Court No. - 7
Case :- WRIT - B No. - 2010 of 2021 Petitioner :- Mohammad Sarvar And 2 Others Respondent :- Board Of Revenue And 6 Others Counsel for Petitioner :- Kapoor Chandra Vishwakarma,Ankur Vishwakarma Counsel for Respondent :- C.S.C.,Azad Rai,Himanshu Pandey
Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the petitioner, learned counsel for caveator/respondents No. 5, 6 and 7, learned counsel for the Gaon Sabha/respondent No. 4 and learned standing counsel representing respondents No. 1, 2 and 3.
2. By way of present writ petition, the petitioners have invoked the extraordinary jurisdiction of this Court challenging the order dated 2.8.2021 (annexure No. 16A) passed by the Board of Revenue (respondent No. 1).
3. The grievance of the petitioners is that respondent No. 1 has illegally remitted the matter before the learned commissioner for reconstruction of the record whereas respondent No. 1 itself is competent to construct the record and finally adjudicate the appeal on merits.
4. The present writ petition is arising out of title suit under Section 229B of The UP Zamindari Abolition and Land Reforms Act, 1950 (in brevity, ‘UP ZA Act’).
5. Sri Abdul Majeed (predecessors in the interest of respondents No. 5 to 7) had filed a suit for declaration under Section 229B of UP ZA Act. Aforesaid suit was dismissed vide judgment dated 29.6.1981 passed by the Assistant Collector-1st Class, Allahabad. Feeling aggrieved, Abdul Majeed had filed first appeal before Commissioner, Allahabad, which was decreed by judgment and decree dated 14.6.1982. When Shaukat Ali (predecessor in the interest of the petitioner) came to know about the ex- parte judgment and decree dated 14.6.1982, he had filed recall application, which was allowed vide order dated 6.6.2017. Consequently appeal was restored to its original number. Subsequently, after hearing both the parties, first appellate court has dismissed the appeal by judgment and decree dated 3.4.2018. Being aggrieved and disatisfied with the order passed by the first appellate court, respondents No. 5 to 7 have preferred second appeal, which was allowed and the matter was remitted before first appellate court by impugned order dated 2.8.2021 passed by the respondent No. 1, which is under challenge before this Court.
6. Learned counsel for the petitioners submits that in deciding the substantial question of law No. (Ba), second appellate court has illegally remitted the matter before first appellate court for reconstruction of the records whereas the respondent No. 1 is competent enough to reconstruct the record and decide the appeal on merits.
7. Per contra, learned counsel for the respondents contended that the respondent No. 1 has rightly remitted the matter before the first appellate court for the reconstruction of the documents inasmuch as the order passed by the first appellate court is itself not sustainable in the eyes of law in absence of the record of the court below. It is further contended that there is no illegality, perversity or ambiguity in the order passed by the respondent No. 1. The present writ petition is devoid of merits and is liable to be dismissed.
8. Carefully considered the rival submissions advanced by the learned counsel for the parties and perused the record on board.
9. The point for consideration in the present matter lies in a very narrow compass as to whether Board of Revenue is justified in relegating the parties before the first appellate court to decide the appeal afresh after reconstruction of the record. At second appellate stage, three substantial questions of law were formulated out of which substantial question of law number ‘Ba’ is relevant to decide the present matter, which was formulated as to whether, mere absence of original record of appellate court in the record room could be a ground to decide the proceeding of regular appeal treating it as suspicious and doubtful? In deciding the aforesaid substantial question of law, respondent No. 1 has discussed the matter in detail and came to the conclusion that it is not fair to decide the appeal in absence of the record of the court below, which should be reconstructed, in case, the original record is not available or missing.
10. Learned counsel for the petitioners in support of his submission has cited the case of Ram Khelawan and another Vs. Dy. Director of Consolidation, Allahabad and others reported in 1988 ALL. L.J. 68. Relying upon the paragraph No. 14 of the aforesaid judgment, learned counsel for the petitioners submits that reconstruction of the record can be made at the second appellate stage also. Paragraph 14 of the aforesaid judgment of Ram Khelawan and another (supra) is quoted below:-
“14. It cannot be doubted that this Court while remanding the case back did not give a fresh line to the Petitioner for proving his case afresh by leading fresh evidence. If the Petitioner was trying to prove his case by means of document to be filed afresh to prove his case which was not proved earlier, then it would be well within the jurisdiction of the revisional court not to give such opportunity. However, in the present case the question is not of granting fresh opportunity. The contention raised on behalf of the Petitioner that he has already proved his document by his four witnesses and since the copies of the statements of these four witnesses were burnt and he could not obtain the copies from his own Counsel as he has left the profession and went in service, the Petitioner sought for permission for producing the said witnesses again for helping in the reconstruction of the file. It is true that the examination of the witnesses afresh should only be done in the rarest of case as there is likelihood of improving the case of the parties. The principle has been well and properly considered in the Full Bench decision of the aforesaid Madras case. It is laid down that the court should afford best opportunity to the parties for reconstruction of the file which is permitted under law. It has been laid down in the aforesaid Madras decision and our Division Bench case that the court below should give best opportunity to the parties for reconstruction of the lost record and if in spite of best effort on the facts of each case, the court exercising its inherent power is not able to reconstruct the existing records on the basis of statements filed by the parties, then the court should not hesitate for permitting the witnesses to be examined for reconstruction of the file subject to the condition of the right of cross examination of other side.”
