Civil Civil

4 years ago

Court is saying the decree of my father case which was in his favour were lost. How can I restructure the file

Shreyash Mohta

Responded 4 years ago

A.The advise of Adv. Abhimanyu Shandilya is perfect and precise.
I have nothing more to add to that.
Helpful
Helpful
Share

Post Your Matter Post Your Matter

Talk to a Lawyer Talk to a Lawyer

Ask a question Ask a question

Vidhi Samaadhaan Vidhi Samaadhaan

Kishan Dutt Kalaskar

Responded 4 years ago

View All Answers
A.Dear Sir,
Under section 151 cpc it can be rebuilt.
Helpful
Helpful
Share

Post Your Matter Post Your Matter

Talk to a Lawyer Talk to a Lawyer

Ask a question Ask a question

Vidhi Samaadhaan Vidhi Samaadhaan

Abhimanyu Shandilya

Responded 4 years ago

View All Answers
A.Dear Punit,
Use the below mentioned provisions and Case Laws to speak to your lawyer and the Court to get the records recreated.



INHERENT POWER OF COURT OT RECONSTRUCT THE REORCDS
A. Legislation
i) O-XIII Rule 10 of Code of Civil Procedure
10. Court may send for papers from its own records or from other courts. - (1) The court may of its own motion and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other court, the record of any other suit or proceeding, and inspect the same.
(2) Every application made under this rule shall (unless the court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain duly authenticated copy of the record or of such portion thereof as to applicant requires, or that the production of the original is necessary for the purposes of justice……………………………………………………………………………………………………………………..
(3) Nothing contained in this rule shall be deemed to enable the court to use in evidence any document which under the law of evidence would be inadmissible in the suit.

ii) Chapter 22 Rule 477 of West Bengal Civil Rules and Orders
RECONSTRUCTION OF CIVIL COURT RECORDS AND REGISTERS DESTROYED OR DAMAGED BY FIRE
R.477 When records, registers etc., are destroyed or damaged by fire, the fact should at once be reported to the High Court and the presiding Judge of the Court concerned should take personal charge immediately of their remnants and proceed with the work of reconstruction of records according to the following instructions;
Instruction in the event of civil court records being destroyed by fire etc.
(1) If any registers have been preserved, the Presiding Officer of the Court should take personal charge of them, and should look carefully through them in order to satisfy himself that no alterations or erasures have been made in the column showing manner of disposal. If he detects any such alterations or erasures, he should make careful enquiry about them. Every entry referring to the manner of disposal of cases should be attested by the Presiding Officer’s signature in full and every bonafide alteration should be similarly attested. The Presiding Officer, if subordinate to eth District Judge, should also open a small supplementary register showing fully the manner in which each case has been decided; and this register should be sent to the District Judge for safe custody.
(2) The following instructions are merely suggestions ads to the proper course to be adopted in the circumstances indicated. For the purposes in view, pleaders are in the same position as ordinary witnesses in regard to whose examination the Presiding Officer must exercise his judicial discretion.

B. CASE LAWS AND PRECEDENTS
Madras High Court
Marakkarutti And Ors. vs T.P.M. Veeran Kutty And Ors. on 12 March, 1923
Equivalent citations: 73 Ind Cas 1050, (1923) 44 MLJ 673

This case was referred to Madras High Court by the District Judge of South Malabar, an appeal from the District Munsiff of Parappanangadi. Difficulty had arisen owing to the fact of the District Munsif's Court having been destroyed in the Moplah rebellion and the records in this case at the same time destroyed.
The Madras High Court Commented that, “one can safely start with the proposition that there is inherent power in every Court to reconstruct its own records, and I think it follows that there is inherent power in the Appellate Court to reconstruct the records of the Court from which an appeal lies to it. This power has been recognised in England and in America, which follows the English Common Law, and also in this Country. The English case that is quoted on the subject is Douglass v. Yallop 2 Barrows 722: 97 E.R. 532. The matter was more fully discussed in an American case, McLendon v. Jones 42 Am. Dec. 640, a judgment of the Court of Alabama which quoted and followed Douglass v. Yallop 2 Barrows 722: 97 E.R. 532 and a case which had been decided by the Supreme Court of New York; and that case points out, "Cases must frequently have occurred in which, by accident, the records of Courts of Justice have been destroyed or lost, and it would seem strange if the Common Law had provided no adequate means by which the injuries growing out of such accident could be averted or remedied, "
The Madras High Court gave refence to a case which came before the Calcutta High Court in the year 1867;
Babu Guru Dayal Singh v. Durbaree Lal Tewaree (1867) 7 W.R. 18, a judgment of Sir Barnes Peacock, C.J. and Jackson, J.

