ivil Appeal Nos
3986 3987 of 1989
From the Judgment and Order dated 2331989 and 641989 of the Calcutta High Court in Appeal No 69 1 of 1988 and Admiralty Suit No 6 of 1985 respectively
Dr Shanker Ghosh CR Addy AK Sil G Joshi and Mrs Urmila Narang for the Appellants
MK Ramamurthi HL Tiku and Ashok Grover for tne Respondents
190 The Judgment of the Court was delivered by VERMA J
Is omission of the witness  signature on his deposition recorded on commission as required by Rule 4 of Chapter XXII of the Calcutta High Court Rules 1914 ap plicable to the Original Side a defect fatal to the recep tion of the deposition in evidence even when the correctness and authenticity of the deposition is undisputed Subject to the preliminary objection raised by Shri MK 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 accordingly excluded the entire oral evidence of the defendants recorded on commis sion resulting in the suit being decreed in plaintiffs  favour on the unrebutted testimony of the plaintiffs
Cor rectness of this view is assailed before us
A foreign vessel MV 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 1540 lacs claimed as their dues from the owners of the vessel deposi tions of the defendants  witnesses were recorded on commis sion and submitted to the learned single Judge trying the suit who closed the case on 24121987 for pronouncing judgment on 1211988 before delivery of judgment on 1081988 objection was raised on behalf of the plaintiffs to reception in evidence of the depositions of the defend ants  witnesses examined on commission on the ground of absence of witness  signature on the deposition the objec tion was upheld by the learned single Judge as also by a Division Bench in a Letters Patent Appeal and the suit has been decreed on 641989 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 the security demanded from them by interim orders in the suit
Even at the risk of this description being labelled as oversimplification 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
191 Both the Special Leave Petitions are by the defendants owners of the vessel
One Special Leave Petition is against the judgment dated 2331989 of the Division Bench of the High Court affirming the order dated 1081988 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 641989 of the learned single Judge decreeing the plaintiffs  suit after exclusion of defendants  entire oral evidence
Petitioners urged that filing of an appeal under the Letters Patent against the judgment and decree in the suit was futile in view of the earlier Division Bench judgment dated 233 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 entertain ment 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 appeal 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 powers are fairly wide on account of which he does not contend that they are not maintainable
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 assurance of shortening this unduly protracted litigation are by themselves suffi cient 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
Technically Shri Ramamurthi is right that ordinarily special leave need not be granted where remedy of a statutory 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 commends to us is to grant leave and decide 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 192 judicata 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 adjudication 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 deci sion 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 suit
In such a situation directing the resort to the remedy of an appeal under the Letters Patent against the final decision in the suit will needlessly delay decision of 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 evidence the depositions of the appellants  witnesses recorded on commission 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 necessary for deciding the main controversy at this stage relating to the construction of Rule 4 of Chapter XXII of the Calcutta High Court Rules 1914 applicable to the Original Side
In the above Admiralty Suit No 6 of 1985 the appel lants 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  plaintiffs in the suit evidence was concluded on February 23 1987
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 BC Kundu Advocate of the Alipore Bar was appoint ed the Commissioner for this purpose
The Commissioner commenced recording the depositions of these witnesses at New Delhi on May 1 1987 and concluded it 193 on May 4 1987
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 minutes in token of their acceptance
The minutes are as under A meeting was held this afternoon dated 15th May 1987 at 415 PM at lB Old Post Office St Calcutta I to furnish the report of the Commission
Members present Mr Taimur Hossain Advocate on behalf of the plaintiffs Mr AK Auddy Advocate Sandersons  Morgans on behalf of the defendant Mr BC Kundu A list of Exhibits as also copies of deposi tions 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
Illegible Commissioner Appointed by the Hon ble High Court vide order dated 25287 sd Md Taimur Hossain Advocate for the plaintiffs 194 sd AK Auddy Advocate 15587 Received a copy Sig
Illegible Recd
a copy of the minutes
sd AK Auddy
 The Commissioner then submitted his report along with the depositions recorded by him in a sealed cover to the Registrar Original Side of the High Court
The parties also filed written submissions 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 1211988 at 3 PM marked For Judg ment
 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 of appellants  witnesses exam ined on commission in evidence of the suit
Somehow the judgment was not delivered on 1211988 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 on merits instead of releasing it
It was then on 1081988 that respondents  plaintiffs in the suit counsel raised the objection to inclusion of the depositions of appellants  witnesses examined on commis sion in evidence of the suit on the ground that the deposi tions were not signed by the witnesses as 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 LPA 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
SLP No 4074 of 1989 is against this order
