Bombay High Court
Mrs.Hemlata Vijaysingh Vedh And Ors vs The Provident Investment Co. Ltd. & Ors on 20 April, 2011
Author: R M Savant
Bench: R M Savant
1 NMS-164.11
lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.164 OF 2011
IN
SUIT NO.36 OF 1969
Mrs.Hemlata Vijaysingh Vedh and ors. : Plaintiffs
versus
The Provident Investment Co. Ltd. & ors. : Defendants.
Mr. I M Chagla, Senior Counsel with Mr. Riyaz Chagla i/by Udwadia & Udeshi for
the Plaintiffs to show cause.
Mr. G E Vahanvati, Attorney General with Mr. Praveen Patel, Mr.Rupesh Bobade
and Mr. B K Satija for the Defendant No.1 in support.
Mr. D J Khambatta, Additional Solicitor General with Mr. Chatrapati, Mr. S R
Rajguru i/by Mr. A R Varma for the Defendant No.2
Mr. Vivek Tankha, Additional Solicitor General with Mr. Rajesh Bindra and Mr.
Prasad Pathare for Defendant No.3.
Ms.Saumya Srikrishna with Mr.Rahul Mascarenhas i/by M/s.Amarchand &
Mangaldas & S A Shroff & Co. for the Defendant Nos.4 and 5.
CORAM:- R M SAVANT, J
Reserved on 24th March 2011
Pronounced on 20th April 2011
P.C.
1 The above Notice of Motion has been filed by Defendant No.1 inter
alia claiming the following reliefs :-
(a) That this Hon'ble Court be pleased to set aside Order
dated 10.02.2009 passed by Mr. A S Swamy, the then Master
& Asstt. Prothonotary (Adm.)/Public Information Officer.
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(b) Tht this Hon'ble Court be pleased to order that the
Suit No.36 of 1969 is not pedning and that the same is
disposed off.
(c) That this Hon'ble Court be pleased to direct the Ld.
Prothonotary and Senior Master to furnish a copy of the
Report of Enquiry and her findings as directed by His
Lordship Shri Kathawala, J. vide his order dated
10.02.2010.
The core issue which arises for consideration in the above Motion is as regards
re-construction of the record in the above suit. The said reconstruction has been
allowed by the order dated 10/2/2009 passed by the then Master & Asstt.
Prothonotary (Adm.)/Public Information Officer of this Court. The said re-
construction of the record pursuant to the said order dated 10/2/2009 is
challenged inter alia on various grounds by the Applicant/Defendant No.1 as well
as the other Defendants to the above Suit.
2 On behalf of the Defendants the submissions have been advanced
by the learned Attorney General appearing for the Defendant No.1 as well as the
two learned Additional Solicitor Generals appearing for the Defendant Nos.2 and
3. The submissions are as regards the manner in which the record in the above
suit was allowed to be re-constructed. The submissions have also been made as to
how without affording an opportunity to the Defendants, the record in the above
suit was allowed to be re-constructed, thereby resulting in the said record being
re-constructed behind the back of the Defendants. It is also the submission of the
Defendants that the said record has been allowed to be re-constructed without an
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inquiry into the loss of the record by the office and without ascertaining whether
the above suit was in fact pending, considering the lists prepared by the office of
the pending suits in the years 1992, 2008 and 2010. It is also the submission of
the Defendants that no opportunity has been given to the Defendants to take
proper inspection. The Defendants have also questioned the re-construction of
the record at the behest of the Advocates of the Plaintiffs M/s. Udwadia & Udeshi
who according to the Defendants were not authorised to participate in the
process of re-construction as they did not have the vakalatnama of the Plaintiffs
to so represent them in the above suit at the relevant time.
3 In the light of the reliefs sought in the above Motion and in view of
the fact that there is a serious issue as regards re-construction of the record in the
above suit, it would be necessary to take into consideration the facts antecedent
to the filing of the above Motion.
At the out set it would be relevant to note that the above suit has
been filed by the Plaintiffs for redemption of the mortgaged properties and to
have the same re-conveyed to them and possession thereof. The record discloses
that the process of re-construction of the record in the above Suit was triggered
of by the letter dated 13/8/2008 by which letter the advocates for the Plaintiffs
wrote to the Defendants informing them that they are desirous of taking search
of the papers and proceedings in the above suit on 14/8/2008 at 2.00 p.m. in
the Court Office when the Defendants were requested to remain present if they
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so desired. It appears that simultaneously a letter was also addressed to the
Prothonotary and Senior Master seeking search of the proceedings on the said
day. Admittedly, the Defendants and their advocate did not remain present on
14/8/2008 at 2.00 p.m.. However, the search by Plaintiffs could not fructify as
the papers in the above suit were not traceable in the department. The Plaintiffs,
therefore, vide letter dated 21/10/2008 sought permission of the Prothonotary
and Senior Master to re-construct the papers and proceedings in the above suit.
It appears that on 26/8/2008 a clerk of the Record Department informed the
Asstt. Prothonotary and Senior Master that the papers in the above suit were not
available in the department. The Asstt. Prothonotary therefore passed directions
that the explanation given by the said clerk may be accepted and the order for re-
construction may be passed. Thereafter on 1/1/2009, a praecipe along with the
report was submitted to the Prothonotary and Senior Master and again the
concerned clerk was directed to search out the records. Since the re-construction
of the record is governed by the circular of 1995 r/w Rules, an order was passed
by the learned Prothonotary and Senior Master directing re-construction of the
proceedings and appointing Additional Prothonotary Shri D V Sawant to act as an
officer in terms of the circular dated October 1995. It appears that on
15/1/2009, the learned Additional Prothonotary Shri D V Sawant directed that
the above suit be listed on board on 21/1/2009. On 17/1/2009 the notices came
to be issued to the Defendants informing the Defendants and the Plaintiffs about
listing of the suit on 21/1/2009. It appears that by a letter dated 21/1/2009 the
Plaintiffs' advocates informed the Defendants that the suit will be listed on board
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for re-construction on Thursday, the 22nd January 2009 before Shri D V Sawant,
the learned Additional Prothonotary and Registrar (Judicial-II). It appears that
on 22/1/2009, the suit appeared before the Master and Assistant Prothonotary
(Admn) when the suit was adjourned to 5/3/2009. Thereafter on 2/2/2009 the
advocates for the Plaintiffs addressed a letter to the Prothonotary and Senior
Master and sought preponement of the hearing for re-construction of the record
which as per earlier order was to be listed on 5/3/2009. The said preponement
was sought on the ground that the suit is very old. The issue regarding re-
construction of the record in the above suit was accordingly preponed to
10/2/2009 on which day the Master and Assistant Prothonotary (Admn) passed
an order directing the Plaintiffs and the Defendants to submit the true copies of
the record and proceedings in the above suit on or before 27/2/2009. It appears
that notice of preponement of the hearing on 10/2/2009 was not given to the
Defendants. The Defendants have, therefore, made a grievance about the same. It
is required to be noted that immediately thereafter on 18/2/2009 the advocates
for the Plaintiffs informed the Defendants about the order passed by the Master
and Assistant Prothonotary (Admn) dated 10/2/2009 and requested the
Defendants to hold a meeting on 20/2/2009 at their office or at such other
mutually convenient time, date and venue for the purpose of verification of the
pleadings. The Defendant No.1 by its letter dated 25/2/2009 responded to the
request of the Plaintiffs in the following manner :-
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"Since the defendants are Central Government and are
defended by them, please get all necessary
requirements/informations sought by you from them. This
Office has got no important file, etc."
