Case Note & Summary
A suit was instituted on the Original Side of this Court in 1969 for the redemption of a mortgage executed in 1925. The Defendants were a company owned by the State of Madhya Pradesh, the State itself, and the Union of India. The suit was transferred to the list of long causes in August 1969. By 1992, the suit was not shown as pending in the registry's statement of suits as on 1 January 1992, and a similar situation obtained in a subsequent list prepared in August 2008. In August 2008, the Plaintiffs' advocate sought to inspect the suit papers but they were untraceable. On 26 December 2008, a departmental note was put up seeking reconstruction of the missing records. On 14 January 2009, the Prothonotary and Senior Master passed an order granting reconstruction without notice to the Defendants and without any determination whether the suit was still pending. The suit was then placed before learned Single Judges for trial. When the Defendants objected, a Motion was taken out seeking stay of the hearing until an enquiry was conducted on the correctness of the reconstruction order. That Motion was dismissed by the learned Single Judge on 10 February 2010. The appeal before the Division Bench led to directions for inspection of Minute Books and suit registers. The inspection revealed that relevant pages from the suit register of 1969 were missing, and entries for suits 1 to 50 were torn and not available. The Division Bench directed an enquiry by a senior judicial officer to determine if the suit had been dismissed in default or was no longer pending as on 14 January 2009. The Enquiry Officer submitted a report dated 8 November 2011, which stated that despite extensive search, there was no trace of the suit and it could not be definitively opined whether the suit was dismissed in default or not pending. The Enquiry Officer noted that even the record maintained in the Union Ministry of Law and Justice at Mumbai had gone missing, and relevant pages from all registers were missing. The Division Bench, after hearing parties on the report, set aside the order of the learned Single Judge dated 20 April 2011 and remanded the matter for fresh decision after taking the enquiry report into consideration. The core legal issue was whether reconstruction of records could be allowed without first ascertaining that the suit was still pending on the file of the court. The court held that reconstruction presupposes pendency, and an order for reconstruction without such determination and without notice to the opposite side is invalid. The court emphasized that the basic issue of pendency must be resolved before proceeding with trial, and the learned Single Judge ought to have considered the enquiry report before dismissing the Motion. The appeal was allowed accordingly.
Headnote
A) Civil Procedure - Reconstruction of Records - Pending Suit Requirement - High Court Original Side Rules - The Prothonotary ordered reconstruction of the suit record without notice to defendants and without determining whether the suit was pending on file - Held that before reconstructing a record, the court must be satisfied that the suit is pending; reconstruction without such determination is invalid; matter remitted for fresh consideration after enquiry (Paras 1-11).
Issue of Consideration
Whether the suit was pending on the file of the court on the date of the order of reconstruction; whether the reconstruction of the records was validly ordered
Final Decision
Appeal allowed; order of learned Single Judge dated 20 April 2011 set aside; matter remanded to Single Judge for fresh consideration after taking into account the enquiry report dated 8 November 2011.
Law Points
- Before reconstructing court records
- the court must be satisfied that the suit is pending
- order for reconstruction without notice to opposite party is invalid
- pendency of suit must be determined based on available records
