Andhra Pradesh High Court - Amravati
Jampala Malayadri Naidu vs Meruva Subrahmanyam on 2 May, 2022
THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI
Civil Revision Petition No.1628 of 2019
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the docket order, dated 12.03.2019, passed in C.F.No.1347 of 2019 on the file of the Court of the Principal District Judge, Nellore.
2. Heard Sri T.Janardhan Rao, learned counsel for the revision petitioner/plaintiff and Sri T.C.D.Sekhar, learned counsel for the respondents/defendants. The 5th respondent is shown to be not a necessary party to this revision.
3. The suit was originally filed in the Court of the Junior Civil Judge, Naidupet, and written statement was filed. As per the finding in I.A.No.352 of 2016 on court fee in preliminary enquiry, the suit falls within the pecuniary jurisdiction of Court of Senior Civil Judge at Guduru. The plaint, after return from the Junior Civil Judge's court, Naidupet, was presented in the court of Senior Civil Judge, Gudur, and it was returned with some objections. Subsequently, the original plaint was misplaced in the office of the advocate.
4. A petition was filed seeking permission to re-construct the plaint based on the duplicate copy of plaint and other records filed 2 BSB, J C.R.P.No.1628 of 2019 earlier at the time of filing of the suit in the Court of Junior Civil Judge, Naidupet and which is now available in the suit bundle sent to the Court of Senior Civil Judge, Guduru.
5. By the docket order, dated 12.03.2019, the learned Prl. District Judge, Nellore, rejected the petition observing that there is no procedure for reconstruction of a original plaint, which is missing from the custody of the plaintiff or his advocate and that further that Court has no jurisdiction with regard to passing any order regarding an issue pending before the Senior Civil Judge's Court, Gudur.
6. The revision petitioner is mainly aggrieved by the finding that no permission can be accorded in respect of the record, which is not lost from the custody of the Court. It is by exercise of inherent power of Court, permission is granted for reconstruction of record lost.
7. In Kasireddy Satyanarayana v. State of Andhra Pradesh and others1, it was held at paragraph Nos.9 to 11 as follows:
"9. It should be noted that Courts by exercising the inherent jurisdiction reconstruct the records that were misplaced, lost or destroyed during their custody so as to avoid any prejudice being caused to the parties. The 1 2021 (5) ALD 381 (AP) 3 BSB, J C.R.P.No.1628 of 2019 object behind reconstruction of records is based on the maxim "Actus Curiae Neminem Gravabit", which means that the act of the Court shall prejudice no one and the Court is under an obligation to undo the wrong done to a party by the act of the Court, vide Kalabharati Advertising v. Hemant Vimalnath Narichania: AIR 2010 SC 3745. Regarding the inherent power of the Court, we have some case law.
(i) In Marakkarutti v. T.P.M. Veeran Kutty, AIR 1923 Mad. 647, a Division Bench of the High Court of Madras tried to trace the origin of the inherent power of the Court to construct the record. It observed thus:
"2. xxxx..... I think that one can safely start with the proposition that there is inherent power in every Court to reconstruct its own records, and I think it follows that there is inherent power in the Appellate Court to reconstruct the records of the Court from which an appeal lies to it. This power has been recognised in England and in America, which follows the English Common Law, and also in this Country. The English case that is quoted on the subject is Douglass v. Yallop, 97 E.R. 532. The matter was more fully discussed in an American case, McLendon v. Jones, 42 Am. Dec. 640, a judgment of the Court of Alabama which quoted and followed Douglass v. Yallop (supra) and a case which had been decided by the Supreme Court of New York; and that case points out, "Cases must frequently have occurred in which, by accident, the records of Courts of Justice have been destroyed or lost, and it would seem strange if the Common Law had provided no adequate means by which the injuries growing out of such accident could be averted or remedied," and then goes on to discuss the methods by which the remedy should be provided."4
BSB, J C.R.P.No.1628 of 2019
(ii) In Ram Khelawan v. Dy. Director of Consolidation, 1987 RD 350, the High Court of Allahabad reiterated the inherent power. It held thus:
"6. The principle of reconstruction of document whether it is lost, burnt or misplaced not oh account of fault of either parties is clearly covered under the Courts' inherent power under Section 151 Code of Civil Procedure. However, this power has to be exercised with great care and circumvention to see that in reconstruction of file no party is getting favourable gains from the position what it was prior to the reconstructions. One of the principles which is to be kept in mind is that the party should be given fullest opportunity first to file such certified copies which are in their possession of those records which are now not available to the Court. In doing so the Court need not confine itself to the certified copies but even copies which are not certified if either party did not object and accept the said document, it may be accepted as a part of the record of the then existing document. No fixed principle or criterion could be laid down to the Court in deciding as to in what manner the record is to be reconstructed."
(iii) In' U.P. State Road Transport Corporation v. Geeta Devi, 1983 ACJ 360, the High Court of Allahabad observed thus:
"11. xxxx .... This, to our mind, can be done under Section 151 of the Code of Civil Procedure Section 151 Code of Civil Procedure preserves inherent power which a Court of general jurisdiction is required to exercise in the ends of justice. The "inherent power", observed by the Supreme Court in Manoharlal v. Seth Hira Lal [AIR 1962 SC 527] "has not been conferred on the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties, before it."
