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Judgment
What is the procedure to be followed by a Court when a case record goes missing is the question that arises for consideration in this original
petition.
The facts in a nutshell are, the petitioner is a co- owner of the property comprised in Resurvey No.558 in Block No.3/10 in Kannur-1 Village,
having an extent of 6.88 Ares, covered by Ext P3 basic tax receipt and Ext P4 possession certificate. The property originally belonged to Andrew
Rodger Lambie. The erstwhile owner had by an unregistered Will (Ext P1) dated 4.1.1961 bequeathed the property in favour of his wife - the
respondent. The respondent, on the death of her husband, filed OP No.48/1964 (Ext P9) before the Court of the District Judge, Thalasserry, seeking
letters of administration with Will annexed in respect of item No.2 in Ext P1. By Ext P2 judgment the original petition was allowed. The respondent
sold the property to the petitioner's predecessors in interest. Ultimately, by document No.1685/1971, the property was assigned in favour of the
petitioner's mother and other relatives. Now, the property has vested on the petitioner and his siblings, who are desirous of constructing a building in
the property. They approached a Bank for financial assistance, but the Bank has insisted for a certified copy of the Will. In the said circumstances,
the petitioner filed Ext P5 copy application, Ext P6 Vakalath and Ext P7 list of documents before the District Court in OP No.48/1964, to obtain the
certified copy of Ext P1. The endorsement on Ext P9 original petition substantiates that the Will was marked as Ext A1 in evidence. However, by Ext
P8 endorsement made on Ext P7, the Record Clerk has returned Exts P5 to P7 for the reason that the Will cannot be traced. The petitioner seeks to
set aside Ext P8 endorsement and a direction to the District Court to issue the certified copy of the Will.
When the original petition came up for consideration on 17.11.2020, this Court had called for a report from the District Court.
The learned District Judge by communication dated 24.11.2020 has informed this Court that the Record Clerk had searched for the Will, as in the
index paper it is endorsed that record was kept in a sealed cover with the Sheristadar. Although he had conducted a thorough search in the chest and
almirah, the Will could not be traced out. The said reason was not mentioned by the Record Clerk in the copy application. The Court is not in a
position to issue the certified copy of the Will, as it is not available in the case records.
As the relief sought in the original petition, is with respect to issuing a certified copy of the Will, notice to the respondent was dispensed with.
Heard the learned counsel appearing for the petitioner.
The endorsement on Ext P9 original petition proves that the Will was marked in evidence as Ext A1. The communication of the learned District
Judge also establishes that the Will was kept in a sealed cover in the safe custody of Sheristadar. Therefore, the Will has been misplaced/lost while
the document was in 'custodia legis'.
This Court, after noticing the increasing incidents of missing of case records, has promulgated Official Memorandum dated 30.1.2019, issuing
exhaustive directions to all Subordinate Courts to deal with such situations. It is seen that the Official Memorandum was communicated to all Judicial
Officers and Sections for strict compliance. Nevertheless, the Official Memorandum is extracted below, which reads thus:
THE HIGH COURT OF KERALA
No.D6-6141/2019 Date:30.1.2019 OFFICIAL MEMORANDUM
Sub: Missing of records of subordinate Courts- instances of missing on an increase-general directions issued-reg.
Ref: 1. High Court Circular No. 26/1958.
High Court Circular No. 13/1962
High Court O.M. No. D6-32813/14 dated 10/07/2014.
…... It has come to the notice of the High Court that instances of missing of case records reported from the subordinate courts are increasing
recently, despite the strict directions issued by the High Court on the subject. This causes considerable delay in the disposal of cases, thus causing
much difficulty to the parties to the proceedings. In some cases the documents are found impossible to be reconstructed, which may result in
miscarriage of justice. Taking a serious note of this disturbing trend, the following directions are issued to all subordinate courts for strict compliance.
a) One of the main reasons for missing of records is improper keeping of records. It is necessary that the subordinate judicial officers bestow personal
attention in the matter. They shall ensure that case records are properly maintained in their courts. Any lack of space or insufficiency of racks should
be looked into and necessary action be taken at the earliest. They shall impress upon their staff the need for proper upkeep and safety of records.
b) The High Court had earlier issued instructions to report instances of missing of records to the High Court promptly. But instances have been
noticed where there have been considerable delay in reporting the matter. Any lapse from the Subordinate Courts in promptly reporting the missing of
documents to the High Court will be viewed seriously and proceeded with accordingly hereafter.
c) The High Court had also directed the subordinate courts to ensure that thorough search is conducted before reporting the missing to the High Court.
