the previous proceedings stand concluded. These restrictions, however cannot apply to an oral announcement as it is not in a crystallized form. It is to be written out and it can be changed, amended or modified any number of times before it is actually finalized".
14. In view, of above case law, it is concluded that where the judgment or an order is hand written of the Presiding Officer or is initialled by him, the same can be said to have been validly announced.
15. The validity of order cannot be questioned provided that party has not accepted the same by acquiescence- or waiver. However, where neither the interim order reveals about the acceptance or rejection of the judgment or the same is even not initialled then it is a mere opinion and cannot be equated with a judgment contemplated by Order XX of C.P.C. In that eventuality the case would be deemed pending before relevant Court. The controversy in the instant case has arisen from reference proceedings, which is to be tiled under a special law i.e. the Land Acquisition Act, 1894.
16. Sections 18 to 26 of the said Act prescribe a special procedure for inquiry and disposal of an application filed for enhancement of the compensation or otherwise. Section 26 of the Land Acquisition Act, 1894, is as follows:-- "26. Form of awards: (1) Every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of Section 23 and also the amounts (if any) respectively awarded under each of the other clauses of the same subsection, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, clause (2), and Section 2, clause (9), respectively, of the Code of Civil Procedure, 1908."
17. In Land Acquisition Act, 1894, by Sardar Muhammad Iqbal Khan Mokal, (Edition 1987), the learned author has enumerated the following prerequisite of the award to be issued under Section 26 of the said Act:-- The requisites of a valid award are according to the Section as follows:
(1) The award should be in writing and signed by the Judge. Mere initialing is not enough to give validity to the award; (2) It should specify the amount of compensation awarded in pursuance of the first clause of sub-Section (1) of Section 23; (3) it should contain the respective amounts, if any, awarded under clauses 1 to 6 of Section 23, sub-section (1); (4) The grounds for awarding each of the aforesaid amounts should be stated; (5) It is also necessary by virtue of Section 27 to state the amount of costs incurred in the proceedings before the Court together with a statement by what persons and in what proportions the costs are to be paid. Section 25 requires the Court to specify the amounts awarded under the different clauses of Section 23 and the grounds for awarding each of the said amounts, apparently for the same reasons as the Civil Procedure Code requires that the judgment of a subordinate Court shall contain certain particulars.
18. As the judgment has been handed down and announced in violation of the above stated provision of law, therefore, Order XX of C.P.0 may not be applicable strictly. As stated above judgment under challenge is no judgment in the eye of law for having been handed down in violation of Section 26 of the Land Acquisition Act, 1894, therefore, appeals are allowed. The reference would be deemed pending before the learned District Judge Hattian who is directed to decide the case afresh, after hearing the parties.