Thereafter the meeting was fixed on 9/4/2009 before the Master and Assistant
Prothonotary . It was communicated to Defendant No.1 by the learned
Prothonotary and Senior Master by her letter dated 25/3/2009 that the matter
was fixed on 9/4/2009 at which time a copy of the letter of the Defendant No.1
in reply to the Plaintiffs letter requesting the Defendants to remain present was
also handed over to the Master and Assistant Prothonotary (Admn). Thereafter
on 17/6/2009 the Plaintiffs along with their letter of the said date enclosed the
entire proceedings and informed the Defendants that the matter is placed on the
Board of the Master and Assistant Prothonotary (Admn) for re-affirmation and
re-construction on 22/6/2009. The Defendant No.2 was informed that if no-one
appears on their behalf, the Plaintiffs will request the Master and
Asstt.Prothonotary to accept the entire proceedings compiled by the Plaintiffs as
the correct one and allow the Plaintiffs to re-construct the file of the Court. A
similar letter dated 1/7/2009 was addressed by the advocate for the Plaintiffs to
the Defendant No.1 informing them that the matter is now placed before Shri
Matkar, the Master and Asstt. Prothonotary (Judl.) on 7/7/2009. On 21/7/2009,
Shri Matkar, the Master and Asstt. Prothonotary it seems recorded that since the
Master and Asstt.Prothonotary (Admn) has already passed an order on
10/2/2009 giving directions to the parties to re-construct the records, hence the
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matter is wrongly on his Board. It is required to be noted that the learned
advocate Shri Patel by his letter dated 29/7/2009 addressed to the advocate for
the Plaintiffs informed them that he has not received the re-constructed
proceedings from them and requested for the re-constructed proceedings at the
earliest. By their letter dated 30/7/2009 the advocate for the Plaintiffs informed
Shri Patel that by their letter dated 18/2/2009 they had forwarded the
proceedings to the Defendant No.1. However, they once again forwarded the
copies of the proceedings in the above suit to Shri Patel. It is required to be
noted that thereafter there has been no grievance or complaint made on behalf of
the Defendant No.1 in respect of re-construction of the record. By a praecipe
dated 10/8/2009 the Plaintiffs requested the Prothonotary and Senior Master to
place the above suit before the concerned Court under the caption of
"Directions".
4 The above suit thereafter was shown for framing of Issues and the
Issues were accordingly framed on 4/9/2009. The suit thereafter appeared for
admission and denial of documents on 8/12/2009 before S C Dharmadhikari, J.
The documents were marked in terms of the order passed on the said day and the suit was directed to be placed for recording of the evidence of the Plaintiffs on 16/12/2009 at 3.00 p.m. It is recorded in the said order dated 8/12/2009 to the following effect :-
::: Downloaded on - 09/06/2013 17:12:06 :::8 NMS-164.11 "This order does not conclude the objection of Shri Rajguru that the records are not re-constructed in accordance with law"
In the above suit the Plaintiffs have filed their affidavit of evidence and list of documents. The Defendants thereafter have cross examined two witnesses of the Plaintiffs. The Defendants, whilst the witnesses of the Plaintiffs were under the cross examination, filed Notice of Motion No.228 of 2010 impugning the order dated 10/2/2009 of the Master and Asstt.Prothonotary (Admn.) directing re-
construction of the record in the above suit. In the said Motion the main contention of the Defendants was that the re-construction of the records of the suit is not properly done and that the Defendant No.1 has recently come across the list of pending suits prepared by the Office of the Court as on 28/8/2009.
5 In the interregnum, the Defendant No.1 had filed Chamber Summons No.1999 of 2009 seeking re-casting of Issues and some directions. On 4/1/2010 this Court allowed an Additional Issue to be framed pertaining to the valuation of the plaint. In the said Chamber Summons stay to the further hearing of the suit was also sought. It was submitted by the learned counsel appearing for the Defendant No.1 Shri Patel that the Defendant No.1 is desirous of challenging the said order dated 10/2/2009 pertaining to re-construction of the record and that this Court should direct the office to permit the Defendant No.1 to take search of the registers containing the orders from 1969 till the year 2009. This Court rejected the said prayer of the Defendant No.1 to take inspection of the ::: Downloaded on - 09/06/2013 17:12:06 ::: 9 NMS-164.11 registers from 1969 till the year 2009 and for stay of the suit. This Court observed as under :-
" No basis whatsoever is made out for the defendant no.1 to contend that the suit may have been dismissed for non- removal of objections or in default"
It was further observed that the directions as regards the inspection sought were only with a view to further delay the hearing of the suit, which cannot be allowed.
6The Notice of Motion No.228 of 2010 filed by the Defendant No.1 came to be dismissed by this Court (Coram:- S J Kathawala, J) by an order dated 10/2/2010. The learned Judge whilst dismissing the said Motion has commented adversely in respect of the conduct of the Defendant No.1. It has been observed in the said order that the Defendants have made every attempt to stall the hearing of the above Suit and the said Notice of Motion 228 of 2010 was one more attempt, according to the learned Judge, to stall the hearing of the above suit. From the point of view of the present Notice of Motion Paragraphs 2, 8, 9, 10, 12, 15, 16, 17 are relevant and the same are re-produced herein under :-
"2 The present notice of motion is one more attempt to delay the trial. The learned Advocate for the defendant no.1 has submitted that his main contention in the notice of motion is that the reconstruction of the papers/ records is not properly done and that defendant no.1 has recently come across a list of pending suits prepared by the Court Office as on 28th August 2008, wherein the above suit is not shown as pending which goes to show that the present suit may have been dismissed for default in the last ::: Downloaded on - 09/06/2013 17:12:06 ::: 10 NMS-164.11 40 years. Since such brazen attempts are repeatedly made by defendant no.1 to delay the trial, this Court is setting out in some detail certain facts which goes to show that the conduct of the defendant no.1 needs to be deprecated.
8 On 14th August 2009, the suit was placed before this Court [Coram : S.C. Dharmadhikari, J.] for directions, when Mr. Patel, Advocate for defendant no.1 did not voice any grievance and in fact, this Court passed the following order-
"1] This is a suit of the year 1969 and is pending in this court for all these years. It is stated that the records were misplaced and, after the orders of reconstruction were passed, pleadings are reconstructed. Therefore, the pre-trial formalities and procedures could not be completed.
2] It is high time that these matters are expedited inasmuch as the suit of 1969 could not have remained pending for all these decades. In this view of the matter, to enable the plaintiff to proceed with the suit, two weeks time is granted, within which they should file the affidavits of evidence and documents. The originals shall be compiled and whatever documents and affidavits are filed in Court, copies thereof be handed over to the defendants in advance so that on the returnable date, this Court can pass appropriate orders with regard to admission and denial of documents so also recording of evidence. S.O. three weeks.
3] It is stated that in this suit issues are not framed as yet, and, therefore, before the above directions are implemented, it would be desirable and in the interest of justice that the matter is placed for framing issues. Request is accepted. Place the suit for framing issues on 17th August 2009 at 3.00 p.m".
9 On 17th August 2009, draft issues were taken on record. Though Mr. Patel, Advocate for defendant no.1 was present, once again, no grievance was voiced by him before the Court qua the reconstruction of the records. On 21st August 2009, this Court passed the following order :-
" At the request of Mr. Rajguru appearing for defendant no.2 and to enable him to go through the papers and make submissions on ::: Downloaded on - 09/06/2013 17:12:06 ::: 11 NMS-164.11 the framing of issues, S.O. 25th August 2009. No further adjournments will be granted."
10 On 4th September 2009, the learned Advocate for the parties including Mr. Patel for defendant no.1 were heard by this Court [Coram : S.C. Dharmadhikari, J.] and issues were framed.
