TMI Blog1989 (9) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has held this defect to be fatal and accordingly excluded the entire oral evidence of the defendants recorded on commission resulting in the suit being decreed in plaintiffs' favour on the unrebutted testimony of the plaintiffs. Correctness of this view is assailed before us. 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 ₹ 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 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 defend- ants' witnesses examined on commission on the ground of absence of witness' signature on the deposition; the objection was upheld by the learned single Judge as also by a Division Bench in a Letters P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability of these petitions but only assails their entertain ability under Article 136. In our considered opinion pragmatism and assurance of shortening this unduly protracted litigation 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1987 and concluded it 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 4.15 P.M. 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. A.K. Auddy -- Advocate (Sandersons Morgans) on behalf of the defendant Mr. B.C. Kundu 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. sig. Illegible Commissioner Appointed by the Hon'ble High Court vide order dated 25.2.87 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable 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 rectified. 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 undisputed. 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 commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss' signature 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 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 C.P.C., 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 mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to avoid the drastic consequence of nullifying the deposition where the correctness and authenticity is undisputed. In a case where the correctness 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 authenticit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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