1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL NO.124 OF 2010 WITH NOTICE OF MOTION NO.613 OF 2010 The Provident Investment Co.Ltd. ... Appellant. Vs. Premabai Mathradas Goculdas & Ors. ... Respondents. ..... Mr.Vivek Tankha, Additional Solicior General of India and Senior Advocate with Mr. P.D. Patel, Mr.A.D. Nagarjun, Mr.B.K. Satija and Mr.M.Ajax for the Appellant. Mr.S.U. Kamdar, Sr. Advocate with Ms.Pooja Patil, Mr.Sandeep S. Aole and Mr.B.V.S. Choudhary i/b. Udwadia & Udeshi for Respondent Nos.1 to 15. Mr.S.R. Rajguru with Mr. A.R. Varma for Respondent No.16. Mr.Manvendra Kane with Ms.Sowmya Srikrishna i/b. M/s.Amarchand & Mangaldas and S.A.Shroff & Co. for Respondent No.8. ..... CORAM : DR.D.Y.CHANDRACHUD & J.P.DEVADHAR, JJ. 9th April 2010. P.C. : This appeal arises out of an order dated 10 February 2010 of a Learned Single Judge, dismissing a Motion filed by the Appellant, the original First Defendant. The relief that was sought in the Notice of Motion was as follows: 2 “a) That Hon’ble Court be pleased to stay the hearing of Suit No.36/1969 till the out come of proper enquiry directed by this Hon’ble Court by calling the records of the record department viz., Minutes books etc., including the list of pending suits as on 26.8.2008 existing on the files of the said department and other records to ascertain that whether the reconstruction proceeding as allowed by the Assistant Prothonotary and Senior Master vide the orders dated 10.2.2009 and 21.7.2009 are correct in the interest of justice.” 2. The suit has been instituted by the Plaintiffs in 1969 for redemption of a mortgage in respect of certain immovable properties, more particularly described in Exhibit-A to the Plaint. According to the Plaintiffs, the suit remained pending on the file of this Court since 1969. A statement of pending suits was prepared by the Registry on the Original Side on 26 August 2008, in which the suit out of which the appeal arises, was not shown to be pending. The Defendants to the suit are respectively a Company owned and controlled by the State of Madhya Pradesh, the Union of India and the State of Madhya Pradesh. The record pertaining to the suit was not traceable in the Registry on the Original Side. On 10 February 2010 an order was passed by the Master and Assistant Prothonotary by which the Advocates for the parties were 3 directed to submit true copies of the record and proceedings of the suit in their possession, upon which the Advocates for the Plaintiffs and the Defendants were directed to serve redeclared and reaffirmed proceedings. Upon the pleadings being redeclared and reaffirmed, a direction was issued to the effect that the Registry shall accept these as the originals for all intents and purposes until the original record is traced. The grievance of the Appellant before the Court is that the order dated 10 February 2010 was passed by the Master and Assistant Prothonotary without notice to it. The fact that the notice was not issued to the Appellant before that order was passed is common ground; though, according to the Plaintiffs, sufficient opportunity was thereafter available to the Appellant to controvert the correctness of the record submitted by the Plaintiffs to the Registry. 3. In the meantime, the trial of the suit commenced before the Learned Single Judge. Issues were framed and part of the evidence has been recorded. The motion that was taken out by the Appellant was for staying the proceedings in the suit until a 4 proper enquiry was conducted by the Court by calling for the records from the Record Department in order to ascertain whether the reconstruction of the records as allowed by the Assistant Prothonotary was correct. The motion was dismissed by the Learned Single Judge by the impugned order. 4. The apprehension which has been expressed on behalf of the Appellant at the hearing of the appeal is that it is perhaps likely that the suit may have been dismissed in default. At this stage, it needs to be noted that the Appellant is not in possession of any order of the Court dismissing the suit in default. However, the Appellant relies upon the circumstance that as on 26 August 2008, the Registry on the Original Side had not included the suit in question, as one of the pending suits of the year 1969, while preparing the statement. The answer which is set forth on behalf of the Original Plaintiffs is that evidently since the record of the suit was untraceable, the Registry may have proceeded not to include the suit in the list of pending suits from 1969. The Court is informed by Counsel for the parties that the relevant pages of the 5 suit register of 1969 are found to be torn. 5. At the hearing of the appeal, Counsel appearing on behalf of the Appellant submitted that all that the Appellant seeks at this stage is inspection of the order sheets pertaining to the suit from Minutes Books maintained by the Registry on the Original Side with a view to ascertain as to whether there is any order by which the suit has been dismissed in default. 