BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/04/2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD)MD.No.531 of 2009 1.M.Chinnappan 2.Palaniammal 3.Prema 4.Minor Saravana Kumar ... Petitioners/Petitioners Vs. 1.P.Shanmugam 2.The New India Assurance Co. Ltd., Thiruppur. 3.The Managing Director, Cholan Roadways Corporation Ltd., Kumbakonam. ... Respondents/Respondents Prayer Civil Revision Petition filed under Article 227 of the Constitution of India, to direct the Sub Court, Pattukottai, to dispose of the send for memo petition filed on 26.09.2008 in M.C.O.P.No.97 of 1985 within the stipulated period. !For Petitioner ... Mr.N.Marivel ^ * * * * * :ORDER
The revision petitioners have preferred this civil revision petition
praying for issuance of an order of this Court in directing the learned Sub
Judge, Pattukottai, to dispose of the send for memo petition filed on 26.09.2008
in M.C.O.P.No.97 of 1985 within the stipulated period.
2. According to the learned Counsel for the revision petitioners, the
first revision petitioner is the second claimant in M.C.O.P.No.97 of 1985 on the
file of the learned Sub Judge, Pattukottai and that an award of Rs.2,40,000/-
(Rupees Two Lakhs and Forty Thousand only) has been passed in favour of the
first revision petitioner and others, and further that, the first revision
petitioner and others have received 1/4th of the decreetal amount from the trial
Court immediately after passing of the award and that in A.A.O.812 to 829 of
1986, the Insurance Company has received half of the amount deposited before the
learned Sub Judge, Pattukottai and that the petitioners have filed a send for
memo petition for transferring their claim amount which has been deposited in
the State Bank of India, Vettikadu Branch to the Court deposit for filing an
appropriate application to withdraw the said amount, on 26.09.2008, but the
Tribunal viz., the learned Sub Judge, Pattukottai, has not disposed of the send
for memo petition and that he has given a complaint before the Registrar
(Judicial), Madurai Bench of Madras High Court, on 16.12.2008 and that the same
has been sent to the learned Principal District Judge, Thanjavur, for taking
appropriate action in regard to the missing of the bundle in the Sub Court,
Pattukottai and that on 22.01.2009, the learned Sub Judge, Pattukottai has
issued a notice to the first revision petitioner to appear before him on
29.01.2009 at about 04.00 p.m for proper disposal of the petitioner’s complaint,
but so far the learned Sub Judge, Pattukottai has not disposed of the send for
memo petition filed on 26.09.2008 and that the first revision petitioner is a
Senior Citizen unable to travel long distance and therefore, prays for allowing
the civil revision petition in directing the learned Sub Judge, Pattukottai, to
dispose of the send for memo filed on 26.09.2008 in M.C.O.P.No.97 of 1985 within
a fixed time to be determined by this Court.
3. Earlier, in M.P(MD)No.1 of 2009 in C.R.P(SR)MD.No.7943 of 2009, (later
on, directed by this Court to be numbered and numbered as C.R.P(PD)MD.No.531 of
2009), praying permission of this Court to dispense with the production of the
certified copy of the send for memo petition in M.C.O.P.No.97 of 1985 on the
file of the learned Sub Judge, Pattukottai, this Court on 08.04.2009, has
directed the learned Principal Judge, Thanjavur, to submit a report in regard to
the missing of the entire bundle in M.C.O.P.No.97 of 1985 on the file of the
learned Principal Sub Judge, Pattukottai, from the first week of October’ 2008
within ten days from the date of receipt of the communication of the order and
thereafter, the Registry has been directed to place the said report before this
Court for consideration without fail.
4. However, the Deputy Registrar (Accounts) of this Court, in
C.O.No.116/2009 dated 08.04.2009, has addressed the communication (by fax
through the learned Principal District Judge, Thanjavur) to the learned
Principal Sub Judge, Pattukottai, calling for the report as to the missing of
the entire bundle in M.C.O.P.No.97 of 1985 on the file of the learned Sub Judge,
Pattukottai, within ten days from the date of receipt of a copy of the
communication of the said order passed in M.P(MD)No.1 of 2009 in
C.R.P(SR)MD.No.7943 of 2009, dated 08.04.2009.
