1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 228 OF 2010 IN SUIT NO. 36 OF 1969. Premabai Mathradas Goculdas & Ors. ..Plaintiffs. v/s. The Provident Investment Co. Ltd. & Ors. ..Respondents. .... Mr. S. U. Kamdar, Senior Advocate, a/w. Ms. Pooja Patil, i/b. M/s. Udwadia & Udeshi, for Plaintiffs. Mr. Pravin Patel, a/w. Arun Nagarjun, for Defendant No.1 Applicant in Motion. Mr. S.R. Rajguru, for Defendant No.2. Ms. Saumya Srikrishna, a/w. Manav Kulkarni, i/b. Amarchand & Mangaldas, for Intervenor. .... CORAM : S.J. KATHAWALLA, J. DATE : 10TH FEBRUARY 2010. P.C. This is a suit of the year 1969 and has remained pending since more than four decades. Despite the suit being more than 40 years old, defendant no.1 (a Government of Madhya Pradesh Undertaking), who has filed its affidavit of documents in the year 1974 (30 years back) is till date admittedly not ready with its compilation of documents and is therefore, leaving no stone unturned in delaying the trial of the suit on one pretext or the other. 2 2. The present notice of motion is one more attempt to delay the trial. The learned Advocate for the defendant no.1 has submitted that his main contention in the notice of motion is that the reconstruction of the papers/ records is not properly done and that defendant no.1 has recently come across a list of pending suits prepared by the Court Office as on 28th August 2008, wherein the above suit is not shown as pending which goes to show that the present suit may have been dismissed for default in the last 40 years. Since such brazen attempts are repeatedly made by defendant no.1 to delay the trial, this Court is setting out in some detail certain facts which goes to show that the conduct of the defendant no.1 needs to be deprecated. 3. The plaintiffs have by the present suit inter-alia sought a declaration that the plaintiffs are entitled to redeem the mortgaged properties and to have the same re-conveyed to them and have possession thereof. On 13th August 2008, the Advocate for the plaintiffs wrote a letter to the defendants informing them that they are desirous of taking search of the papers and proceedings in the suit on 14th August 2008, at 2.00 p.m. in the Court Office when the defendants may remain present if they so desire. Simultaneously, a letter was also written to the Prothonotary and Senior Master, seeking search of the proceedings 3 on 14th August 2008 at 2.00 p.m. The defendants and/or their Advocates did not remain present on 14th August 2008 at 2.00 p.m. in the Court Office. However, the plaintiffs could not take search on 14th August 2008 or thereafter, since the papers were not traceable in the department. The plaintiffs therefore, by their Advocate’s letter dated 21st October 2008, sought permission of the Prothonotary and Senior Master to reconstruct the papers and proceedings in the above suit. It will not be out of place to mention here, that in the meantime, the department has prepared a list of the suits pending in this Court as on 26th August 2008. Obviously since the original papers in the above suit were not traceable, even on 14th August 2008, the above suit has not figured in the list of pending suits as on 26th August 2008 prepared by the department. 4. According to the defendant no.1, on 26th December 2008, the Clerk of the record department informed the Asstt. Prothonotary and Senior Master that the papers in the above suit were not available in the Department. The Asstt. Prothonotary therefore, passed directions that the explanation given by the said Clerk may be accepted and the order for reconstruction may be passed. According to the defendant no.1, on 1st January 2009, a praecipe alongwith the report is submitted to the Prothonotary 4 and Senior Master and again the Clerk was directed to search out the records. In the meantime, the orders directing reconstruction of the proceedings and appointing the Additional Prothonotary Mr. Sawant to act as Officer as per the circular of 1995, were passed. On 15th January 2009, the Additional Prothonotary, Mr. Sawant directed that the above suit be listed on board on 21st February 2009. On 17th January 2009, Mr. M.S.Patel on behalf of the Registrar/Prothonotary and Senior Master issued notices informing the defendants and the plaintiffs about listing of the suit on 21st January 2009. By a letter dated 21st January 2009, the plaintiffs’ Advocates informed the defendants that the suit will be listed on Board for reconstruction on Thursday, the 22nd January 2009 before Shri D.V. Sawant, Registrar (Judicial-II) in his chamber when the defendants may remain present if they so desire. 