12. It may further be stated that it is one of the first and the highest duties of the Courts to take care that the act of the Court does no injury to any of the 5 BSB, J C.R.P.No.1628 of 2019 litigants. Accordingly, if on account of some accident, the record of a Court is lost or destroyed by fire, it is the duty of the Court to reconstruct the same so that justice is done between the parties on its basis.
13. The argument raised in this regard was that as there is no specific power in Code of Civil Procedure for reconstruction of a destroyed record, the Court is not empowered in exercise of its inherent power to get it reconstructed. It is undeniable that the Court cannot exercise its inherent power which is otherwise prohibited by any specific provision or impliedly barred. In the exercise of its inherent power, the Court should be careful to see that its decision is based on sound general principles and is not in conflict with them or the intention of the Legislature."
(iv) In S.S. Neelamegam v. R. Jeyapal and others, 2011 (5) CTC 537, in the context of reconstruction of an application for restoration of the suit misplaced by the Court staff, the High Court of Madras (Madurai Bench) observed that for the mistake of either the Court or its staff no litigant should suffer or be penalized when no fault is attributable to him. Every Court of law has inherent powers to reconstruct its record which is universally recognized principle.
10. It is pertinent at this juncture to mention about S.O. 51 of the High Court of A.P. Standing Orders, 2004. It says that in the matter of reconstruction of records, the High Court usually advises the Unit Heads to exercise their powers under Section 151 CPC with regard to civil matters.
11. Thus, the ratio in the above decisions is that a Court in whose custody record was misplaced, lost or destroyed can exercise its inherent powers and reconstruct such record so as to obviate injustice being done to party who was not at fault........"
8. It is held that when a document is lost from the custody of a Court, since act of Court shall not prejudice no one, by exercise of its inherent power, reconstruction of the said document is 6 BSB, J C.R.P.No.1628 of 2019 permitted. This decision dealt with reconstruction of document lost from the custody of court (custodia legis) and the effect of reconstruction on the nature of the document. Such document may include documents of pleadings or documents used or intended to be used as evidence or any other kind.
9. This decision further deals with document lost from the custody of the party, which is intended to be produced in evidence, since it is observed that such document can be filed as secondary evidence. It is further held about impounding of such document. Thus, the point in respect of reconstruction of any other kind of document such as pleadings etc lost from the custody of a party has not fallen for consideration. There is no restriction under law for permitting reconstruction of such document in case of its loss. In other words, it cannot be said that no permission can be given for reconstruction of the record lost from the custody other than that of Court. Inherent powers can be exercised whenever required for the ends of justice or to prevent abuse of process of law. In other words, the exercise of this power cannot be circumscribed by any or some specified or defined parameters. Sole consideration is to meet the ends of justice or to prevent abuse of process of law.
10. Just because inherent power is exercised to reconstruct the document lost in custodia legis, as act of court shall not prejudice 7 BSB, J C.R.P.No.1628 of 2019 no one, it cannot be construed to understand that it can be exercised only for that purpose. Inherent power is exercised whenever it is required for ends of justice. As such, this authority/power/jurisdiction is to be exercised to remedy the loss being caused. It has to be exercised in other circumstances also to meet ends of justice. In each case, facts and circumstances are to be examined to see whether permission can be granted.
11. In the present case, admittedly, the loss of record is not from the custody of the Court. The grounds on which the record was returned will not be available since no record of grounds for return is maintained in Court. As a practice, the objection(s) for return are noted on the file itself and when the file was returned to the counsel or party, there is no record available with the Court. Thus, the objections already taken cannot be reconstructed. The party may have copies of all documents which were filed by him, but the contents of the objections taken by Court cannot be reconstructed for want of record maintained in Court. If the record is lost from the custody of the Court, its copy may be available with the party and thus, the same may be permitted to be reconstructed. But when the record, copy of which is not available, is lost from the custody of the party, there is no such occasion to verify the contents of the record proposed to be used for reconstruction of the 8 BSB, J C.R.P.No.1628 of 2019 record. Thus, this Court do not see any reason to interfere with the orders impugned.
12. Learned counsel for the revision petitioner submitted that in the event permission to reconstruct the plaint cannot be ordered, the party may be permitted to file a fresh suit since rest of the file is available in the Court itself and it is only the returned plant which is lost. He further submitted that since the suit was filed for declaration of title, recovery of possession and mandatory injunction etc., the law of limitation is (12) years and thus, an opportunity may be given to the petitioner to file fresh suit. In the alternative, he submitted the period spent during this revision may also be permitted to be excluded under Section 12 of the Limitation Act for the petitioner spent all the time in a a bona fide pursuit. In either of the cases, the petitioner has to show the trial Court that the cause is within the period of limitation. As such, keeping it open the said questions to be decided by the Court concerned, the petitioner is given liberty to file a suit afresh, if so advised.
13. In the result, the Civil Revision Petition is dismissed, however with the aforesaid liberty.
There shall be no order as to costs.
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BSB, J C.R.P.No.1628 of 2019 Pending miscellaneous petitions, if any, in this revision shall stand dismissed.
____________________ B. S. BHANUMATHI, J 02-05-2022 RAR