Madras High Court
S.S.Neelamegam vs R. Jeyapal on 1 March, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/03/2011 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Civil Revision Petition (NPD) No.204 of 2004 S.S.Neelamegam ... Petitioner Vs 1. R. Jeyapal 2. Yasotha 3. S.S.Athimoolam ... Respondents Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure against the fair and decreetal order dated 16/7/2004 made in I.A.No.50 of 2003 in O.S.No.712 of 1993 on the file of III Additional Subordinate Judge, Madurai. !For petitioner ... Mr.B.Bommayan ^For respondents ... Mr.S.Ramesh alias Ramiah for R.R.1 and 2. - - - - - :ORDER
The petitioner/plaintiff has filed the present Civil Revision Petition as against the order dated 16/7/2004 in I.A.No.50 of 2003 in O.S.No.712 of 1993 passed by the learned III Additional Sub-Judge, Madurai.
2. The trial Court while passing orders in I.A.No.50 of 2003 in O.S.No.712 of 1993 on 16/7/2004 has among other things observed that "the first petitioner while appearing before the Court on 7/7/2004 has stated that the second petitioner therein (S.S.Adimoolam, his brother) has expired seven years before and hence, the application filed on their behalf is not legally maintainable and accordingly dismissed the application.
3. The Learned counsel for the first petitioner/first petitioner/first plaintiff urges before this Court that the order of the trial Court in dismissing I.A.No.50 of 2003 in O.S.No.712 of 1993 on 16/7/2004 is contrary to law and the same is vitiated by material irregularity.
4. It is the contention of the learned counsel for the petitioner/plaintiff that the trial Court ought to have allowed I.A.No.50 of 2003 filed by the first petitioner/first plaintiff and another to advance the substantial cause of justice.
5. Advancing his arguments, the learned counsel for the petitioner contends that the trial Court failed to appreciate the fact that the civil revision petitioner/first plaintiff and his brother Adimoolam, who expired during the pendency of the proceedings filed a suit for declaration and permanent injunction and also for the relief of mandatory injunction against the respondents/defendants and the trial Court has failed to appreciate an important fact that the petitioner projected C.M.A.No.68 of 1993 as against the dismissal of injunction application in I.A.No.150 of 1993, but, this aspect of the matter has not been taken into account in a proper perspective by the trial Court which has resulted in serious miscarriage of justice.
6. The learned counsel for the petitioner takes a plea that the trial Court has wrongly dismissed the suit for non-payment of batta on 24/6/1994 and in fact, in Restoration Application in I.A.No.50 of 2003, notice has been given to the other side and the Restoration Petition has also been filed in time.
7. According to the learned counsel for the petitioner, the Restoration Application in I.A.No.50 of 2003 has been filed on 18/7/1994, which is entered in 19th register bearing No.25677 and latter, the concerned Clerk has stated that the Restoration Petition has been misplaced in the Office and that the petitioner has been waiting that the Restoration Application will be traced out by the concerned Clerk and the same will be numbered.
8. Also, the learned counsel for the petitioner submits that the revision petitioner has not traced C.M.A.No.68 of 1993 on the file of the learned First Additional District Judge, Madurai mentioning all the facts of dismissal of suit, filing of Restoration Application, making an entry in 19th Register, the representation of the concerned Clerk regarding the misplacement of application, etc., and therefore, the other side learned Counsel has known about the filing of the Restoration Application in time, etc.
9. The learned counsel for the petitioner brings it to the notice of this Court that the petitioner filed W.P.No.13276 of 1995 before this Court on 15/7/2002, this Court has placed orders directing both parties to file necessary application before the Sub-Court in O.S.No.712 of 1993. Indeed, the learned counsel for the petitioner contends that I.A.No.50 of 2003 has been filed on 17/7/2002 before the learned Sub-Judge, Madurai, but the learned Special Judge, Madurai has wrongly come to the conclusion that I.A.No.50 of 2003 has been filed on 10/2/2003 i.e., after nine years.