5. On 22nd January 2009, the suit appeared before the Master and Assistant Prothonotary (Adm.) when the board was discharged and the suit was adjourned to 5th March 2009. On 2nd February 2009, the Advocates for the plaintiffs wrote a letter to the Prothonotary and Senior Master recording, what had transpired on 22nd January 2009 and sought preponement of the hearing pertaining to reconstruction of records posted on 5th 5 March 2009, on the ground that the suit is very old. The hearing was preponed and on 10th February 2009, the Master and Assistant Prothonotary (Adm.) passed an order directing the plaintiffs and the defendants to submit the true copies of the respective records and proceedings in the above suit on or before 27th February 2009. It is true that notice of preponement of the hearing on 10th February 2009 was not given to the defendants. However, it is also true that by the said order dated 10th February 2009, the parties were only directed to submit true copies of the records and proceedings in the above suit, and the actual reconstruction of the papers and proceedings was not carried out on that day. Therefore, no prejudice was caused to the defendants by the order dated 10th February 2009. Again, immediately on 18th February 2009, the Advocate for the plaintiffs informed the defendants about the order passed by the Master and Assistant Prothonotary (Adm.) dated 10th February 2009 and requested the defendants to hold a meeting on 20th February 2009 at 5.30p.m. at their office or at such other mutually convenient time, date and venue for the purpose of the above referred verification of the pleadings. Interestingly, the defendant no.1 by its letter dated 25th February 2009 responded to the plaintiffs request to hold a meeting for the purpose of verification of the pleadings, as follows :- 6 “since the defendants are Central Government and are defended by them, please get all necessary requirements/ informations sought by you from them. This Office has got no important file, etc.” A copy of the said letter was also forwarded by the General Manager of defendant no.1 to Shri A.S. Swami, Master and Assistant Prothonotary (Adm.) and PIO. The Prothonotary and Senior Master by her letter dated 25th March 2009 inter-alia informed the defendant no.1 that the matter was fixed on Thursday, 9th April 2009 at 11.00 a.m. before Mr. A.S. Swami, Master and Assistant Prothonotary and P.I.O. A copy of the order dated 10th February 2009 passed by Mr. Swami was also forwarded to the defendant no.1. 6. The Advocates for the plaintiffs by their letter dated 17th June 2009 addressed to the Union of India enclosed the “Entire Proceedings” and informed them that the matter is placed on the board of the Master and Assistant Prothonotary (Adm.) and PIO, Shri A.S. Swami for “Re-Affirmation and Reconstruction” on 22nd June 2009. The Union of India was informed that if no one appears on their behalf, the plaintiffs will request Mr. Swami to accept the “Entire Proceedings” compiled by the plaintiffs as the correct one and allow the plaintiffs to reconstruct the file of the 7 Court. A similar letter dated 1st July 2009 was written by the Advocates for the plaintiffs inter-alia to the defendant no.1 informing them that the matter is now placed before Shri Mathkar, Master and Asstt. Prothonotary (Judl.) on 7th July 2009. 7. On 21st July 2009, Mr. Mathkar, Master and Assistant Prothonotary (Judl.) recorded that Mr. A.S. Swami has already passed an order on 10th February 2009 giving directions to the parties to reconstruct the records. Hence, the matter is wrongly on his board. Again interestingly, the learned Advocate, Mr. Patel who has appeared in the present motion for defendant no.1 by his letter dated 29th July 2009 addressed to the Advocate for the plaintiffs inter-alia recorded that he has not received the reconstructed proceedings from the Advocates for the plaintiffs, and requested for the reconstructed proceedings at the earliest. By their letter dated 30th July 2009, the Advocates for the plaintiffs informed Mr. Patel, Advocate for defendant no.1 that by their letter dated 18th February 2009 itself, they had forwarded the documents to the defendant no.1 by clearly stating “Please find attached copies of the proceedings of the above matter for your reference and record.” However, they once again forwarded copies of the proceedings in the matter to the Advocate for defendant no. 1, Shri Patel, for his reference and record. Thereafter, there is not a 8 whisper or complaint or grievance on the part of defendant no.1 or the Advocate for defendant no.1 qua the reconstructed records. In fact, by a praecipe dated 10th August 2009, the Advocate for the plaintiffs requested the Prothonotary and Senior Master to place the suit before this Court [Coram : S.C. Dharmadhikari, J.] on 17th August 2009 under the caption “For Directions”. 