Plaintiffs were directed to file their affidavits of documents and
evidence for admission and denial of documents.
Thereafter, inspection of the documents relied upon by the plaintiffs was offered to the defendants. On 18th November 2009, the Advocate for the plaintiffs sought time on the ground that the Advocate for the defendant no.1 has just informed them that none of the documents relied upon by the plaintiffs were admitted by them. This Court whilst granting time, recorded as follows :-
"In 1969 suit, the plaintiffs have yet to file their affidavit of evidence. These are not satisfactory state of affairs and ordinarily, the request for adjournment made today could not have been granted without imposing terms including payment of heavy costs, yet, as a matter of pure indulgence and since it is reported that the Counsel is in personal difficulty, the suit is placed under the same caption on 24th November 2009, First on Board. If there is no affidavit filed before that date, the Court will proceed to dismiss the suit for want of prosecution."
12 On 16th December 2009 when the suit came up before this Court [Coram : S.C. Dharmadhikari, J.] for recording of evidence. Mr. Patel, Advocate for defendant no.1 informed the Court that he has moved a Chamber Summons no. 1999 of 2009 seeking inter alia, recasting of issues and some directions. This Court therefore, on 16th December 2009 passed the following order :-
"This matter was placed for recording evidence. Repeatedly, I have impressed upon the parties that this is one of the oldest suit on the file of this Court. The suit is of the year 1969 and evidence is yet not recorded in this suit. When it was placed for recording evidence, now it is stated by Mr. Patel appearing for defendant no. 1 that he has moved a chamber summons no.1999 of 2009, seeking inter alia, recasting of issues and some directions. List this chamber summons first on board on 4th January 2010."::: Downloaded on - 09/06/2013 17:12:06 :::
12 NMS-164.11 15 Having failed at every stage to have the trial of the above suit stayed, defendant no.1 took out the present notice of motion once again seeking a stay of the trial of suit on the ground that defendant no.1 was not having proper notice from the Court Office or from the plaintiffs, when Mr. Swami, Master and Assistant Prothonotary passed the said order dated 10th February 2009. As stated earlier, Mr. Swami, Master and Assistant Prothonotary had on 10th February 2009 not reconstructed the Court records. He had only allowed reconstruction of the records and had directed the parties to submit true copies of the respective records and proceedings in the above suit. The said order was conveyed inter-alia to defendant no.1 on 18th February 2009 and was also requested to attend a meeting with the plaintiffs to enable the parties to reconstruct the pleadings. A compilation of records was also forwarded by the plaintiffs to the defendant no.1. The said request was turned down by defendant no. 1 as set out hereinabove by stating that the plaintiffs should get all the necessary requirements/ information from the Central Government and that the Office of defendant no.1 has got no important file, etc. At no time, defendant no.1 came forward to reconstruct the records and in fact, by its letter dated 29 th July 2009 informed the Advocates for the plaintiffs that defendant no.1 has not received the said reconstructed proceedings and that the plaintiffs should serve/forward the proceedings (reconstructed by the plaintiffs) to the defendant no.1. The Advocate for the plaintiffs have by their letter dated 30th July 2009, reminded the Advocate for the defendant no.1 that the records were already furnished to the defendant no.1 under the cover of their letter dated 18th February 2009. However, once again, copies of the proceedings were forwarded to defendant no.1 on 30th July 2009. The defendant no.1 has not made any grievance qua reconstruction of papers since August 2009 before this Court and have also participated in framing of issues on 4th September 2009 which could not have been done if defendant no.1 was not in possession of the reconstructed records or had any objections qua the reconstructed records. The defendant no.1 for the first time tried to make a grievance qua the reconstruction of records before this Court on 8th December 2009 which was not taken cognizance of, on the ground that the issues have already been framed on the basis of the reconstruction of the records. In the present notice of motion, defendant no.1 has relied upon a statement prepared by the Court Office as on 28th August 2008 wherein the above suit is not shown as pending before this ::: Downloaded on - 09/06/2013 17:12:06 ::: 13 NMS-164.11 Court. As set out earlier, on 14th August 2008 itself, the plaintiffs were told by the Court Office that the original Court proceedings in the suit are not traceable. Therefore, it is obvious that if a list of pending suits is prepared on or after 28th August 2008 no mention of the suit is found therein. The defendant no.1 is therefore, not entitled to any reliefs sought in the notice of motion.
16 The present notice of motion was earlier argued by Mr.Patel for some time on 1st February 2010 when it was pointed out to him that the defendant no.1 cannot be once again allowed to raise the issue pertaining to reconstruction of records since the same issue was raised by the defendant no.1 on earlier occasions and was rejected by this Court by its orders dated 8th December 2009 and 4th January 2009. At that time, Mr. Patel informed the Court that he appreciates that he cannot raise the issue of reconstruction of records once again and that he is also not submitting that the cross-examination of PW1 which is being recorded should be stayed. Mr. Patel submitted that he will be satisfied if he is allowed to go through certain registers to satisfy himself that the suit was not dismissed in default. Mr. Patel submitted that since Mr. Rajguru has informed the Court that a letter was received from the Court Office some time in the year 1977 informing the defendants that the suit is likely to come up for final hearing after the May vacation of 1977, he should be allowed to see some of the registers containing the minutes. Mr.Mathkar, Master and Asstt. Prothonotary (Judl.) was also present before the Court at that time and he showed this Court the suit Register for the year 1969, wherein several pages were torn and/or missing. The said Register was also shown to the Advocates for the parties. Thereafter, only by way of indulgence, Mr. Patel was allowed to take inspection of the minutes books with a clarification that the trial shall proceed in the meantime. On 3rd February 2010, at the request of Mr. Patel he was allowed to inspect the records maintained at the G.T. Hospital and also at the Court premises. However, yesterday, i.e. on 9th February 2010, Mr. Patel, Advocate for defendant no.1 submitted before the Court that since this Court is not hearing his notice of motion on merits, he is unable to get the decision of this Court qua the stay on further proceedings in the suit and in the absence of an order of this Court, he is also unable to go before the Appeal Court, seeking stay of the suit. This outburst on the part of the Advocate for defendant no.1 was obviously because yesterday, i.e. on 9th February 2010, the crossexamination of the plaintiffs' witness was over and the defendants were directed to ::: Downloaded on - 09/06/2013 17:12:06 ::: 14 NMS-164.11 file their compilation of documents within a period of one week from the date of the order.
17 In view thereof, the notice of motion is taken up for hearing today. Today, Mr. Patel has filed an additional affidavit setting out therein that the relevant Registers are torn and the pages are missing. This, Mr. Patel had known when the Register was produced before this Court on 1st February 2010. As set out earlier, defendant no.1 was allowed to see a few Registers to satisfy itself that the suit was not dismissed after the Summer Vacation of 1977, when the matter was likely to come up. However, the defendant no.1 is trying to take advantage of the indulgence shown by the Court and is seeking inspection of all records from 1969 to 2009 which request was specifically rejected by my order dated 4th January 2010.
In view of the aforesaid facts and circumstances, I am of the view that no case whatsoever is made out in the notice of motion for grant of stay on the hearing of the suit. The defendant no.1 has also not pointed out any fault in the papers and proceedings reconstructed before this Court nor have they produced any evidence showing that the suit has been dismissed for default. Under the circumstances, notice of motion filed by the defendant no.1 is dismissed with costs.