10. The principle contention advanced on behalf of the petitioner is that for the misplacement of papers by the Court office, the petitioner is not in any way connected with or responsible and therefore, for the mistake committed by the Court Staff, the petitioner cannot be penalised in any manner whatsoever. In any event, the application for I.A.No.50 of 2003 for reconstruction of Restoration Application filed in 19th Register bearing No.25677 on 18/7/1989 ought to have been allowed by the trial Court and in the interest of justice, the Revision Petition filed by the petitioner is to be allowed to promote substantial cause of justice.
11. In response, it is the contention of the learned counsel for the respondents/defendants that O.S.No.712 of 1993 has been filed before the trial Court on various dates for paying batta to the respondents/defendants, but the plaintiffs in the suit have not taken any steps to issue summons and the suit has been dismissed by the trial Court after providing sufficient opportunity to the parties.
12. Further more, it is the contention of the learned counsel for the respondents that the plaintiffs have to prove whether the Restoration Application has been entered in 19th Register bearing No.25677 and the application has been filed on 18/7/1994. But the reconstruction petition has been filed only on 10/2/2003, which is after a gap of nine years and that the delay in filing the said application after a lapse of nine years has not been explained and hence, I.A.No.50 of 2003 is not maintainable.
13. The learned counsel for the respondents/defendants cites a decision of this Court in Dr.K.SRINIVASAN (PLAINTIFF) Vs. P.SRINIVASAN (DEFENDANT) reported in (1989) 1 LAW WEEKLY - 195, wherein at page Nos.195 and 196, it is held as follows:-
"The inherent power of the Court to direct reconstruction of the records in certain cases has been recognised in decided cases. The principle on which the decisions are based is that no man should suffer by an act of Court. The latin maxim "Actus Curiae Neminum Non-Gravabit" is the foundation for the ratio of the above decisions. The entire case law on the subject of reconstruction of records has been clearly traced in 1983 Allahabad 124 by the Division Bench.
The prayer for reconstruction in this case cannot be granted. The term 'reconstruction' by itself shows that an occasion for reconstruction can arise only if the records are lost by the Court while they are in the custody of the Court. There is no question of reconstruction when the papers have been returned to the advocate and when they are in the custody of the party or his counsel.
The inherent power of the Court should not be exercised to enable a party to escape the consequences of his own negligence. If the applicant is permitted to represent the papers without the requisite Court-fee on the plaint, it will tantamount to conferring a premium upon his negligence. Such an order will also open the flood-gates of perjury and litigants will start filing applications with different sorts of versions to avoid payment of appropriate Court fee. The Court cannot in each case be embarking on an enquiry as to the truth or otherwise of the versions put forward by the litigants. The exercise of inherent power should be passed on sound judicial discretion and it should not result in ad hoc or arbitrary orders giving rise to undesirable consequences."
14. He also relies on the decision in CHANDRASEKAR AND ANOTHER Vs. THE INSPECTOR OF POLICE, RAJAKADAI POLICE STATION, DHARMAPURI DISTRICT reported in CD LAW JOURNAL in 1995 MHC 575 = 1995 1 MLJ - 303 (Cri.), wherein, it is observed as follows:-
"Several questions arise for consideration. Was there delay? How long was the delay? Was the delay inevitable having regard to the nature of the case, the sparse availability of legal services and other relevant circumstances? Was the delay unreasonable? Was any part of the delay caused by the Wilfulness or the negligence of the prosecution agency? Was any part of the delay caused by the tactics of the defence? Was the delay due to causes beyond the control of the prosecuting and defending agencies? Did the accused have the ability and the opportunity to assert his right to a speedy trial? Was there a likelihood of the accused being prejudiced in his defence? Irrespective of any livelihood of prejudice in the conduct of his defence, was the very length of the delay sufficiently prejudicial to the accused? Some of these factors have been identified in Barker v. Wingo, 33 L.Ed.2d 101. A host of other questions may arise which we may not be able to readily visualise just now. The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty guaranteed by Art.21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as acting fairly' is of the essence of the principles of natural justice (In re K.(H) (an infant), (1967) 1 AII.E.R.226: (1967) 2 A.B.617 and a fair and reasonable procedure' is what is contemplated by the expression 'procedure established by law' in Art.21 Maneka Gandhi v.Union of India, (1978) 2 S.C.J.312:A.I.R.1978 S.C.597."