5. The learned Sub Judge, Pattukottai, in his report dated 16.04.2009,
addressed to this Registry has stated that ‘the entire bundle in
M.C.O.P.No.97/85 on the file of this Court has been traced out today and the
case records have mingled with other disposed case bundles and on perusal of the
connected records, Rs.6,35,125/- has been invested in F.D.R.No.258821 in the
State Bank of India, Vettikadu Branch and the date of maturity is on 11.03.2009
and the amount is reinvested and that the interest amount of Rs.1,09,153/- in
F.D.R.No.515581 in State Bank of India, Vettikadu Branch and the date of
maturity is 03.07.2009 and that send for memo is ordered today to send for the
amount from the State Bank of India, Vettikadu Branch after the bundle has been
traced out and that as soon as the amount is received from the State Bank of
India, Vettikadu Branch, the petitioner is entitled to file cheque petition’
and has marked the copy to the Principal District Judge, Thanjavur.
6. It transpires from the typed set of papers filed by the revision
petitioners in this civil revision petition that a complaint dated 16.12.2008
has been given before the Registrar (Judicial) of this Court by the first
petitioner stating that his Counsel has filed send for memo petition (by
enclosing a copy of the said send for memo) before the Sub Court, Pattukottai,
in CR 19 Register No.4967 and that till date, the bundle in M.C.O.P.No.97 of
1985 has not been found out and the matter is procrastinated and therefore, has
sought for the assistance in receiving the amount of Rs.6,00,000/- (Rupees Six
Lakhs only) from the case in M.C.O.P.No.97 of 1985.
7. Further, it is evident that on 22.01.2009, the learned Sub Judge,
Pattukottai, has given notice to the first revision petitioner requiring him to
appear before the Office of the Sub Court, Pattukottai, on 29.01.2009 at about
04.00 p.m in connection with the personal enquiry pertaining to the missing of
bundle in M.C.O.P.No.97 of 1985.
8. In the said notice dated 22.01.2009, there is a reference to the
District Judge Official Memorandum No.10586/08/m.1 dated 31.12.2008 and the
complaint of the first revision petitioner dated 16.12.2008.
9. It is not out of place for this Court (for the knowledge and guidance
to the Subordinate Courts and Judicial Officers) to point out that in regard to
the missing of the Court records, the Honourable High Court in
R.O.C.No.4121/80/F1 dated 10.09.1989, has issued a Circular to the Subordinate
Judicial Officers stating that the High Court has come across instances where
the missing of the records not reported to the High Court by the concerned
subordinate Courts promptly and that the High Court directs whenever there is
any instance of missing of Court records, it should be reported immediately
either to the Registrar, High Court, Madras or to the Special Officer, Vigilance
Cell, High Court, Madras.
10. At this stage, this Court recalls the observation of American Court in
Mc.London v. Joines reported in (1845) 42 Am.Dec.640, wherein it is observed as
follows:
“Cases must frequently have occurred in which, by accident, the records of
the 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.”
11. Further, this Court refers to the Full Bench decision of this Court in
Marakkarutti v. T.P.M.Veeran Kutty reported in AIR 1923 Mad. 247 (F.B) that ‘the
reconstruction of the record may go to the extent of rehearing of the case
itself which may mean directing the parties to produce the, relevant witnesses.
In doing so, the Court will have to ascertain not only what the rights of the
parties were, but also what the destroyed record was.’
12. As a matter of fact, in Katam Achutharamayya v. Rikki Nagabhushanan
reported in I.L.R. 1957 A.P.739, the Andhra Pradesh High Court has been required
to decide the desirability of reconstructing the record of which the original
award had been lost for no fault of either party and that it is held that the
Court could under the Court’s inherent power direct for reconstruction and upon
the reconstruction of the record it would have the same effect as the originals
themselves.
13. Continuing further, in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth
Hiralal reported in A.I.R 1962 S.C 527, the Supreme Court has held that ‘the
inherent power of the Court is not controlled by the provisions of the Code.
The Supreme Court observed that the inherent power has not been conferred upon
the Court and that it is a power inherent in the Court by virtue of its duty to
do justice between the parties before it.’
14. To put it precisely, in the decision in Marakkarutti v. T.P.M.Veeran
Kutty reported in AIR 1923 Mad. 247 (F.B), it is held that ‘one can safely start
with the proposition that there is inherent power in every court to reconstruct
its own records and that there is inherent power in the appellate Court to
reconstruct the records of the Court from which an appeal lies to it.’
