OWNERS AND PARTIES INTERESTED IN M.V. "VALI PERO" ETC. ETC. versus FERNANDEO LOPEZ & ORS.

Citation: [1989] SUPP. 1 S.C.R. 187 · Decided: 19-09-1989 · Supreme Court of India · Bench: M.N. VENKATACHALIAH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

OWNERS AND PARTIES INTERESTED IN M.V. "VALi 
PERO" ETC.ETC. 
v. 
FERNANDEO LOPEZ & ORS. 
SEPTEMBER 19, 1989 
[M.N. VENKATACHALIAH, N.D. OJHA AND J.S. 
VERMA, JJ.] 
Calcutta High Court Rules, 1914: Chapter XXIJ Rule 4'-
0mission of Signature of witness on his deposition recorded on Com-
mission-Defect whether fatal-Whether entire evidence excluded. 
When the foreign vessel M. V. "Vali Pero" arrived at the port of 
Calcutta, 10 non-Greek seamen on board that ship filed a suit in the 
admiralty jurisdiction of the Calcutta High Court for recovery of their 
dues. During the trial, depositions of the defendants' witnesses were 
recorded on commission. Objection was raised on behalf of the 
plaintiffs to reception in evidence of these depositions on the ground of 
• 
absence of witness' signature of the deposition as required in Rule 4 of 
chapter XXII of the Calcutta High Court Rules, 1914, applicable to the 
Original Side. The objection was upheld by the learned Single Judge as 
also by the Division Bench. 
A 
B 
c 
D 
E 
The learned Single Judge then decreed the suit on the unrebutted 
evidence of the plaintiffs. One Special Leave Petition bas been filed 
against the judgment of Division 'Bench affirming the order of the 
learned Single Judge excluding the defendants' evidence. The other 
Special Leave Petition bas been filed against the judgment of the 
learned Single Judge decreeing the plaintiff's suit after excluding the 
f 
defendants' entire oral evidence. 
On behalf of the· appellants it was contended that omission of 
witness' signature on the deposition recorded by the Commissioner did 
not invalidate the deposition atleast in a case like the present where the 
correctness and authenticity of the deposition was undisputed; that in 
G 
this sense the requirement of the witness' signature on the deposition 
was not a mandatory requirement; that the defect was c1irable by 
obtaining the witness' signature even now; that the respondents' 
counsel had admitted the correctness of the depositions; and that the 
respondents had omitted to raise any objection will after the suit was 
Closed for judgment. In reply, the respondent relied on the reasons 
fl'. 
187 
188 
SUPREME COURT REPORTS 
[1989) Supp. 1 S.C.R. 
A 
given in the Division Bench's judgment construing the requirement in 
Rule 4 as mandatory. It was also urged that the argument of curing the 
defect by obtaining signatures even now was not advanced in the High 
Court and should not be permitted at this stage. 
B 
c 
E 
F 
G 
Allowing the appeals and remanding the suit to the learned Single 
Judge to be decided afresh, this Court, 
HELD: (1) The requirement of witness' signature on the deposi-
tion in Rule 4 is directory even though the requirement of the deposition 
being recorded, read over to him and corrected 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. [196FJ 
(2) The essential requirement 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 mis-
takes 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 deposition. '1968-CJ 
(3) 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. [I 96D J 
( 4) While the essential reqnirements of Rule 4 are no doubt 
mandatory requiring strict compliance, the requirement of witness' 
signature therein is directory of which substantial compliance is 
sufficient. I I 96G I 
· 
(5) There is substantial compliance of this directory require-
ment where the correctness and authenticity of the deposition is 
undisputed. Compliance can be had of this requirement even by sub-
sequent admission of correctness of the deposition by the witness, 
in case of dispute. [196H; j97AJ 
(6) 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. The requirement of signature 
is not court's assurance since the witness is not examined in court. 
H 
Accordingly, it cannot be said reasonably that the 

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