The learned Judge in the last para has observed that the Officers of this Court, who are responsible to maintain the suit registers are duty bound to maintain all records/registers, more particularly, registers/records pertaining to the years in which proceedings are filed and are still pending. They cannot be heard to say that only because the register is forty years old, the same is in torn and/or incomplete or maintained in such a pathetic condition. The learned Judge directed the learned Prothonotary and Senior Master to conduct an enquiry and thereafter submit an explanation to this Court within 12 weeks as to why the relevant register/s is/are torn and papers are missing therefrom and who according to her, is responsible for such state of affairs. The learned ::: Downloaded on - 09/06/2013 17:12:06 ::: 15 NMS-164.11 Prothonotary and Senior Master was also directed to state in the report as to what action she proposes to take against the erring officers.
7 Against the said order dated 10/2/2010 the Defendants filed two Appeals being Appeal Nos.124 and 128 of 2010 in this Court. Whilst the said Appeals were pending, the Defendants had filed two SLPs in the Apex Court being SLP Nos.9181 of 1010 and 8715 of 2010. The said two SLPs were filed against the order dated 3/3/2010 passed by a Division Bench of this Court by which order the hearing of the Appeal was adjourned. In view of the fact that the Appeals were pending in this Court, and in view of the fact that the Appellate Bench, comprised of the learned Single Judge who had passed the order which was impugned, the Apex Court was of the view that the proper course for the Petitioners was to move the Hon'ble the Chief Justice drawing his attention to the constitution of the Bench and about the urgency of the matter. The Apex Court expressed that if that was done the matter will be heard on 31/3/2010 to which date the said Appeal No.124 of 2010 was adjourned. The Apex Court therefore did not deem it fit to entertain the said SLPs which were accordingly dismissed.
A Division Bench of this Court thereafter heard the said Appeal No. 124 of 2010 and disposed it of by an order dated 9/4/2010. From the point of view of the present Notice of Motion Paragraph 5 of the said order and the directions issued in Paragraph 7 are relevant and the same are reproduced herein under :-
::: Downloaded on - 09/06/2013 17:12:07 :::16 NMS-164.11 "5 At the hearing of the appeal, Counsel appearing on behalf of the Appellant submitted that all that the Appellant seeks at this stage is inspection of the order sheets pertaining to the suit from Minutes Books maintained by the Registry on the Original Side with a view to ascertain as to whether there is any order by which the suit has been dismissed in default.
7 We had indicated to Learned Counsel that it would be appropriate if the Appellant has a fair opportunity to inspect the Minute Books where a record of the orders passed by the Learned Trial Judges in Long Cause Suits is maintained. As noted earlier, the Learned Counsel for the Appellant sought an opportunity to inspect the Minutes Books in order to be satisfied that the suit still continues to be pending and that it has not been dismissed in default. The original record of the suit was not traceable; it is common ground that the pages from the suit register of 1969 are torn and the statement prepared by the Registry on 26 August 2008 does not show the suit to be pending. The suit was instituted forty years ago, much prior to the advent of computerisation. Learned Senior Counsel appearing on behalf of Respondents 1 to 15 submitted that while the Appellant has had a sufficient opportunity to inspect the record and to respond to the record reconstructed by the Plaintiffs, there would be no objection if another opportunity is granted to the Appellant to take inspection, within a specified time frame. During the course of the hearing, we had indicated to Counsel that it would be appropriate if parties would agree to a working arrangement in order to enable the Appellant to have an opportunity of ascertaining whether the suit continues to be on the file of this Court on the Original Side. During the course of the hearing, Counsel have agreed to the following order being passed by the Court on their request, without any further recording of reasons. Accordingly, there shall by consent of Counsel be an order in the following terms:
(i) The Appellant is permitted to take inspection of the Minutes Books which contain orders passed by Judges of this Court, assigned with the work of hearing Long Cause Suits and of the Suit Register pertaining to the suit in question;
(ii) The Appellant agrees to complete the exercise of taking inspection under clause (i) by 19 June 2010;
(iii) In the event that upon taking inspection the Appellant is ::: Downloaded on - 09/06/2013 17:12:07 ::: 17 NMS-164.11 able to establish either from an order passed by the Learned Trial Judge or by any administrative order of the Prothonotary that the suit was dismissed in default, it would be open to the Appellant to bring this to the attention of the Learned Trial Judge hearing the suit. For this purpose, the suit shall be listed on Board for directions on 21 June 2010 before the Learned Trial Judge;
(iv) In the event that the Appellant is not able to establish on the basis of the material on the record that the suit has been dismissed in default or that it is no longer borne on the file of the Court, it is agreed that the hearing of the suit shall then proceed in accordance with the time schedule that may be laid down by the Learned Single Judge;
(v) In order to facilitate the completion of the exercise, the original Plaintiffs agree through Counsel not to pursue the proceedings in the suit until 21 June 2010;
(vi) The parties shall place a copy of this order on the file of the Learned Single Judge on 15 April 2010 when the suit is stated to be listed for hearing;
(vii) The Appellant shall furnish to the Original
Plaintiffs and to the other parties, notice of the date(s)
on which they propose to take inspection of the records, at least twenty four hours in advance. Any of the parties who desire to depute a representative at the time of inspection, would be at liberty to do so;
(viii) Inspection shall take place during office hours between 11 a.m. and 5 p.m. on office working days;
(ix) The Prothonotary and Senior Master is directed to act in compliance with the aforesaid directions which are issued with the consent of all the parties.
(emphasis supplied) 8 What is significant to note is that it has been recorded in the said order that the Appellants who are the Defendants in the suit had sought no other orders and no other point is pressed, save and except the point of inspection of ::: Downloaded on - 09/06/2013 17:12:07 ::: 18 NMS-164.11 the order-sheets pertaining to the suit from the Minutes Books maintained by the Registry on the Original Side with a view to ascertain as to whether there is any order by which the suit has been dismissed in default.
9 Thereafter the Defendants had filed two Chamber Summons being Chamber Summons Nos.835 of 2010 and 836 of 2010 seeking extension of time for carrying out the inspection. The Division Bench was pleased to extend the time by its order dated 23/8/2010 and stayed the hearing of the above suit until 6/12/2010 as according to it from the material before the Court it is clear that full inspection of the Minute Books containing orders passed by the learned Trial Judges assigned with the work of Long Cause Suits has not been provided by the Registry. The Division Bench was of the view that it would not be appropriate and proper in the interest of justice to allow the trial to proceed when the basic issue as as to whether the suit continues to remain pending on the file of this Court is still to be resolved.
10 Heard the learned counsel for the parties.
11 The learned Attorney General appearing on behalf of the Defendant No.1 in support of the above Notice of Motion relied upon the following circumstances viz:-
::: Downloaded on - 09/06/2013 17:12:07 :::19 NMS-164.11 (1) List of the pending suits dated 28/08/2008;
(2) List of the pending suits dated 30/1/2010;
(3) List of the pending suits dated 31/1/1992;
(4) Pages of Minutes Book which were torn
(5) Authority of M/s.Udwadia and Udeshi to represent the Plaintiffs at the
relevant time in August 2008, when record discloses that Vakalatnama is filed on 20/12/2010 According to the Attorney General the said list of the pending suits can be said to be prepared under Rules 3 and 5 of the Preservation and Destruction of Records of the office of the Prothonotary and Senior Master appearing in Appendix III of the Rules. Based on the aforesaid circumstances, it was the contention of the learned Attorney General that it would have to be held that the suit is not pending. The learned Attorney General submitted that it is the duty of the Court to maintain the record in terms of the Rules and if the record is not so maintained and the papers are untraceable, then the Defendants cannot be made to suffer for the negligence of the office. In support of his said submission, the learned Attorney General relied upon the Judgment of the Division Bench of the Allahabad High Court in the case of U.P. State Road Transport Corporation, Lucknow v/s Smt. Geeta Devi reported in AIR 1983 Allahabad 124 . Paragraph 12 of the said Judgment, according to the learned Attorney General, is material and the same is reproduced herein under :-
::: Downloaded on - 09/06/2013 17:12:07 :::20 NMS-164.11 "12 It may further be stated that is 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 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.