15. Added further, this Court, in Dr.K.Srinivasan v. P.Srinivasan reported
in 1989-1-L.W 195, has held that ‘the inherent power of the Court to direct
reconstruction of the records in certain cases has been recognised in decided
cases and that the principle on which the decisions are based is that no man
should suffer by an act of Court and that the Latin maxim “Actus Curiae Neminum
Non-Gravabit” is the foundation for the ratio of the above decisions and that
the entire case law on the subject of reconstruction of records has been clearly
traced in 1983 Allahabad 124 by the Division Bench.’
16. In the instant case on hand, it is not known as to whether either the
Principal District Judge, Thanjavur or the learned Sub Judge, Pattukottai, has
informed the Registrar, High Court, Madras (now, the Registrar-General, High
Court, Madras) or to the Special Officer, Vigilance Cell, High Court, Madras
(now, the Registrar-Vigilance, High Court, Madras), as to the missing of the
entire bundle in M.C.O.P.No.97 of 1985 on the file of the learned Sub Judge,
Pattukottai, even after the complaint dated 16.12.2008 preferred by the first
revision petitioner to the Registrar (Judicial) of this Court or on the date
when the complainant/first revision petitioner has been directed to appear
before the learned Sub Judge, Pattukottai, in connection with the personal
enquiry pertaining to the missing of the records in M.C.O.P.No.97 of 1985 or
till date by following the instructions of the High Court in R.O.C.No.4121/80/F1
dated 10.09.1989.
17. Even when the complaint dated 16.12.2008 has been addressed by the
first revision petitioner to the Registrar (Judicial) of this Court, the
Registry of this Court has not instructed the learned Principal District Judge,
Thanjavur, inviting the High Court Circular in R.O.C.No.4121/80/F1 dated
10.09.1989 in regard to the missing of the records being reported to the
Honourable High Court.
18. Generally speaking, in cases where it pertains to the missing of
records, the appropriate action will be initiated by the concerned authority
against the errants as per rules. In the instant case on hand, the learned Sub
Judge, Pattukottai, in his letter dated 16.04.2009, addressed to the Registry of
this Court, has stated that ‘the entire bundle in M.C.O.P.No.97 of 1985 on the
file of this Court has been traced out on 16.04.2009 etc. and that the said case
records have been mingled with the other disposed case bundles.’ The reason
assigned that the case records in M.C.O.P.No.97 of 1985 have been mingled with
the other disposed case bundles, is certainly shocking and an unconscionable
one. By placing the records in M.C.O.P.No.97 of 1985 along with the other
disposed case bundles and to say that it has been mixed up with the other
disposed case bundles, has made the revision petitioners to make a genuine and
reasonable grievance before this Court in filing the present civil revision
petition to the effect that they have been handicapped in not enjoying the
fruits of the award passed in M.C.O.P.No.97 of 1985 fully and efficaciously and
this has caused prejudice to them substantially and materially and therefore, on
the basis of Equity, Fair Play and Good Conscience, this Court, as a matter of
prudence, directs the learned Principal District Judge, Thanjavur, to take
necessary action against the errant staff members by initiating departmental
enquiry if the circumstances so require, as he deems fit and proper, in the
facts and circumstances of the matter in issue.
19. Be that as it may, inasmuch as the learned Sub Judge, Pattukottai in
his letter dated 16.04.2009, has stated tht the entire bundle has been traced
out in M.C.O.P.No.97 of 1985 on its file on 16.04.2009 etc. and that the send
for memo has been ordered on 16.04.2009 to send for the amount from the State
Bank of India, Vettikadu Branch, after the bundle has been traced out and that
as soon as the amount has been received from the State Bank of India, Vettikadu
Branch, the petitioner is entitled to file cheque petition, this Court directs
the revision petitioners to approach the learned Sub Judge, Pattukottai, for
filing necessary application in regard to the withdrawal of money to which they
are entitled to receive and in law, the learned Sub Judge shall deal with the
same as expeditiously as possible preferably on or before 09.06.2009 and to
report compliance before this Court without fail.
20. With the above observations and directions, the present civil revision
petition is disposed of leaving the parties to bear their own costs.
rsb
To
1.The Sub Court,
Pattukottai.
2.The Principal District Judge,
Thanjavur.
3.The Deputy Registrar (Judicial),
Madurai Bench of Madras High Court,
Madurai, (To watch and report).