On this view the learned single Judge has proceeded to decree the suit on the basis of respondents  unrebutted evidence and SLP No 93 18 of 1989 195 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 Cal cutta High Court Rules 1914 applicable to the Original Side with reads as under 4
Deposition to be read over signed etc
After the deposition 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 recti fied
The deposition shall be signed by the witness and left with the Commissioner who shall subscribe his name and date of the examination Dr Shanker Ghosh learned counsel for the appellants contended 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 correctness and authenticity of the deposition is undisput ed
He argued that in this sense requirement of the witness  signature on the deposition is not a mandatory requirement the absence of which may invalidate the deposition
He also contended that the defect if any was curable by obtaining the witness  signature even now for which the appellants are prepared
He added that in order to put the matter further beyond controversy the affidavits of the witnesses examined on commission were filed in the High Court during pendency of the appeal before the Division Bench admitting correct ness of their depositions
He also placed strong reliance on admission of the respondents  counsel to the correctness of the depositions in the minutes recorded by the Commissioner on 1551987 as well as the omission to raise any such objection till 1081988 much after the suit was closed for judgment on 24121987
He finally urged that the mistake if any was of the Commissioner in not taking 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 MK 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 basis excluding from evidence in the suit of these depositions
He also contended that copies of affida vits of the witnesses filed in the High Court were not supplied to the respondents
He added that the argument of curing the defect by obtaining signatures of the witnesses on the depositions was not advanced in the High Court due to which it 196 should not be permitted now
Shri Ramamurthi also made the grievance that belated pleas of the appellants have caused needless harassment 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
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 applica tion of the well settled principles
The essential require ment of Rule 4 is that the deposition of a witness examined on commission shall be taken down in writing read over and where necessary translated to the witness in order that mistakes or omissions 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 deposi tion
The further requirement of signature of Commissioner with the date of examination and deposition being left with the Commissioner to enable its production in court is to ensure its authenticity
The only remaining requirement in Rule 4 of the witness  signature on the deposition has relevance to the admission of the witness of its correct ness
The signature of the witness is not a part of the deposition 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 deposition recorded in a Court except that under Order 18 Rule 16 CPC does not require the witness  signature on the deposition
It appears that witness  signature on the deposition recorded on com mission 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 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
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 directo ry requirement where the correctness and authenticity of the deposition is undisputed
Compliance can be had of this requirement even by subsequent admission of correctness of the deposition by 197 the witness in case of dispute
This construction of Rule 4 made by us also promotes the object of its enactment instead of negativing it
Rules of procedure are not by themselves an end but the means to achieve the ends of justice
Rules 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 prevents its miscar riage by enabling the court to do justice in myriad situa tions all of which 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 outcome 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 procedural provision
Otherwise rules of procedure will become the mistress 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 authen ticity of 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 insignificant omission in the present case
The consequence of failure to comply with any require ment 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 noncompliance
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 otherwise it may be construed to be merely directory
198 In short the construction ultimately depends on the provi sion 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
vs Lakshmi Narayan Gupta  The 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 de fault in payment of rent
This Court construed the word shall  in that context as directory and not mandatory since such a construction would advance the purpose of enactment and prevent miscarriage of justice
In taking this view this Court was impressed by the fact that the default at tracting the drastic consequence of striking out defence may be only formal or technical and unless the provision was treated as directory it would render the court powerless even where striking out the defence may result in miscar riage of justice
We may refer to a passage from Crawford on Statutory Construction  which was quoted with approval in Govindlal Chagganlal Patel vs The Agricultural Produce Market Committee Godhra and Others  and relied on in this decision
The quotation is as under The question as to whether a 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 construing 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 wit ness  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 con struing it as mandatory or directory
If the word shall  used in this expression is construed as mandatory non compliance of which nullifies the deposi tion drastic consequence of miscarriage of justice would ensue even where omission of the witness  signature is by inadvertence and correctness of the deposition as well as its authenticity is undisputed