The learned Attorney General further contended that it is for this Court on its judicial side to order re-construction of the record if the eventuality so arises and it cannot be done by an Officer of the Court by an administrative order as the Court has to be satisfied that the record in fact is lost or untraceable so as to warrant its re-construction. In support of his said submission, the learned Attorney General relied upon the judgment reported in 1987 (2) K L T 537 in the case of Kunhu Moideen v/s Narayanan Adiyodi . Paragraphs 8 and 10 of the said Judgment are material and the same are re-produced herein under :-
"8 This power is relevant to do the right and to undo ;the wrong in the course of administration of justice. If that be so we can safely start with the proposition that there is inherent power in every court to reconstruct its own records and help parties to proceedings before it to get extricated from situation brought about by destruction of court records, not attributable to them but due to vis major or act of state, like destruction under orders of court, etc. The appellate court in the exercise of its inherent power is equally competent to reconstruct the records of the court from which the appeal arises because the hearing of an appeal under the procedural law of the country is in the nature of re-hearing and therefore the appellate court may make such order as the court of first instance could have made, had the case been heard by the first court on the date on which the appeal was heard.::: Downloaded on - 09/06/2013 17:12:07 :::
21 NMS-164.11 10 To invoke this jurisdiction of the court, the party however, has to satisfy the court that his attempts to get the records which have been destroyed have not been successful. The court on verification finds that the records have been destroyed, shall take steps to reconstruct the records.
The learned Attorney General also made submissions as regards the manner in which the Plaintiffs have been represented by their advocate Udwadia & Udeshi.
The learned Attorney General submitted that in respect of the representation of the Plaintiffs by the advocates Udwadia and Udeshi, there are contradictory statements made from time to time.
However, the issue as regards representation of the Plaintiffs by the said advocates Udwadia and Udeshi and whether the said advocates could have represented the Plaintiffs in the process of re-construction of the record would be dealt with independently in the latter part of this Judgment.
12 Per contra, it was submitted by Shri Chagla, the learned Senior counsel appearing for the Plaintiffs that unless the order is produced either of the suit being dismissed for default, withdrawn, dismissed or decreed, it cannot be said that the suit has been disposed of and is therefore not borne on the record of this Court. The learned senior counsel would contend that this Court as a court of record can order the reconstruction under its plenary powers and in support of the said submission relied upon the Judgment of the Apex Court in AIR 2000 SC ::: Downloaded on - 09/06/2013 17:12:07 ::: 22 NMS-164.11 540 in the matter of M.M.Thomas u/s State of Kerala and anr. and the judgment of the Madras High Court reported in AIR 1923 Madras 647 in the matter of Marakkarutti and ors v/s Veeran Kutty and ors. The Learned Senior Counsel placed reliance on the circular dated 9/8/1995 of this Court which circular according to him was issued to cover contingencies as in the instant case.
The learned senior counsel would contend that merely because the number of the above suit does not appear in the lists of the pending suits, it cannot be presumed that the suit has been disposed of or dismissed in default. The learned senior counsel submitted that too much reliance cannot be placed on the said lists of the pending suits as in the list of year 2010, the number of the above suit does not appear though the records have been reconstructed in the year 2009 and the suit has thereafter progressed. The learned senior counsel would contend that save and except the notice of preponement in respect of the hearing before the Master and Asstt. Prothonotary, the Defendants were given notice for all other dates. The Defendants have also been served with the copies of the reconstructed record and therefore it cannot be said that the reconstruction has been done behind the back of the Defendants. The learned senior counsel would further contend that liberty was granted to the Defendants by the Division Bench by its order dated 9/4/2010 in terms of clause 7(iii) to bring to the notice of the learned Single Judge only if they are in a position to establish either from an order passed by the learned trial Judge or by an administrative order of the Prothonotary and Senior Master that the suit was dismissed in default. The learned senior counsel contended that the instant Motion has been moved without the Defendants being in a position to ::: Downloaded on - 09/06/2013 17:12:07 ::: 23 NMS-164.11 establish from any order passed by any learned Single Judge or any administrative order of the Prothonotary that the suit in fact has been dismissed in default. The learned senior counsel further contended that the challenge now sought to be raised by the learned Attorney General appearing for the Defendant No.1 and the learned Additional Solicitor Generals appearing for the Defendant No.2 and 3 based on the lists of the pending suits has already been dealt with by Kathawala, J. in his order dated 10/2/2010 and therefore the said grounds are no more available on the application of the principles of Res-judicata as the said principles are available vis-a-vis two stages of the same proceeding. Since before the Division Bench only limited relief sought was as regards inspection, the order passed by Kathawala, J in respect of reconstruction of record has attained finality, subject to clause 7(iii) of the order of the Division Bench dated 9/4/2010. The learned senior counsel would contend that the doctrine of merger would not apply in the instant case in view of the limited challenge raised by the Defendants in the Appeal, in support of the said submission, the learned senior counsel relied upon the judgment of the Apex Court reported in (2010) 11 SCC 374 in the matter of MRF Limited v/s Manohar Parrikar and ors. and especially paragraph 38 thereof. The said para 38 is reproduced herein under :-
"38 In our view, the principle of merger essentially refers to the merging of the orders passed by the superior courts with that of the orders passed by a subordinate court. This Court in Shankar Ramchandra Abhyankar v Krishnaji Dattatreya Bapat has laid down the condition as to when there can be a merger of the orders of the superior court with that of the orders passed by the lower court. This Court stated, that, if any judgment is pronounced by the superior court in the exercise of its appellate or revisional ::: Downloaded on - 09/06/2013 17:12:07 ::: 24 NMS-164.11 jurisdiction after issue of a notice and a full hearing in the presence of both the parties, then it would replace the judgment of the lower court. Thus, constituting the judgment of the superior court the only final judgment to be executed in accordance with law by the court below. The merger is essentially of the operative part of the order and the principle of merger of the order of the subordinate court with the order of the superior court cannot be applied when there is no order made by the superior court on merits and the controversy between the parties has not been looked into by the superior court."
The learned Senior Counsel submitted that the Defendant No.1, having accepted in Writ Petition No.3110 of 2005 filed by them that the suit filed by the Mortgagors for redemption was pending in this Court, cannot now question the reconstruction of the record on the ground now sought to be urged.
13 The learned senior counsel further submitted that the Defendants having participated in the further proceedings of the suit viz. in the framing of Issues and have even cross-examined the two witnesses of the Plaintiffs, the Defendants are now therefore estopped from challenging the re-construction of the record on the application of the principles of waiver and acquiescence. The learned senior counsel lastly contended that reconstruction of record is a matter of procedure and it is well settled that the procedure is a hand maid of justice and ultimately this Court is bound to see that the justice is done to the parties.
The learned senior counsel relied upon the judgment of the Apex Court reported in (1998) 5 SCC 123 in the matter of G Raj Mallaiah and anr v/s. State of Andhra Pradesh in support of his contention that a party should not be made to ::: Downloaded on - 09/06/2013 17:12:07 ::: 25 NMS-164.11 suffer for the fault of the Court and also relied upon the same judgment of the Allahabad High Court in the U P State Road Transport Corporation (Supra).
14 I have heard the learned counsel for the parties. In the light of the submissions made by the learned senior counsel Shri Chagla appearing on behalf of the Plaintiffs, the question which arises is whether the issue of reconstruction of the record in the above suit is concluded in view of the order of Kathawala, J dated 10/2/2010 as also followed by the order of the Division Bench dated 9/4/2010.