In that case records had been lost in transit from the first Court to the second; the second Court acted on some documents purporting to be office copies which the High Court held were not regularly proved or admitted. The Court held that there were two alternative courses open,
a) to direct the lower appellate Court to receive such secondary evidence of the contents of original records as may be forthcoming, or
b) to order an entirely new trial.

The Calcutta High Court decided against the second alternative for very cogent reasons with which we agree. It directed the lower appellate Court to receive secondary evidence of the contents of the whole record, but, if not able thus to replace the record, that the parties should be at liberty to adduce further evidence and, on the record so reconstructed and supplemented, give judgment.

The first thing to observe is that the appellant has, in order to get his appeal heard at all, to satisfy the Court what the record is of the case in which he has failed. He can come to the Court and say that he has tried to get the record which has been destroyed. He can then ask the Court to be allowed to reconstruct that record. It is then for the Court, if so minded--I say that because it is conceivable that the Court may say, on the material at hand before it or on the appellant's application that no amount of reconstructing of the record would assist the appellant in his appeal to permit the appellant to get the record reconstructed. The Court has not got to have the case re-heard. The respondent is entitled to the benefit of having the judgment which he has got in his favour on the original hearing. It may be that, in reconstructing the record, the Court will have to go very near to rehearing, but the Court will always have to apply its mind to ascertain not what the rights of the parties were, but what the destroyed record of the suit was and on that record, when reconstructed, it will have to act on the ordinary principles on which it would have acted if the original record had been before it. It will be for the Judge to whom the application is made to decide how the reconstruction of the record is to be attempted affidavits, counter-affidavits, the hearing of witnesses and the admission of copies are all methods which he can in a proper case allow. He will, of course, get the best evidence available. It; will be open to him in a proper case to call for a finding of the District Munsif on what the record was. It may well be in some cases that it would be more convenient that the Court that heard the matter and made the record should do the reconstructing rather than the appellate Court and, with that in view, the appellate Court may well in a proper case send the case to the District Munsif for the recording of evidence and a finding as to what the record consisted of, which finding, when given, it will be open to the appellate Court to accept or reject in the ordinary way. It is worth observing, that in the appellate Court, probably the best evidence of what took place in the Court below will be found in the judgment, if that has been preserved, of the District Munsif or the Subordinate Judge, as the case may be, who heard the case and recorded findings.
In the case at present before us, we have the District Munsif's judgment still existing, and he states on several matters the facts that were proved before him, and it is very clear that his statement as a contemporaneous statement of what took place before him or statement made at any rate a short time after it had taken place will be as good evidence as can be obtained and in all probability better than any other. In the event of the appellate Judge being unable to reconstruct the record to his satisfaction, it must be borne in mind that the onus is on the appellant to establish his grounds of appeal and on the respondent his cross-objections, if any. Therefore, in this case we direct the District Judge of South Malabar to hear the appeal, and, if he thinks it necessary, to reconstruct the record for the purposes of the appeal in the manner suggested above. I do not think we can in anticipation usefully give any further instructions as to what should be done in these matters.
Costs of this reference will be costs in the appeal.
I agree and have nothing to add.
Ramesam, J.
Helpful
Helpful
Share

Post Your Matter Post Your Matter

Talk to a Lawyer Talk to a Lawyer

Ask a question Ask a question

Vidhi Samaadhaan Vidhi Samaadhaan

Read Related Answers

question iconFamily agreement on a plot with a house built on it
Dear Client, In a family settlement agreement, all the parties involved should sign the settlement deed in the presence of witnesses and a notary public to make it legally valid and enforceable. The v...
question iconOld house mud wall
Dear Client, No construction is allowed or permissible on the common wall dividing the boundary and metes of land belong to different owners. When your neighbor files a civil suit and obtains an inju...
question iconSuit for separate possession and property
Dear Client, Here, the source of finance that enables a person to acquire a property defines the character of a property. Since your father acquired the property financed by your grandfather and grand...
question iconApartment Issue
Dear Client, In the given scenario, any solution to resolve the issue may cost you more apart from the legal consequences for a couple of days/months. Try your level best to resolve the matter amicabl...
question iconNational Green Tribunal
Dear client, approach a lawyer at your location or any NGO on environmental concerns for drafting a notice to the company.