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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S.DIAS, J.
V.Safarullah S/o.Koya Kunji – Appellant
Versus
Gracy Josephine Lambie W/o.Andrew Rodger Lambie – Respondent
OP(C).No.1428 of 2020
Decided on : 07-12-2020
Civil Rules of Practice, Kerala, 1971- Chapter VII- Missing of the record -Will has been misplaced/lost while the document was in 'custodia legis'-The Record Clerk had no authority to return Exts P5 to P7-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.
Statement of facts:
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.
Finding of the court:
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.
Result: Original petition allowed
Certainly. Based on the provided legal document, the key points are as follows:
The case concerns the procedure to be followed when a court record goes missing, particularly when the record is in "custodia legis" (custody of the law), such as in the case of a Will (!) [15000491880001].
The Court found that the Record Clerk had no authority to return certain documents (Exts P5 to P7) under the applicable rules, and the failure to properly handle the missing record was not brought to the notice of the District Judge before endorsing Ext P8 [15000491880008].
The official procedures mandated that the District Judge should have conducted a thorough search for the missing record and, if unsuccessful, reported the matter promptly to the Court, including efforts made to reconstruct the record as a last resort (!) (!) .
The Court emphasized that the failure to follow these procedures, including the improper return of documents and the lack of a proper search, was against the directions and procedures prescribed in the official memorandum and applicable rules [15000491880008].
The Court held that the endorsement (Ext P8) and the return of Exts P5 to P7 were erroneous and unsustainable in law, and therefore, liable to be set aside [15000491880010].
The Court directed the District Court to accept Exts P5 to P7 and to take necessary steps in accordance with the official memorandum, including issuing a certified copy of the Will, and to pass appropriate orders on Ext P5 (!) .
The overall ruling was to ensure adherence to the proper procedures for handling missing records, especially in cases where the record is in judicial custody, to prevent miscarriage of justice and ensure proper legal process (!) (!) .
These points summarize the Court’s findings, the procedural lapses identified, and the directions issued to ensure proper handling of missing case records, consistent with the applicable rules and official memoranda.
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.
2. 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.
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 petitioner.
7. 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'.
8. 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:
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.
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 issue
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