It is pertinent to note that the said Notice of Motion No.228 of 2010 was filed by the Defendant No.1 seeking stay of the above suit till the out come of the proper inquiry by calling for the records of the Department viz. Minutes Book etc. including list of the pending suit as on 26/08/2008 existing on the file of the said department and other records ascertaining whether the reconstruction of the proceedings as allowed by the Master and Asstt. Prothonotary vide order dated 10/2/2009 was correct and in the interest of justice. It is required to be noted that Kathawala, J. in the said order dated 10/2/2010 has observed that the issue of re-construction of the record raised on the earlier occasion was rejected by this Court by its order dated 8/12/2009 and 4/1/2010. The same finds place in Para 16 of the said order. It is also required to be noted that Shri Patel, the learned counsel appearing on behalf of the Defendant No.1 had admitted before Kathawala, J that he cannot raise the issue of re-construction of ::: Downloaded on - 09/06/2013 17:12:07 ::: 26 NMS-164.11 record once again and that he is also not submitted that the cross examination of P.W.1 which he is being recorded should be stayed.
15 The only issue pressed before the Division Bench in Appeal No.124 of 2010 was as regards the Appellant ie. the Defendant No.1 herein seeking inspection of the order sheets pertaining the suit from the Minutes Book maintained by the Registry on the Original Side with a view to ascertain as to whether there is any order by which the suit has been dismissed in default. The finding recorded by Kathawala, J taking into consideration the list dated 26/08/2008 as also the list date 30/1/ 2010 as also taking into consideration the factum of the record being torn etc were never questioned and no reliefs were claimed by the Defendants as regards the said finding. The Appellate Court in Para 8 of its order has specifically recorded that the Appellants have not sought any other order or no other point is pressed. Hence assuming that Dharmadhikari, J in his order dated 8/12/2009 had observed that the said order would not conclude the objection of Shri Rajguru that the records are not constructed in accordance with law. The objection as regards re-construction of record at least in so far as the challenge based on the list of pending suits of 2008 and 2010 as also torn pages was concluded by Kathawala, J. The Appellate Court as stated herein above, by clause 7(iii) of his order had only granted liberty to the Appellant i.e. the Defendant No.1 to approach the Court only if it is able to establish either from the order passed by the trial Court or by the administrative order of the Prothonotary that the suit was dismissed in default. By clause 7(iv), ::: Downloaded on - 09/06/2013 17:12:07 ::: 27 NMS-164.11 the Appellate Court had provided that in the event if no such order or material is found on record indicating the dismissal of the suit in default, it was agreed that the hearing of the suit shall then proceed in accordance with the time schedule that may be laid down by the learned Single Judge. Admittedly, the instant Motion has been filed not relying upon any judicial order or administrative order indicating that the suit has been dismissed in default. But as indicated above the reliefs in the Motion are sought to be pressed by relying upon the circumstances adverted to herein above by the learned Attorney General. In my view, in the absence of such order the Defendants are bound by clause 7(iv) of the order of the Division Bench dated 9/4/2010 and are therefore required to be proceed to trial.
16 The learned Attorney General laid much store on the list of the pending suits dated 31/1/1992 which list was obtained by the Defendants pursuant to the R T I inquiry. It is the submission of the learned Attorney General based on the said list that even in the list of 1992 the above suit did not figure and, therefore, it lends credence to the case of the Defendants that the above suit in fact might have been disposed of prior to the year 1992. In my view, the said list of the year 1992 does not carry the case of the Defendants any further. It is required to be borne in mind that Kathawala, J has considered the list dated 26/8/2008 and the list dated 30/1/2010 as also was made aware of the fact that the registers of the Minutes Book had torn pages especially relating to the suit in the year and has thereafter recorded his finding. Hence the list of 1992 which ::: Downloaded on - 09/06/2013 17:12:07 ::: 28 NMS-164.11 the Defendants have obtained pursuant to the R T I inquiry would in my view make no material difference in so far as the question as to whether the suit was in fact disposed of. Merely because the suit does not figure in the said three lists and pages of the Minutes Book are torn in my view cannot lead to a presumption that the suit has been disposed of or dismissed in default.
It cannot be presumed that just because the above Suit does not figure in the lists of the pending suits, that it must have been dismissed in default. One cannot proceed on the basis of assumptions and presumptions in a matter as serious as the fate of a suit. The Division Bench, therefore, considering the seriousness of the matter had allowed the Defendants to take inspection of the record of this Court as mentioned in Para 7 of its order dated 9/4/2010.
17 In my view, even if it is assumed that the reconstruction of the record by order dated 10/2/2009 is open to scrutiny despite the order of Kathawala, J dated 10/2/2010, the said challenge on the ground of the first 4 circumstances adverted to by the Attorney General, (reference Para 11 herein above) no more survives in view of the order of the Appellate Court dated 9/4/2010 especially in view of the fact that the Defendants have not found any judicial order or administrative order dismissing the suit in default. In my view, therefore, the Defendants are not entitled to any reliefs in the above Motion in the absence of such an order.
::: Downloaded on - 09/06/2013 17:12:07 :::29 NMS-164.11 18 In the light of the submissions made by the learned senior counsel Mr.Chagla appearing for the Plaintiffs the issue has to be looked at from the another angle namely the waiver and acquiescence on the part of the Defendants.
It is pertinent to note that the process of the reconstruction of the record was completed in August 2009. Thereafter the issues were framed in September 2009. The Defendants had filed Chamber Summons No.1999 of 2009, and an order came to be passed for framing an additional issue. The prayer for stay of the hearing of the suit came to be specifically rejected by a learned Single Judge of this Court. The Defendants have thereafter cross examined two witnesses of the Plaintiffs. The Defendants have therefore participated in the further proceedings in the above suit and by such participation can be said to have waived their right if any to challenge reconstruction of the record and can also be said to have acquiesced in the reconstruction of the record. In my view, therefore, there is no merit in the challenge to the order dated 10/2/2009 on the ground that the reconstruction was not warranted in view of the fact that the suit might have been dismissed in default.
19 In so far as prayer clause (b) is concerned, in my view it is not possible to issue a declaration in the nature sought vide the said prayer clause in the absence of any order either judicial or administrative. The said declaration cannot be issued on the basis of the circumstances on which reliance was placed by the learned Attorney General.
::: Downloaded on - 09/06/2013 17:12:07 :::30 NMS-164.11 In so far as prayer clause (c) is concerned, the same has its basis in the direction contained in Para 18 of the said Order dated 10/2/2010 of Kathawala, J. The direction mandates the learned Prothonotary and Senior Master to submit an explanation to the Court why the relevant regulation/s is/are torn and papers missing therefrom and who according to her is responsible for the same, and what action she proposes to take against the erring officer. As can be seen, the explanation was to be submitted to the Court, and therefore the Defendant No.1 would not be entitled to relief claimed by prayer clause (c).