6. Nearly forty years have elapsed since the institution of the suit, there being a change of Advocates on both the sides. 7. We had indicated to Learned Counsel that it would be appropriate if the Appellant has a fair opportunity to inspect the Minute Books where a record of the orders passed by the Learned Trial Judges in Long Cause Suits is maintained. As noted earlier, the Learned Counsel for the Appellant sought an opportunity to inspect the Minutes Books in order to be satisfied that the suit still continues to be pending and that it has not been dismissed in 6 default. The original record of the suit was not traceable; it is common ground that the pages from the suit register of 1969 are torn and the statement prepared by the Registry on 26 August 2008 does not show the suit to be pending. The suit was instituted forty years ago, much prior to the advent of computerisation. Learned Senior Counsel appearing on behalf of Respondents 1 to 15 submitted that while the Appellant has had a sufficient opportunity to inspect the record and to respond to the record reconstructed by the Plaintiffs, there would be no objection if another opportunity is granted to the Appellant to take inspection, within a specified time frame. During the course of the hearing, we had indicated to Counsel that it would be appropriate if parties would agree to a working arrangement in order to enable the Appellant to have an opportunity of ascertaining whether the suit continues to be on the file of this Court on the Original Side. During the course of the hearing, Counsel have agreed to the following order being passed by the Court on their request, without any further recording of reasons. Accordingly, there shall by consent of Counsel be an order in the following terms: 7 -(i) The Appellant is permitted to take inspection of the Minutes Books which contain orders passed by Judges of this Court, assigned with the work of hearing Long Cause Suits and of the Suit Register pertaining to the suit in question; -(ii) The Appellant agrees to complete the exercise of taking inspection under clause (i) by 19 June 2010; -(iii) In the event that upon taking inspection the Appellant is able to establish either from an order passed by the Learned Trial Judge or by any administrative order of the Prothonotary that the suit was dismissed in default, it would be open to the Appellant to bring this to the attention of the Learned Trial Judge hearing the suit. For this purpose, the suit shall be listed on Board for directions on 21 June 2010 before the Learned Trial Judge; -(iv) In the event that the Appellant is not able to establish on the basis of the material on the record that the suit has been 8 dismissed in default or that it is no longer borne on the file of the Court, it is agreed that the hearing of the suit shall then proceed in accordance with the time schedule that may be laid down by the Learned Single Judge; -(v) In order to facilitate the completion of the exercise, the original Plaintiffs agree through Counsel not to pursue the proceedings in the suit until 21 June 2010; -(vi) The parties shall place a copy of this order on the file of the Learned Single Judge on 15 April 2010 when the suit is stated to be listed for hearing; -(vii) The Appellant shall furnish to the Original Plaintiffs and to the other parties, notice of the date(s) on which they propose to take inspection of the records, at least twenty four hours in advance. Any of the parties who desire to depute a representative at the time of inspection, would be at liberty to do so; 9 -(viii) Inspection shall take place during office hours between 11 a.m. and 5 p.m. on office working days; -(ix) The Prothonotary and Senior Master is directed to act in compliance with the aforesaid directions which are issued with the consent of all the parties. 8. The appeal is accordingly disposed of in the aforesaid terms since no other orders are sought, and no other point is pressed. 9. In view of the disposal of the Appeal, the Notice of Motion does not survive and is accordingly disposed of. (Dr. D.Y. Chandrachud, J.) (J.P. Devadhar, J.)