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2009 DIGILAW 2340 (ALL)

RADHEY SHYAM v. DEPUTY DIRECTOR OF CONSOLIDATION

2009-05-28

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Yanendra Pandey, learned counsel for the petitioner, Sri M.N. Singh, learned counsel for respondent No. 2, learned Standing Counsel and perused the material on record. 2. This petition questions the legality of the order passed by the Deputy Director of Consolidation, Varanasi (in short “the DDC”), whereby he has rejected the application moved on behalf of the petitioner for restitution of the judgment of the Consolidation Officer dated 30th July, 1994, on the ground that the entire evidence, which was available on record has been scanned by the appellate authority (Settlement Officer, Consolidation) and therefore applying the principles of merger, the DDC has arrived at the conclusion that loss of the judgment of the Consolidation Officer will in no way impede the proceedings. 3. Sri Yanendra Pandey,learned counsel for the petitioner has submitted that the aforesaid approach of the DDC is erroneous inasmuch as the findings and the reasons recorded in the order of the Consolidation Officer had to be necessarily gone into before any decision could be taken and that since judgment was not available on record, the appellate authority committed grave error by proceeding to decide the appeal and ought to have remanded the matter for a fresh trial. He, further, submits that the DDC has also errred by rejecting the application for restitution and the order impugned causes serious prejudice to the petitioner. 4. Sri M.N. Singh, who has put in appearance on behalf of the contesting respondents urged that the loss of the judgment of the Consolidation Officer was the doing of the petitioner’s son Rajendra, who was subjected to proceedings in a criminal case. Sri Singh has, further, submitted that in view of the law laid down in the case of Ram Khelawan v. Deputy Director of Consolidation, 1987 RD 350, the question of reconstruction of the judgment does not arise as it is admitted between the parties that neither the judgment nor the copy thereof is available. 5. He, further, contends that the gist of the judgment and its operative part was very much available on the order-sheet and the same was made the foundation of the appeal filed by the petitioner. A copy of the memorandum of appeal has been placed before the Court to demonstrate the same. 5. He, further, contends that the gist of the judgment and its operative part was very much available on the order-sheet and the same was made the foundation of the appeal filed by the petitioner. A copy of the memorandum of appeal has been placed before the Court to demonstrate the same. He, further, submitted that the entire evidence was before the appellate authority as well, and therefore no prejudice was caused to the petitioner to represent his cause before the appellate authority. He contended that this is not a case of loss of evidence as was in the case of Ram Khelawan (supra) and, therefore, there is no ground to entertain the request of the petitioner, which has been rightly declined by the DDC. 6. In Rejoinder, Sri Yanendra Pandey has urged that so far as the criminal case is concerned, there is already an order of acquittal and, therefore, there is absolutely no cause for the respondents to derive any advantage out of the said alleged incident in which the petitioner’s son was sought to be falsely implicated. 7. The crucial question in the writ petition is as to whether the DDC has rightly refused to enter into the question of reconstruction of the judgment of the Consolidation Officer and as to whether the application of the petitioner was rightly rejected or not. 8. It is evident that both the parties admit that there is no other copy of the judgment of the Consolidation Officer available anywhere. It is also admitted that the separate order of the Consolidation Officer went missing as it was forcibly snatched, the moment it was pronounced in the Court. 9. Thus it is a case where the judgment was delivered about which there is an endorsement on the order-sheet. This fact is also not disputed, that the petitioner contested the appeal and he had full opportunity and access to every evidence at the appellate stage that was available before the Consolidation Officer. The order of the appellate authority dated 3rd September, 1996 is Annexure 6 to the petition. A perusal of the said order would indicate that the appellate Court found that the order-sheet has been genuinely recorded by the Consolidation Officer. It has also been found by the appellate Court that full opportunity was given to the parties. The order of the appellate authority dated 3rd September, 1996 is Annexure 6 to the petition. A perusal of the said order would indicate that the appellate Court found that the order-sheet has been genuinely recorded by the Consolidation Officer. It has also been found by the appellate Court that full opportunity was given to the parties. The appellate authority has discussed the evidence afresh and thereafter on merits dismissed the appeal filed by the petitioner. It is, therefore, evident that the evidence continued to be available on record, and whatever the correctness or otherwise of the order of the Settlement Officer Consolidation is concerned, the same is yet to be assessed by the DDC while deciding the revision. 