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2025 DIGILAW 59 (ALL)

Prem Chand Deceased v. Charat Kumar Bansal

2025-01-16

KSHITIJ SHAILENDRA

body2025
JUDGMENT : Kshitij Shailendra, J. ON THE ISSUE OF SUMMONING VIS-A-VIS RETAINING OR RETURNING THE ORIGINAL RECORD 1. Shri Sumit Daga, learned counsel for the respondent, raised an issue which prima facie appears to be quite small, but has a significant value. The matter is being treated as of general importance qua a limited issue that is coming up before this Court in many cases. 2. The case was mentioned in the morning, not for the purposes of its hearing as the time constraints otherwise do not allow hearing of the matter today, but making a prayer as regards return of the original record of the first Appellate Court and the trial court which, earlier, had been summoned by this Court without admitting the appeal. 3. Referring to the order dated 19.01.2018, it is contended that, till today, the instant appeal has not been admitted but the Court had summoned the original record seven years ago, and, on 07.03.2019, an order was passed to the effect that mere pendency of appeal would not mean passing of any interim order staying execution of decree. Submission is that the matter is being adjourned for last several years and though the appeal has not been admitted, since the original record is lying before this Court for hearing on admission, the execution proceedings are held up. He requests the Court to remit back the original record to the District Judgeship. 4. It is quite common and part of proceedings of this Court that whenever this Court summons the record of the proceedings of sub-ordinate court, particularly those decided finally, it is done so as to facilitate consideration of the matter before it, either for admission or for final hearing. Reason is that the Court wants to peruse the documents forming part of the record of sub-ordinate Court. Therefore, irrespective of the fact that the appeal or revision has or has not been admitted, summoning the original record would create some unforeseen problems. 5. Legislative mandate contained under Order XLI Rule 5 of Code of Civil Procedure or U.P. amendments made in Section 115 of C.P.C. is clear to the effect that mere filing of an appeal or revision would not operate as stay against the proceedings. The said provisions are quoted for a ready reference:- Order XLI Rule 5 of Code of Civil Procedure "5. The said provisions are quoted for a ready reference:- Order XLI Rule 5 of Code of Civil Procedure "5. Stay by Appellate Court - (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree." Sub-Section (4) of Section 115 of Code of Civil Procedure (U.P. Amendment) "(4) A revision shall not operate as a stay of suit or other proceedings before the court except where such suit or other proceedings is stayed by the superior court." 6. By virtue of Order XLII Rule 1 of Code of Civil Procedure, 1908, provisions of Order XLI are also made applicable to appeals from appellate decrees and, hence, Rule 5 of Order XLI would also apply to second appeals. It is quoted hereunder:- " 1. Procedure - The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees." 7. Similarly, vide Order XLIII Rule 1 of Code of Civil Procedure, 1908, provisions of Order XLI are also made applicable to appeals from orders and, hence, Rule 5 of Order XLI, as quoted above, would also apply to appeals from orders. 8. In this regard, this Court called for relevant circular/notification etc. from the office of this Court so as to understand as to on what basis original/photostat copy of the record is summoned. The officials concerned placed before the Court a copy of order dated 25.04.2018 passed by the Supreme Court in Asian Resurfacing of Road Agency P. Ltd. and another vs. Central Bureau of Investigation , and submitted that it is pursuant to the directions contained in the said order that now the photostat copy of the record is being summoned and not its original. For a ready reference, the order dated 25.04.2018 is quoted hereunder:- "1. Heard learned counsel for the parties. 2. In view of judgment of three Judge Bench dated 28th March,2018 and after considering the material on record, we do not find any ground to interfere with the order framing charge. 3. Accordingly, the trial court is directed to proceed with the matter pending before it. Heard learned counsel for the parties. 2. In view of judgment of three Judge Bench dated 28th March,2018 and after considering the material on record, we do not find any ground to interfere with the order framing charge. 3. Accordingly, the trial court is directed to proceed with the matter pending before it. All contentions of the parties are left open which may be gone into by the trial court. Parties are directed to appear before the trial court on 14 th May, 2018. 4. To give effect to directions in judgment of this Court dated 28th March, 2018, noted above, we direct that wherever original record has been summoned by an appellate/revisional court, photocopy/scanned copy of the same may be kept for its reference and original returned to the trial courts forthwith. 5. We also direct that if in future the trial court record is summoned, the trial courts may send photocopy/scanned copy of the record and retain the original so that the proceedings are not held up. In cases where specifically original record is required by holding that photocopy will not serve the purpose, the appellate/revisional court may call for the record only for perusal and the same be returned while keeping a photocopy/scanned copy of the same. 6. A copy of this order be sent to all the High Courts. The appeals are disposed of." 9. The aforesaid order was passed by the Supreme Court in the matter of Asian Resurfacing (supra) and, later on, a judgment was passed in same matter reported in (2018) 16 SCC 299 containing directions in paragraphs 36 and 37 of it regarding automatic vacation of interim orders after expiry of six months. The said directions were, later on, set aside by the Constitution Bench of the Supreme Court in High Court Bar Association, Allahabad vs. State of Uttar Pradesh and others , (2024) 6 SCC 267 . This Court finds that reversal of previous decision in Asian Resurfacing by the subsequent decision in High Court Bar Association (supra) is an authority on the issue as to whether stay order granted by the High Court would automatically lapse after expiry of six months period. This Court finds that reversal of previous decision in Asian Resurfacing by the subsequent decision in High Court Bar Association (supra) is an authority on the issue as to whether stay order granted by the High Court would automatically lapse after expiry of six months period. The judgment of the Supreme Court, with great respect, would not affect the directions contained in the order dated 25.04.2018 insofar as summoning of the photostat/scanned copy of the record of subordinate court is concerned nor did the said issue form subject matter of deliberations or consideration before the Apex Court. 10. In view of the above, since, even after reversal of the decision in Asian Resurfacing (supra), the Registry is summoning the photostat/scanned copy of the records of the courts subordinate to this Court, following directions are issued to the office of this Court:- (a) Henceforth, the original record shall not be summoned by the office, unless otherwise specifically directed by this Court in a particular case and only photostat/scanned copy of the same shall be summoned. (b) Whenever, in the past, original record has been summoned by this Court, office shall remit back the same to the concerned District Judgeship with a direction to the concerned District Judgeship to immediately send photostat/scanned copy of the said record to this Court and, thereafter, it is the said photostat/scanned copy that shall be kept for the purpose of consideration of the matter by this Court pursuant to previous directions issued by it. 11. Insofar as the present case is concerned, since the Court has already summoned the original record for hearing on admission, this Court is of the view that photostat copy of the record would serve the purpose. 12. Office is directed to remit back the original record of the courts below to the District Judgeship within two weeks. The District Judgeship, after receipt of record, shall get photostat copy of the same and shall forthwith send the same to this Court. It shall, then, be placed before this Court whenever the matter is listed for hearing on admission. 13. The Registrar General is directed to issue necessary circular/communication to the office of this Court as well as all the District Judgeships to act as per directions contained in paragraph No 10 of this order.