8. On 14th August 2009, the suit was placed before this Court [Coram : S.C. Dharmadhikari, J.] for directions, when Mr. Patel, Advocate for defendant no.1 did not voice any grievance and in fact, this Court passed the following order - “1] This is a suit of the year 1969 and is pending in this court for all these years. It is stated that the records were misplaced and, after the orders of reconstruction were passed, pleadings are reconstructed. Therefore, the pre-trial formalities and procedures could not be completed. 2] It is high time that these matters are expedited inasmuch as the suit of 1969 could not have remained pending for all these decades. In this view of the matter, to enable the plaintiff to proceed with the suit, two weeks time is granted, within which they should file the affidavits of evidence and documents. The originals shall be compiled and whatever documents and affidavits are filed in Court, copies thereof be handed over to the defendants in advance so that on the returnable date, this Court can pass appropriate orders 9 with regard to admission and denial of documents so also recording of evidence. S.O. three weeks. 3] It is stated that in this suit issues are not framed as yet, and, therefore, before the above directions are implemented, it would be desirable and in the interest of justice that the matter is placed for framing issues. Request is accepted. Place the suit for framing issues on 17th August 2009 at 3.00 p.m”. 9. On 17th August 2009, draft issues were taken on record. Though Mr. Patel, Advocate for defendant no.1 was present, once again, no grievance was voiced by him before the Court qua the reconstruction of the records. On 21st August 2009, this Court passed the following order :- “ At the request of Mr. Rajguru appearing for defendant no.2 and to enable him to go through the papers and make submissions on the framing of issues, S.O. 25th August 2009. No further adjournments will be granted.” 10. On 4th September 2009, the learned Advocate for the parties including Mr. Patel for defendant no.1 were heard by this Court [Coram : S.C. Dharmadhikari, J.] and issues were framed. Plaintiffs were directed to file their affidavits of documents and evidence for admission and denial of documents. Thereafter, 10 inspection of the documents relied upon by the plaintiffs was offered to the defendants. On 18th November 2009, the Advocate for the plaintiffs sought time on the ground that the Advocate for the defendant no.1 has just informed them that none of the documents relied upon by the plaintiffs were admitted by them. This Court whilst granting time, recorded as follows :- “In 1969 suit, the plaintiffs have yet to file their affidavit of evidence. These are not satisfactory state of affairs and ordinarily, the request for adjournment made today could not have been granted without imposing terms including payment of heavy costs, yet, as a matter of pure indulgence and since it is reported that the Counsel is in personal difficulty, the suit is placed under the same caption on 24th November 2009, First on Board. If there is no affidavit filed before that date, the Court will proceed to dismiss the suit for want of prosecution.” 11. On 8th December 2009, the suit came up before this Court [Coram : S.C. Dharmadhikari, J. ] for admission and denial of documents. The defendant no.1 who throughout from August 2009 had repeatedly appeared before this court and not made any grievance about the reconstruction of records, for the first time, inter-alia alleged that the defendants were not aware of the reconstruction of the plaint and the written statement and other 11 documents and papers in the record. The grievance of the defendants was not taken cognizance of by this Court, by inter-alia recording as under - “However, what is relevant and material is that the plaint and the written statement have been reconstructed. Based on the reconstructed record, issues have been framed and directions were given to lead evidence. Accordingly, plaintiffs have filed their affidavit of evidence and have also tendered compilation of documents.” The Court therefore, proceeded with the admission and denial of documents and substantial number of documents were marked as exhibits. The order passed by this Court dated 8th December 2009 not taking cognizance of the grievance of the defendants pertaining to the reconstruction of records was admittedly not challenged by the defendants. 