Kerala High Court Issues Memorandum That Lays Down The Directions To Be Followed In Case A Record Goes Missing.

OP(C).No.1428 OF 2020 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY THE 07TH DAY OF DECEMBER 2020 16TH AGRAHAYANA 1942 OP(C).No.1428 OF 2020 AGAINST THE ORDER JUDGMENT IN C.A.NO.721 2020 DATED 2.6.2020 IN OP 48 1964 OF THE DISTRICT COURT THALASSERY AGED 61 YEARS S O.KOYA KUNJI SHAHI NIVAS P.O.VALAPATTANAM SMT.C.DEVIKA RANI KAIMAL GRACY JOSEPHINE LAMBIE W O.ANDREW RODGER LAMBIE RESIDING AT NO.99 CANTONMENT KANNUR 670 001 THIS OP HAVING BEEN FINALLY HEARD ON 01 12 2020 THE COURT ON 07 12 2020 DELIVERED THE FOLLOWING OP(C).No.1428 OF 2020 C.S.DIAS J OP(C) No.14220 Dated this the 7th day of December 2020 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 Willdated 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 before the Court of the District Judge Thalasserry seeking letters of administration with OP(C).No.1428 OF 2020 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 OP(C).No.1428 OF 2020 Court to issue the certified copy of the Will. 3. When the original petition came up for consideration on 17.11.2020 this Court had called for a report from the District Court 4. 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. 5. 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. 6. Heard the learned counsel appearing for the The endorsement on Ext P9 original petition OP(C).No.1428 OF 2020 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 This Court after noticing the increasing incidents of missing of case records has promulgated Memorandum dated 30.1.2019 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 THE HIGH COURT OF KERALA Date:30.1.2019 Sub: Missing of records of subordinate Courts missing on an increase general directions issued reg OP(C).No.1428 OF 2020 Ref: 1. High Court Circular No. 26 1958 2. High Court Circular No. 13 1962 3. 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 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 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 OP(C).No.1428 OF 2020 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 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 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 OP(C).No.1428 OF 2020 PG. Ajithkumar. Registrar(Bold letters given 9. By virtue of the provisions in Chapter VII of the Civil Rules of Practice Kerala 1971the 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 10. 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 OP(C).No.1428 OF 2020 ordered the reconstruction of the records. 11. 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 OP(C).No.1428 OF 2020 PETITIONER S S EXHIBITS TRUE COPY OF THE WILL EXECUTED BY LATE ANDREW RODGER LAMBIE DATED 04.01.1961 TRUE COPY OF THE ORDER OF GRANTING LETTER OF ADMINISTRATION DATED 30.07.1965 ISSUED BY THE LEARNED DISTRICT JUDGE THALASERY TRUE COPY OF THE BASIC TAX DATED 14.11.2019 ISSUED BY VILLAGE OFFICE TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15.11.2019 ISSUED BY THE VILLAGE OFFICE KANNUR TRUE COPY OF THE APPLICATION DATED 27.02.2020 SUBMITTED BY THE PETITIONER TRUE COPY OF THE VAKALATH EXECUTED BY THE PETITIONER IN FAVOUR OF M.K.ANIL KUMAR ADVOCATE THALASSERY TRUE COPY OF THE LIST OF DOCUMENTS SUBMITTED BY THE ADVOCATE OF THE TRUE COPY OF THE ENDORSEMENT DATED 02.06.2020 MADE IN THE REAR SIDE OF EXT.P7 LIST OF DOCUMENTS EXHIBIT P9 CERTIFIED COPY OF THE ORIGINAL PETITION NO.48 1964 ON THE FILES OF THE DISTRICT COURT THALASSERY

Summary: The Kerala High Court noticed that there have been many instances where the court records and documents have been missing and hence in light of these events the High Court has issued an ‘Office Memorandum’ laying down the procedure for the subordinate courts in case of missing records. The memorandum was laid down by the Kerala High Court in the case of V.Safarullah V. Gracy Josephine Lambie, OP (C) No. 1428 of 2020. The brief facts of this case are that the Petitioners are willing to construct a building on a property that they own. The Petitioners approached the Bank for financial assistance and the Bank authorities have demanded the ‘Will’ made with respect to the property. The property originally belonged to one Andrew Rodger Lambie. By an unregistered will he bequeathed the property in favour of his wife that is the Respondent in this case. The Respondent filed for an order of protection before the court seeking letter of administration along with the Will. Later the Respondent sold this property to the Petitioner and now the property is vested with the Petitioner and his siblings. As the Petitioners approached the District Court to issue the ‘Will’, it was stated by the court that the ‘Will’ has been misplaced while in the custody of the court. Hence, in light of  the numerous cases of records and documents being misplaced by the Courts an Office Memorandum was issued which laid down directions as follows – Violation of any of the directions, the HC stated, would be taken seriously. The High Court instructed the Subordinate Court to carry out the necessary instructions and pass appropriate orders in this case.