On the other hand if the word shall  used in this expression is treated as directo ry the court will have power to prevent miscarriage of justice where the omission 199 does not cause any prejudice and the defect is only techni cal
The object of the provision being merely to obtain acceptance of the witness to the correctness of the deposi tion that object would be advanced by taking this view and thereby empowering the court to avoid the drastic conse quence 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 examine the effect of omission of the witness  signature and to reject the deposition only if it does not accept the correctness and authenticity thereof on the available material
We do not find any cogent reason to take the view that 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 incapable of being read as evidence
Various facets discussed above lead unerringly to this conclusion
In view of the above discussion 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 read over to him and correct ed wherever necessary is mandatory
Mere omission of the witness  signature on the deposition does not render the deposition invalid when the correctness and authenticity thereof is undisputed
In the present case correctness and authenticity of the deposition of the appellants  witnesses being undisputed and the technical objection of omission of the witness  signature on the deposition being raised as an after thought much after the learned single Judge had closed the suit for delivery of judgment the objection is untena ble
With respect the High 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 untenable technical ground is that the suit has been decreed treating respondents  evidence to be unre butted
Exclusion of appellants  entire oral evidence has undoubtedly resulted in miscarriage of justice
The judgment and decree passed by the learned single Judge is vitiated for this reason alone
We end on a melancholy note for the past with hope for a better future
At a time when the minds of all of us are rightly exercised by the proverbial laws delays and innova tions are being made and suggested to prevent the apprehend ed collapse of the existing system the 200 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 certainly have considera bly shortened the litigation so far
With both sides appear ing equally keen for a quick resolution of the dispute and this being obviously welcome to the Court we see no reason why the 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 direc tion by hastening to pronounce our judgment on conclusion of the elaborate arguments on September 8 1989 illuminating the penumbral zone
Consequently these appeals are allowed
The order dated 1081988 passed by the learned single Judge the judgment dated 2331989 passed by the Division Bench of the High Court affirming that order and the judgment and decree dated 641989 passed by the learned single Judge are all set aside
The suit shah be decided afresh by the learned single Judge treating the depositions of appellants  wit nesses recorded on commission as evidence in the suit after hearing 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
RSS Appeals al lowed


Summary:
The appellant and respondents 7 to 13 are Assistant Conservators of Forest and are governed by the Bihar Forest Service Rules 1953
As per Rule 3 thereof appointment to the said post is made either by direct recruitment or by promotion of selected Rangers
The appellant and respondents 7 to 12 were promoters and respondent 13 was a direct recruit
Though the appellant was promoted subsequent to the promotion of respondents 7 to 12 his appointment was made retrospective
The appellant was the last to be confirmed as Assistant Conservator of Forest
As a Ranger also the appellant was appointed much later to respondents 7 to 12
On the basis of confirmation seniority has been determined
The appellant challenged the seniority of respondents 7 to 13 over him by way of a Writ Petition in the High Court
He relied on a memorandum to the Cabinet which contained a note that if the appellant was found fit for promotion his place would be above 10 general category officers and since the memorandum was approved by the Cabi net his name in the seniority list should have been placed above those officers
The respondents resisted the claim stating that the Cabinet had not approved the memorandum in its entirety
The High Court dismissed the Writ Petition and this appeal by special leave is against the said judgment
The contentions raised before the High Court were reiterated in this appeal this appeal
Dismissing the appeal 202 HELD 11
Rule 35 of the Bihar Forest Service Rules 1953 specifically deals with seniority
In the instant case Clause i of the proviso is not attracted
Even Clause ii is not attracted inasmuch as respondent No 13 even though was appointed by direct recruitment was not appointed at the same time as the appellant and respondents7 to 12
It is Clause iii which is relevant for the determination of the seniority inter se of the appellant and respondents 7 to 12
On a plain reading of this Clause it is apparent that on substantive appointment of Rangers to the service by promo tion their seniority inter se in the service is to be governed by their seniority inter se held as Rangers
The appellant as well as respondents 7 to 12 have already been confirmed as Assistant Conservator of Forest and meet the requirement of substantive appointment to the service by promotion
In order to determine their inter se seniority as Assistant Conservator of Forest therefore their senior ity inter se as Rangers shall be the determining factor
Respondents 7 to 12 had been appointed as Rangers much before the date on which the appellant was appointed as a Ranger
Hence the claim of seniority as made by the appel lant has no substance
204D 205B E 12
It is settled law that the provisions of statutory rules cannot be modified or altered by executive instruc tions and it is only in the absence of statutory rules that executive instructions have relevance
As such even if for the sake of argument it may be accepted that on account of the memorandum to the Cabinet or any other executive in struction the appellant was to be given seniority as claimed by him it could not be done as in case of a conflict the statutory provisions contained in proviso iii of Rule 35 of the Rules shall prevail
205E F