12. On 16th December 2009 when the suit came up before this Court [Coram : S.C. Dharmadhikari, J.] for recording of evidence. Mr. Patel, Advocate for defendant no.1 informed the Court that he has moved a Chamber Summons no. 1999 of 2009 seeking inter-alia, recasting of issues and some directions. This Court therefore, on 16th December 2009 passed the following order :- “This matter was placed for recording evidence. 12 Repeatedly, I have impressed upon the parties that this is one of the oldest suit on the file of this Court. The suit is of the year 1969 and evidence is yet not recorded in this suit. When it was placed for recording evidence, now it is stated by Mr. Patel appearing for defendant no. 1 that he has moved a chamber summons no.1999 of 2009, seeking inter alia, recasting of issues and some directions. List this chamber summons first on board on 4th January 2010.” 13. On 4th January 2010, this Court after recording how the trial in this suit has been delayed, allowed an additional issue pertaining to the valuation of the plaint. On 4th January 2010, Mr. Patel, the learned Advocate appearing for defendant no.1 informed this Court that his client is desirous of challenging the order passed by Mr. Swami, Master and Assistant Prothonotary on 10th February 2009, pertaining to reconstruction of the proceedings and this Court should direct the Office to permit defendant no.1 to take search of the Registers containing orders from 1969 till the year 2009. In the said chamber summons, stay on further hearing of the above suit was also sought. This Court rejected the submission made on behalf of defendant no.1 to take inspection of the registers from 1969 till the year 2009 and for stay on further hearing of the suit by the following observations :- 13 “The learned Advocate appearing for the defendant no. 1 has also submitted that since defendant no.1 is desirous of challenging the order dated 10th February 2009 for reconstruction of the proceedings, this Court should direct the office to permit the defendant no.1 to take search of register of the orders from 1969 till the year 2009. It is submitted that such search is required because it is possible that the suit might have been dismissed either under Rule 986 of High Court (Original Side) Rules for non-removal of objections or on default of the parties. The defendant no.1 who is admittedly a party to the suit since the last 40 years, did not deem fit over these years to take any inspection of the Court records. The order of reconstruction of the proceedings is passed on 10th February 2009 after which proceedings are reconstructed in July 2009 and issues framed on 4th September 2009. Admission and denial of the plaintiffs documents is over on 8th December 2009. The suit was fixed for cross-examination of the plaintiffs’ witness on 16th December 2009, which the defendants have avoided by taking out the present chamber summons. No basis whatsoever is made out for the defendant no.1 to contend that the suit may have been dismissed for non-removal of objections or in default. I am convinced that the directions now sought are only with a view to further delay the hearing of the suit, which cannot be allowed.” The suit was therefore, adjourned to 8th January 2010 at 3.00 p.m. 14 for cross-examination of the plaintiffs’ witness. On 8th January 2010, Mr. Patel, Advocate for defendant no.1 expressed his inability to cross-examine PW-1 on the ground that he has not received the necessary documents from defendant no.1. Therefore, after some cross-examination, the suit was adjourned to 15th January 2010 at 11.00 a.m. for further cross-examination. 14. Since the cross-examination of PW-1 was to start on 15th January 2010 at 11.00 a.m., the rest of the board was fixed at 3.00 p.m. However, Mr. Patel, the Advocate for defendant no.1 once again expressed his inability to cross-examine the plaintiffs’ witness on the ground that he has not received the necessary documents from his clients, the defendant no.1. This Court therefore, on 15th January 2010, inter-alia recorded :- “ Such conduct on the part of defendant no.1 apart from being unfair and irresponsible also indicates that the defendant is interested in delaying the trial of this suit which is filed in the year 1969.” 