11. The proposition of law, as discussed by co-ordinate Bench of this Court in the aforesaid case, is not disputed. Aforesaid cited case relates to the Consolidation of Holdings Act. Perusal of the aforesaid judgment, it cannot be inferred that the higher court should have reconstruct the record and decide the case itself rather to remit the matter before the lower court for reconstruction of the record.
12. Learned counsel for the petitioner has next relied upon the case of U.P. State Road Transport Corporation Vs. Smt. Geeta Devi and others reported in 1983 A.C.J. 49. In the cited case, Division Bench of this Court has held that the reconstruction of the destroyed record is required to meet the ends of justice. It is one of the first highest duty of the court to reconstruct the same. The relevant paragraphs No. 11, 12, 13, 14 and 15 are quoted below:
“11. Before we express our opinion on the actual coarse to be adopted in this case, we wish to note about the power in exercise of which a direction regarding reconstruction of the record which has been destroyed can be given. There are rules in the General Rules (Civil) and also there are circulars issued by the High Court from time to time to the Courts below about the reconstruction of record. However, in regard to the record of the Court below, there appears to be no difficulty for a Court of appeal to direct it to prepare the same in accordance with the directions which may be issued in that regard. This, to our mind, can be done u/s 151 of the CPC Section 151 CPC preserves inherent power which a Court of general jurisdiction is required to exercise in the ends of justice. The "inherent power", observed by the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, "has not been conferred on the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties, before it."
12. It may further be stated that it is one of the first and the highest duties of the Courts to take care that the act of the Court does no injury to any of the litigants. Accordingly, if on account of some accident, the record of a Court is lost or destroyed by fire, it is the duty of the Court to reconstruct the same so that justice is done between the parties on its basis.
13. The argument raised in this regard was that as there is no specific power in CPC for reconstruction of a destroyed record, the Court is not empowered in exercise of its inherent power to get it reconstructed. It is undeniable that the Court cannot exercise its inherent power which is otherwise prohibited by any specific provision or impliedly barred. In the exercise of its inherent power, the Court should be careful to see that its decision is based on sound general principles and is not in conflict with them or the intention of the legislature. In Narsingh Das v. Mangal Dubey ILR (1883) 5 All 163 (FR), Mahmood, J., observed:
“Courts are not to act on the principles that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converge principle that every procedure is to be understood as permissible till it is shown, to be prohibited by the law.”
14. From the above, the principle, that can be culled out is that in the exercise of its inherent power the Court must be careful to see that its decision is based on sound general principles, and that in the absence of any specific provision made in regard to a particular matter, the course required to be adopted in the ends of justice should not be deemed to be prohibited or barred.
15. In the instant case, the ends of justice required that the record should be reconstructed so that the rights of the parties are decided on its costs.”
13. Considering the facts and circumstances of the present case and in the light of the judgments, as cited above by the petitioner, I am of the view that the Board of Revenue has rightly passed the order remitting the matter before the first appellate court for reconstruction of the document, who was expected to decide the appeal after perusal of the original record of the case. The first appellate court, itself, in its order dated 3.4.2018 has treated the proceeding of appeal suspicious in absence of the record at appellate stage. Once the first appellate court came to the conclusion that the proceeding is doubtful due to the absence of the original record, it ought to have made its best endeavour to make available the record of the court below. In case, after the due diligence and efforts, the original record could not made available for consideration, the Court should afford best opportunity to the parties for reconstruction of the lost record to meet the ends of justice.
14. With this observation as above, I find no force in the submission as advanced by the learned counsel for the petitioners in assailing the impugned order passed by the respondent No. 1. There is no illegality, perversity or manifest error in the impugned order dated 2.8.2021. It would not cause any miscarriage of justice in the present matter. Nothing has been demonstrated as to what prejudice would be caused to the petitioners due to the order of remand made by the respondent No. 1 intending to decide the appeal afresh after reconstruction of the lost record.
15. The present writ petition, being misconceived and devoid of merits, is dismissed with no order as to the cost.
Order Date :- 17.12.2021 vinay