20 There is another facet of the challenge to the reconstruction of the records by the Defendants. The said challenge is on the ground that the advocates for the Plaintiffs M/s.Udwadia and Udeshi were not authorised at the relevant time i.e. August 2008 to represent the Plaintiffs. It is required to be noted that the said aspect has not been dealt with by the Master and Asstt.Prothonotary in his order dated 10/2/2009 and though the said issue was sought to be raised before the learned Single Judges before whom the suit appeared on various occasions, the orders disclose that the said aspect has not been specifically dealt with by the learned Single Judges. It is the submission of the learned Attorney General that the issue of the authority of M/s.Udwadia and Udeshi is a serious matter which had not been considered by the officer of this Court whilst ordering reconstruction as well as the learned Judges before whom the matter came up. In view of the submissions made by the learned Attorney ::: Downloaded on - 09/06/2013 17:12:07 ::: 31 NMS-164.11 General on the said aspect it is necessary to deal with the said issue as it is the contention of the learned Attorney General and the learned Additional Solicitor General Shri Tankha that the said issue goes to the root of the matter inasmuch as if the said advocates M/s.Udwadia & Udeshi were not entitled to represent the Plaintiffs, the record could not have been allowed to be reconstructed at their behest. Shri Vahanvati, the learned Attorney General appearing for the Defendant No.1, and Shri Tankha, the learned Additional Solicitor General appearing for the Defendant No.3 made the following submissions:-
The learned Attorney General submitted that the advocates M/s.Udwadia and Udeshi did not have authority to represent the Plaintiffs as they were not holding any vakalatnama on the day when the order for reconstruction of the record and subsequent orders were passed.
The learned Attorney General submitted that contradictory statements have been made on behalf of the Plaintiffs as regards the filing of vakalatnama from time to time by the said advocates M/s.Udwadia and Udeshi at various stages. The learned Attorney General submitted that initially the stand which has been taken by the Plaintiffs is that the Vakalatnama has been filed in the above suit in the year 1997 and at the same time it has been stated that filing of vakalatnama was a curable defect. Thereafter the same learned counsel made a statement before this Court in Notice of Motion No.3386 of 2010 filed by the Plaintiffs that the vakalatnama is in the safe custody of the learned Prothonotary ::: Downloaded on - 09/06/2013 17:12:07 :::
32 NMS-164.11 and Senior Master.
The learned Attorney General relying upon the averments made in the affidavit in support 19/1/2011 and the replies thereto in the affidavit in reply of the Plaintiffs dated 14/2/2011 submitted that the said replies can only lead to only one inference that the advocates M/s.Udwadia and Udeshi were not authorised to represent the Plaintiffs at the relevant time. The learned Attorney General drew my attention to Para 34 of the affidavit in support and Para 50 of the affidavit in reply of the Plaintiffs to demonstrate the manner in which the Plaintiffs have sought to treat the issue as regards filing of vakalatnama. The said Para 34 of the affidavit in support and its reply in Para 50 of the affidavit in reply are reproduced herein below for the sake of convenience :-
Averments in Affidavit in Support "34 I say and submit that this Hon'ble Court vide its order dated 23.08.2010 disposed of the Chamber Summons Nos.835 of 2010 and 836 of 2010 extending the time of completing the inspection of the Minutes Books pertaining to the order passed by the concerned Judge from 1977 to 2008 and further directed to complete the inspection within a period of 3 months from the date of said order. The Hon'ble Court further granted stay of further proceeding in the Suit till 6th December 2010. It is pertinent to mention here that this Hon'ble Court while disposing of the Chamber Summons in Para 7 of the order observed that "...... We are of the view that it would not appropriate and proper in the interest of justice to allow the trial to proceed when the basis issue as to whether the Suit continues to remain pending on the file of this Court is still to be resolved. This assumes some significance because of the circumstances that in the Suit of 1969 the entire original record is untraceable.
The Plaintiffs themselves do not appear to have taken ::: Downloaded on - 09/06/2013 17:12:07 ::: 33 NMS-164.11 steps to prosecute the Suit until 2008. In the Suit register of 1969, the page relating to the Suit in question, the Court is informed by the Counsel, has been town away."
It is pertinent to mention here that the Counsel appearing for the Defendants while making oral submissions raised the issue in regard to non filing of Vakalatnama by the Counsel for the Plaintiffs appearing. The Counsel appearing for the Plaintiffs stated that the Vakalatnama has already been filed in 1997 it is further submitted that the said statement of the councel appearing for the Plaintiffs is contrary to the reply submitted by the Plaintiffs to Chamber Summons Nos.835 of 2010 and 836 of 2010. Hereto annexed and marked as Exhibit-W is a true copy of order dated 23.08.2010 passed by this Hon'ble Court in Chamber Summon No.835 of 2010 and 836 of 2010.
ig Reply of the Plaintiffs.
50 With reference to paragraph 34, I say that the
averments made in the present paragraph are repetitive in nature and have been replied in the earlier paragraphs"
21 The learned Attorney General relied upon the certified copies of the vakalatnamas which were on record in the above suit in which the vakalatnama of Udwadia and Udeshi on behalf of the Plaintiffs does not find place. The learned Attorney General further submitted that the fact that the vakalatnama was filed in the 2010 is amply clear from the admission of the Plaintiffs in Para 48 of the affidavit in reply to the above Motion. The learned Attorney General submitted that the advocates Udwadia & Udeshi could not have represented the Plaintiffs from August 2008 as by that time out of 15 Plaintiffs 9 were already dead and there were only 6 surviving Plaintiffs. The Attorney General submitted ::: Downloaded on - 09/06/2013 17:12:07 :::
34 NMS-164.11 that considering the manner in which the Solicitors conduct their affairs it is unimaginable that the brief though transferred to M/s.Udwadia and Udeshi from Crowfard Bayley and Co, the said M/s.Udwadia and Udeshi could not produce any correspondence in that behalf, more especially in respect of the vakalanama, as the said vakalanama was claimed to be filed on the NOC being obtained from Crowfard Bayley and Co.
22 On behalf of the Defendant No.3, Shri Tankha, the learned Additional Solicitor General supported the submissions made by the learned Attorney General, but submitted that in terms of Order III Rules 1 and 4 of the Code of Civil Procedure the advocate can represent the client only if he is properly authorised. According to the learned Additional Solicitor General whether M/s.Udwadia and Udeshi were properly authorised or not therefore goes to the root of the matter and if they were not so authorised then the order of reconstruction of the record passed at their behest cannot be sustained.
23 The learned Attorney General in support of his submissions relied upon the following Judgments :-
1] In the matter of Uday Shankar Triyar v.s Ram Kalewar Prasad Singh and anr. reported in (2006) 1 SCC 75. Para 17 of the said judgment is material and the same is reproduced herein under :-::: Downloaded on - 09/06/2013 17:12:07 :::
35 NMS-164.11 "17 Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :-
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;
iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant;
2] Salem Advocate Bar Association Tamil Nadu v/s Union of India reported in (2008) 17 SCC 37. Para 1 of the said Judgment is material and the same is reproduced herein under :-
"The Registry has submitted a report that an affidavit on behalf of the State of Nagaland has been filed but the learned counsel has not filed vakalatnama, Copies of the affidavit have also not been served upon the amicus. Therefore, the reply is ignored."::: Downloaded on - 09/06/2013 17:12:07 :::
36 NMS-164.11 It is the submission of the learned Attorney General relying upon the said authorities that though filing of vakalatanama can be procedural at times, it is held to be vital if the parties having notice of the same have failed to meet the requirements.
24 Per contra, it is submitted by Shri Chagla the learned senior counsel appearing for the Plaintiffs that the Defendants have unnecessarily raised a hue and cry as regards, whether the vakalatnama has been filed by the Plaintiffs or not and whether the advocates M/s.Udwadia and Udeshi were properly authorised or not. The learned senior counsel submitted that assuming that the vakalatnama was not filed, the same at the highest would be a procedural defect and cannot come in the way of the Plaintiffs pursing their rights or this Court doing substantive justice.