15. Having failed at every stage to have the trial of the above suit stayed, defendant no.1 took out the present notice of motion once again seeking a stay of the trial of suit on the ground that defendant no.1 was not having proper notice from the Court Office or from the plaintiffs, when Mr. Swami, Master and 15 Assistant Prothonotary passed the said order dated 10th February 2009. As stated earlier, Mr. Swami, Master and Assistant Prothonotary had on 10th February 2009 not reconstructed the Court records. He had only allowed reconstruction of the records and had directed the parties to submit true copies of the respective records and proceedings in the above suit. The said order was conveyed inter-alia to defendant no.1 on 18th February 2009 and was also requested to attend a meeting with the plaintiffs to enable the parties to reconstruct the pleadings. A compilation of records was also forwarded by the plaintiffs to the defendant no.1. The said request was turned down by defendant no.1 as set out hereinabove by stating that the plaintiffs should get all the necessary requirements/ information from the Central Govenment and that the Office of defendant no.1 has got no important file, etc. At no time, defendant no.1 came forward to reconstruct the records and in fact, by its letter dated 29th July 2009 informed the Advocates for the plaintiffs that defendant no.1 has not received the said reconstructed proceedings and that the plaintiffs should serve/forward the proceedings (reconstructed by the plaintiffs) to the defendant no.1. The Advocate for the plaintiffs have by their letter dated 30th July 2009, reminded the Advocate for the defendant no.1 that the records were already furnished to the 16 defendant no.1 under the cover of their letter dated 18th February 2009. However, once again, copies of the proceedings were forwarded to defendant no.1 on 30th July 2009. The defendant no.1 has not made any grievance qua reconstruction of papers since August 2009 before this Court and have also participated in framing of issues on 4th September 2009 which could not have been done if defendant no.1 was not in possession of the reconstructed records or had any objections qua the reconstructed records. The defendant no.1 for the first time tried to make a grievance qua the reconstruction of records before this Court on 8th December 2009 which was not taken cognizance of, on the ground that the issues have already been framed on the basis of the reconstruction of the records. In the present notice of motion, defendant no.1 has relied upon a statement prepared by the Court Office as on 28th August 2008 wherein the above suit is not shown as pending before this Court. As set out earlier, on 14th August 2008 itself, the plaintiffs were told by the Court Office that the original Court proceedings in the suit are not traceable. Therefore, it is obvious that if a list of pending suits is prepared on or after 28th August 2008 no mention of the suit is found therein. The defendant no.1 is therefore, not entitled to any reliefs sought in the notice of motion. 17 16. The present notice of motion was earlier argued by Mr. Patel for some time on 1st February 2010 when it was pointed out to him that the defendant no.1 cannot be once again allowed to raise the issue pertaining to reconstruction of records since the same issue was raised by the defendant no.1 on earlier occasions and was rejected by this Court by its orders dated 8th December 2009 and 4th January 2009. At that time, Mr. Patel informed the Court that he appreciates that he cannot raise the issue of reconstruction of records once again and that he is also not submitting that the cross-examination of PW-1 which is being recorded should be stayed. Mr. Patel submitted that he will be satisfied if he is allowed to go through certain registers to satisfy himself that the suit was not dismissed in default. Mr. Patel submitted that since Mr. Rajguru has informed the Court that a letter was received from the Court Office some time in the year 1977 informing the defendants that the suit is likely to come up for final hearing after the May vacation of 1977, he should be allowed to see some of the registers containing the minutes. Mr. Mathkar, Master and Asstt. Prothonotary (Judl.) was also present before the Court at that time and he showed this Court the suit Register for the year 1969, wherein several pages were torn and/or missing. The said Register was also shown to the 18 Advocates for the parties. Thereafter, only by way of indulgence, Mr. Patel was allowed to take inspection of the minutes books with a clarification that the trial shall proceed in the meantime. On 3rd February 2010, at the request of Mr. Patel he was allowed to inspect the records maintained at the G.T. Hospital and also at the Court premises. However, yesterday, i.e. on 9th February 2010, Mr. Patel, Advocate for defendant no.1 submitted before the Court that since this Court is not hearing his notice of motion on merits, he is unable to get the decision of this Court qua the stay on further proceedings in the suit and in the absence of an order of this Court, he is also unable to go before the Appeal Court, seeking stay of the suit. This outburst on the part of the Advocate for defendant no.1 was obviously because yesterday, i.e. on