But it is often found that the matter is reported without conducting a thorough and proper search. Records are often traced out after instructions have
been issued for reconstructing the same. The judicial officers shall bear in mind that the missing records are to be necessarily traced out and
reconstruction of those records shall be resorted to only as the last resort. The search shall not be in a casual manner and the judicial officer may avail
the service of all the staff of the court concerned so as to trace out the records, which can be done even on a holiday, by availing holiday duty.
d) When the documents are irrecoverably lost and the same need to be reconstructed, the courts concerned shall report the steps taken to trace out
the document and the possibility of reconstruction at the time of reporting the matter to the High Court It is also incumbent upon the Courts to secure
the copies of such documents at the stage of reporting the matter to the High Court and to Inform the same, so that they can proceed with the matter
as and when instructions are received from the High Court. This will help to avoid delay in the disposal of the case.
e) In order to appreciate the relevance of the missing document in further proceedings, it is necessary that the subordinate courts report the nature of
the case, the details of the lost document and the stage of the case. But these matters are often omitted in the report. Hence, the subordinate courts
shall include all the necessary details of the missing documents and the case while reporting the matter to the High Court. They shall also enter all the
necessary details in the form appended herewith as (Annexure I) and forward the same along with the report.
f) Often it is noticed that the disciplinary proceedings against the delinquent employee takes a long time. This delay is not desirable. The proceedings
shall be conducted promptly. Since the power to take disciplinary action rests with the District Judge/ Chief Judicial Magistrate, while reporting the
missing of records to the High Court, they shall simultaneously take steps to fix responsibility for the missing of the records and initiate action against
the delinquent. The whole proceedings shall be completed in a time bound manner and a report shall be sent to the High Court on conclusion of the
proceedings.
g) The subordinate judicial officers are advised to take a strict view while dealing with disciplinary proceedings with respect to missing of records.
They should also issue necessary directions to their staff for the proper upkeep and safety of records. They shall ensure that instances of missing of
records are not repeated.
The above directions shall strictly be followed. Any violation of these directions will be viewed seriously by the High Court and dealt with accordingly.
(By Order)
sd/-
` PG. Ajithkumar.
Registrar (Subordinate Judiciary)
(Bold letters given)
By virtue of the provisions in Chapter VII of the Civil Rules of Practice, Kerala, 1971 (in short 'Rules') the Record Clerk had no authority to return
Exts P5 to P7. It is evident in the communication of the learned District Judge that the missing of the record was not brought to his notice, before Ext
P8 was endorsed and Exts P5 to P7 were returned. The learned District Judge has informed that the certified copy cannot be issued as the Will as it
cannot be traced out. This is against the directions and procedure prescribed in the Official Memorandum.
In light of the Official Memorandum, it was the duty of the learned District Judge to have promptly ordered a proper search to be conducted and,
thereafter, reported the matter to this Court, and as a last resort, ordered the reconstruction of the records.
In view of the directions in the Official Memorandum and that Ext P1 is in the custody of the Court, I hold that Ext P8 endorsement and returning
of Ext P5 to P7 are erroneous and unsustainable in law and, therefore, liable to be set aside.
In the result, I allow this original petition by setting aside Ext P8 endorsement, and in exercise of the powers of this Court under Article 227 of the
Constitution of India, I direct the District Court, Thalassery to accept Exts P5 to P7 and take the necessary steps, as contemplated in the Official
Memorandum and pass appropriate orders on Ext P5, in accordance with law. Forward a copy of this judgment to the Registrar (Subordinate
Judiciary) of this Court.