The learned senior counsel submitted that even the vakalatnama given at a later point of time would relate back to the date when the appearance was made on behalf of the concerned party, as according to the learned senior counsel, it is well known in our system that appearance can be made on behalf of the parties by giving an undertaking that the vakalatnama would be filed. The learned senior counsel would contend that whether the vakalatnama was filed or not would not come in the way of the Plaintiffs in pursuit of their substantive rights and to cause injustice to them. The learned senior counsel submitted that ::: Downloaded on - 09/06/2013 17:12:07 ::: 37 NMS-164.11 procedure is a hand maid of justice and can never be used as a tool to deny justice or perpetuate injustice. The learned senior counsel also relied upon the same judgment of the Apex Court in Uday Shankar's case (supra) in support of the said submissions.
CONSIDERATION:
25 In so far as appearances of the parties in any proceeding is concerned, Order III of the Code of Civil Procedure regulates the same. It is fundamental to our system that an advocate can act for any person in any court if he is authorised by such person by a document in writing signed by such person or by his recognized agent. The logical corollary therefore is that unless an advocate is so authorised he cannot act.
In the instant case as submitted by the learned Attorney General contradictory statements have been made from time to time at various stages.
Initially a statement came to be made that vakalatnama was filed in the year 1997, and simultaneously it was stated that filing of vakalatnama is a curable defect. Thereafter a statement came to be made that the vakalatnama is in the safe custody of the Prothonotary and Senior Master. It is pertinent to note that in the affidavit in reply to the above Motion in para 48 the vakalatnama it has been stated that the vakalatnama has been filed on 20/12/2010. The vakalatnama of the Plaintiffs which was obtained by the defendant No.1 pursuant to the RTI ::: Downloaded on - 09/06/2013 17:12:07 ::: 38 NMS-164.11 enquiry made by it shows that the same bears the date of 20/12/2010. It is significant to note that in the affidavit in support, specific averments have been made questioning the authority of the said advocates M/s.Udwadia and Udeshi to appear in the matter. The said averments have not been dealt with and evasive replies have been given by the Plaintiffs so as to skirt the issue. Though it is well settled that the procedural defects and irregularities cannot come in the way of substantial justice, in my view, lack of authority on the part of the advocates M/s.Udwadia and Udeshi at the relevant time when process of reconstruction of the record was undertaken cannot be brushed aside under the carpet by giving it a cloak of a procedural defect.
In a matter where the issue of the reconstruction of the record is a contentious issue between the parties, the authority of the advocates for the Plaintiffs to represent them assumes importance. In fact as submitted by both the learned Advocate General and the learned Additional Solicitor General Shri Tankha the said fact goes to the root of the matter. If M/s.Udwadia and Udeshi were not entitled to represent the Plaintiffs at the relevant time, as they did not have authority to do so, then the order of reconstruction of the record could not have been passed at their behest. It is another matter that the surviving Plaintiffs could have applied for reconstruction in their individual capacity, but that would not clothe the reconstruction of record done at the behest of M/s,Udwadia and Udeshi with any legal sanctity.
::: Downloaded on - 09/06/2013 17:12:07 :::39 NMS-164.11 26 Another very glaring and disturbing aspect is that though the advocates M/s.Udwadia and Udeshi claimed that the brief in the above suit was transferred from M/s. Crowfard Bayley and Co. to them, but most surprisingly they have not produced any record or correspondence in that respect. The said fact as submitted by the learned Attorney General belies the conduct of Solicitors who conduct suits on behalf of their clients as Solicitors by practice record every minute developments. The said fact of the absence of record in respect of filing of vakalatnama, therefore does not inspire confidence. It is also required to be noted that the deponent of the affidavit in reply has in terms accepted that their advocates M/s. Udwadia and Udeshi have no record of the memorandum of appearance filed on behalf of the Plaintiffs. It is also required to be noted that there are at present only six surviving Plaintiffs out of the original fifteen Plaintiffs who had filed the above Suit. Therefore, how M/s.Udwadia and Udeshi could represent the dead Plaintiffs without bringing their heirs on record also begs the question.
27 As indicated above, issue regarding vakalatnama has not been dealt with by the Administrative Officer of this Court whilst permitting reconstruction of record by order dated 10/2/2009 and also has not been dealt with by the learned Single Judges or the Hon'ble Division Bench before whom the matter was placed at various stages.
::: Downloaded on - 09/06/2013 17:12:07 :::40 NMS-164.11 28 Since no enquiry has been conducted in the matter of the authority of M/s. Udwadia and Udeshi to represent the Plaintiffs at the time when the process of reconstruction was started. In my view therefore a proper enquiry is required to be conducted in respect of this aspect of the matter, as the conscience of this Court has to be fully satisfied that M/s Udwadia and Udeshi had in fact the authority to appear for the Plaintiffs in August 2008 when the process of reconstruction of record was triggered of.
I am of the view that the order dated 10/2/2009 passed by the Master and Asstt. Prothonotary in respect of which the relief is sought in the present Motion need not be set aside at present but same would have to be kept in abeyance till such time as the enquiry in respect of the authority of M/s.Udwadia and Udeshi to represent the Plaintiffs in August 2008 is completed.
In my view, considering the seriousness of the matter, it would be appropriate to direct the learned Prothonotary and Senior Master of this Court to conduct the said inquiry and arrive at a decision in respect of the order dated 10/02/2009 within a period of ten weeks from date. The fate of the order dated 10/02/2009 would be contingent upon the result of the said enquiry and the decision that will be taken by the learned Prothonotary and Senior Master as above. The parties would be entitled to make their submissions in the said enquiry. The parties to appear before the learned Prothonotary and Senior Master on 3rd May 2011 at 3.00 p.m. and the learned Prothonotary and Senior Master ::: Downloaded on - 09/06/2013 17:12:07 ::: 41 NMS-164.11 thereafter to fix the schedule as per her convenience. It would be open for the learned Prothonoary and Senior Master to take a decision either recalling the said order dated 10/02/2009 allowing reconstruction at the behest of the Advocates M/s.Udwadia and Udeshi, or confirming it. The order of the learned Prothonotary and Senior Master along with the findings recorded in the enquiry to be placed before the learned Single Judge, who would be hearing the above Suit. Based on the decision of the learned Prothonotary and Senior Master, it would be open to the parties to take appropriate steps against the said decision.
Though this Court is conscious of the fact that the suit is of the year 1969, and on earlier occasions stay of the hearing of the Suit had been refused, in my view, it is necessary to stay the further hearing of the suit, pending the enquiry by the learned Prothonotary and Senior Master as the said issue goes to the very root of the matter. Hence pending the said enquiry and till the order is passed by the learned Prothonotary and Senior Master, as directed herein above, the further hearing of the above suit is stayed.
29 Before parting it is necessary to make the following observations:-
The loss of record as submitted by the learned Additional Solicitor General Shri Khambatta is undoubtedly a very serious matter, especially in the teeth of the fact that the Rules enjoin upon the office to preserve the items mentioned in Part-I of Appendix-III permanently. Therefore to avoid situations of the kind as in the instant matter the office would have to devise some modality ::: Downloaded on - 09/06/2013 17:12:07 ::: 42 NMS-164.11 so that the record is maintained for posterity, and at least the decree/orders disposing of the proceedings are maintained separately in a manner, beyond the scope of any wrong doing or mischief.
In so far as the reconstruction of record is concerned, as can be seen the same is governed by the circular dated 9/8/1995, which was issued precisely to cover situations of loss of record. If there is a consensus between the parties the reconstruction of the record in terms of the circular should pose no problems. However, if there is an issue between the parties, as regards the reconstruction, may be on whatever grounds, in my view, it is necessary to conduct an enquiry as regards the said grounds by giving opportunity to the parties and thereafter arrive at a decision whether to order reconstruction or not.
30 The above Notice of Motion is accordingly disposed of in terms of the above.
(R M SAVANT, J) ::: Downloaded on - 09/06/2013 17:12:07 :::