10. The reconstruction of records can be made, under the inherent powers of the Court. It is the duty of the Court to ensure the reconstruction of a lost record. The instant case is, however, peculiar in the sense that the judgment, which was on separate sheets, is not available nor any copy thereof is available with either of the parties. However, it is not a case of total loss of the judgment inasmuch as in the undisputed order-sheet which stands recorded, the gist of the judgment and the operative portion thereof are intact. The separate-sheets containing the judgment of the Consolidation Officer are not available and no copy thereof is available as such, in such a situation it is almost impossible to reconstruct the said lost sheets of the judgment. The Court, even, in its inherent powers cannot, therefore, create something which cannot be reconstructed in such a peculiar situation. However, the Court, in its inherent powers can proceed in order to arrive at the truth of the matter for which no hard and fast rule can be enunciated. This would be dependant upon the facts and circumstances of each case, as has been observed in the case of Ram Khelawan (supra). 11. The findings recorded by the DDC that the order of the Consolidation Officer has merged into the appellate order is perfectly justified. The appellate Court’s judgment is very much available and the evidence which has been led by the parties is available on record. In such a situation, the Appellate Court was perfectly justified in proceeding to decide the matter on merits. The appellate Court’s judgment is very much available and the evidence which has been led by the parties is available on record. In such a situation, the Appellate Court was perfectly justified in proceeding to decide the matter on merits. Not only this, the DDC has wide powers under Section 48(3) of the U.P. Consolidation of Holdings Act to assess the contentions on behalf of the parties and the evidence led by them and thereafter arrive at its own conclusion on the matter decided by the appellate authority. 12. In my opinion the non-availability of the judgment of the Consolidation Officer would in no way impede or prejudice the case of the petitioner as the petitioner can still point out from the evidence on record, which is available as to whether the evidence had been rightly assessed by the Consolidation Officer or by the Settlement Officer Consolidation or not. The petitioner is not deprived or denuded of any opportunity that may adversely affect his interest in the litigation. However, this question is also open to the petitioner to be raised before the revisional authority and the petitioner can point out any discrepancy or any injustice that may have been caused to him. 13. The law relating to reconstruction of records was considered by a Division Bench of our Court in the case of U.P. State Road Transport Corporation v. Smt. Geeta Devi and others, 1983 ACJ 49. The Division Bench, relying on the provisions of Section 151 Civil Procedure Code and the Rules contained in General Rules (Civil) as applicable to the subordinate Courts in the State of U.P., came to the conclusion that Courts have inherent powers and further relied on the Supreme Court decision in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , to hold that such a power should be exercised by the Court to do justice between the parties before it. 14. The Court further held that it is the duty of the Court to take care that the act of the Court does no injury to any of the litigants. Accordingly, if on account of some accident, the record of a Court is lost or destroyed, then it is the duty of the Court to reconstruct the same. 14. The Court further held that it is the duty of the Court to take care that the act of the Court does no injury to any of the litigants. Accordingly, if on account of some accident, the record of a Court is lost or destroyed, then it is the duty of the Court to reconstruct the same. On the issue of re-construction, the Division Bench further discussed the impact of the ratio of the Madras High Court decision reported in AIR 1923 Mad 647 and a couple of more judgments, which are referred to therein. The said judgment was, however, relating to the destruction of records in a fire. The Court permitted the parties to produce the copy of the statements of the witnesses and in the event such statements were no longer available, then it was left to the Tribunal to ask the parties to re-produce the witnesses for making the statements. 15. In the instant case, it is not the case of either of the parties that any original evidence has been lost. It is only the judgment of the Consolidation Officer which is missing and as noted above, it cannot be reconstructed as it is an impossible situation. This Court, therefore, cannot issue a mandamus to the authorities to do an impossible act. The direction, if issued, can never be complied with as there is no source available so as to retrieve the lost judgment. This is evident from the decision of the criminal Court where the petitioner’s son has already been acquitted. 16. Sri Yanendra Pandey, learned counsel for the petitioner then urged that the observations of the DDC that he will proceed only on the basis of what is recorded in the judgment of the Settlement Officer Consolidation would prejudice the cause of the petitioner. 17. The aforesaid apprehension is unfounded inasmuch as when the DDC states that the case can be decided on the strength of the judgment of the Settlement Officer Consolidation, the said observation of the DDC does not mean to say that he is precluded from considering any evidence which is already on record or that the petitioner is prevented from advancing his cause in any manner what-so-ever. 18. 18. Resultantly, there is no necessity to interfere with the impugned order passed by the DDC and the writ petition is, accordingly, dismissed with the observation that the DDC shall proceed to decide the revision in accordance with law after giving opportunity to the concerned parties as expeditiously as possible within three months from the date of production of a certified copy. ————