15. It is to be noted that for the mistake of either the Court or the Court Staff, no litigant should suffer or be penalised (when there is no fault attributed to him). Admittedly, every Court of Law has inherent powers to reconstruct its record in certain cases, which is universally a recognised one. The exercise of inherent powers must be employed by a Court of Law on sound judicial discretion. When technical considerations and deliverance of substantial justice are pitted against each other, then cause of deliverance of substantial justice is to be preferred overwriting technicalities. In short, the Court of Law must adopt a pragmatic, meaningful, practical and rational commonsense approach while dealing with the application to reconstruct the Restoration Application filed by a litigant and that too where there is an entry in 19th Register with a specific principle for vouchsafing the filing of the same.
16. Viewed in that perspective, in the instant case, the Civil Revision Petitioner/first plaintiff/first petitioner and his brother (though deceased) have filed I.A.No.50 of 2003 before the trial Court in 19th Register on 18/7/1994 in S.R.No.25677. The same is not denied by the respondents/defendants. Though the respondents in their counter to I.A.No.50 of 2003 have stated that "the Civil Revision Petitioner and another have not stated whether they have taken any steps against the concerned Clerk and the fact has been brought to the Superior Officer, etc.", in the considered opinion of this Court, the same will not serve any purpose and it is only an otiose one.
17. On a careful consideration of respective contentions and on an overall assessment of the facts and circumstances of the present case, it is candidly evident that the first petitioner/first petitioner/first plaintiff has filed the present Civil Revision Petition before this Court and ironically, the second petitioner/second plaintiff in I.A.No.50 of 2003 (before the trial Court) has been shown as the third respondent in the Civil Revision Petition. It passes beyond one's comprehension as to how the second plaintiff (second petitioner in I.A.No.50 of 2003 before the trial Court, who has died seven years before as spoken to by the first petitioner, when he appeared before the Court on 7/7/2004) can be shown as one of the parties to I.A.No.50 of 2003 as petitioners.
18. At this stage, a careful perusal of I.A.No.50 of 2003 (filed by the petitioners/plaintiffs in I.A.No.50 of 2003) clearly points out that only the first petitioner has not signed the affidavit even though the second petitioner (second petitioner/second plaintiff) has reportedly expired seven years before 7/7/2004 as spoken to by the first petitioner and rightly observed by the trial Court.
19. As far as the present case is concerned, this Court is fervently of the considered view that issue of reconstruction of Restoration Application will arise only if the same is misplaced or lost or untraceable by the concerned Court, while the said application is in the custody of the Court. There cannot be any reconstruction of Restoration Application when the same has returned either to the party or to the Counsel and that too when the Reconstruction Application/paper is in the custody of the learned Advocate or the party, as the case may be.
20. Be that as it may. Since for misplacing the Restoration Application or for losing the same either by the Court or by the Court Staff, the plaintiffs cannot be found fault with in any manner and they cannot be penalised for the act of either the Court or the Court Staff and when Restoration Application has been filed on 18/7/1994 as per entry in 19th Register bearing No.25677, this Court, without going into the merits and without expressing any opinion in the subject matter, on the basis of Fair play, Equity, Good conscience and even as a matter of prudence, directs the Civil Revision Petitioner/first petitioner/first plaintiff to file a fresh I.A., praying permission of the trial Court to reconstruct the Restoration Application filed on 18/7/1994 in 19th Register bearing No.25677 to prevent an aberration of justice before the trial Court within a period of two weeks here from (since the second petitioner in I.A.No.50 of 2003/second plaintiff has expired and on such application being filed by the revision petitioner, then the trial Court is to number the same and to provide opportunity to the respondents/defendants to file counter and in any event, the trial Court is directed to pass a dispassionate order, untrammelled and uninfluenced by any of the observations made by this Court in this revision.
20. In the result, with the above direction, this Civil Revision Petition is disposed of. No costs.
mvs.
To
1. III Additional Subordinate Judge, Madurai.