TMI Blog2012 (1) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... he Defendants to the suit are respectively a company owned and controlled by the State of Madhya Pradesh, the State of Madhya Pradesh and the Union of India. The suit in question, L.C. Suit 36 of 1969 had been transferred to the list of long causes by Mr. Justice Nain on 12 August 1969. In a statement prepared by the registry of this Court on 31 January 1992 the suit was not shown to be pending before the Court. The statement prepared by the registry of the Court which showed the position of suits as on 1 January 1992 did not reflect the pendency of any suit of that year. A similar position obtained in a subsequent list which was prepared by the registry on 26 August 2008. 2. On 13 August 2008, nearly thirty years after the suit was instituted a letter was addressed by the advocate for the Plaintiffs to the Defendants informing them that they were desirous of taking search of the papers and proceedings in the suit on 14 August 2008 in the office of the Court when the Defendants were informed to remain present if they so desired. Simultaneously a letter was addressed to the Prothonotary and Senior Master for seeking search of the proceedings. The Plaintiffs, the Court is inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the apprehension which was expressed on behalf of the Appellant was that it was likely that the suit may have been dismissed in default. The Court noted that though the Appellant was not in possession of any order of the Court dismissing the suit in default, the Court was informed that the relevant pages of the suit register of 1969 were torn. The original record of the suit was not traceable. In this background, the Division Bench in its order dated 9 April 2010 observed as follows : We had indicated to Learned Counsel that it would be appropriate if the Appellant has a fair opportunity to inspect the Minute Books where a record of the orders passed by the Learned Trial Judges in Long Cause Suits is maintained. As noted earlier, the Learned Counsel for the Appellant sought an opportunity to inspect the minutes Books in order to be satisfied that the suit still continues to be pending and that it has not been dismissed in default. The original record of the suit was not traceable; it is common ground that the pages from the suit register of 1969 are torn and the statement prepared by the Registry on 26 August 2008 does not show the suit to be pending. The suit was institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n can continue during the progress of the trial. We are of the view that it would not be appropriate and proper in the interests of justice to allow the trial to proceed when the basic issue as to whether the suit continues to remain pending on the file of this Court is still to be resolved. This assumes some significance because of the circumstance that in the suit of 1969 the entire original record is untraceable. The Plaintiffs themselves do not appear to have take steps to prosecute the suit until 2008. In the suit register of 1969, the page relating to the suit in question, the Court is informed by Counsel, has been torn away. 8. On 23 December 2010 the learned Attorney General of India who appeared on behalf of the Defendants stated before the Court that the directions which were issued by the Court stood worked out since inspection had been taken and that the First and Third Defendants would move a Motion before the learned Single Judge on the basis of the inspection which was carried out in support of the contention that the suit does not remain pending on the file of the Court. Pursuant thereto a Motion was taken out before the learned Single Judge which came to be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Suit Register at Sr. No. 3, there were entries of suits bearing Nos.318 to 898 of the year 1969. In the Suit Register at Sr. No. 4, there were entries of suits bearing Nos.973 to 1153 while in the Suit Register at Sr. No. 5 there were entries of suits bearing Nos.51 to 969. 22. No entries for suits bearing Nos.1 to 50 for the year 1969 were available as the relevant pages of the Suit Register were torn and were not forthcoming. 11. In paragraph 44, the enquiry officer has noted that inspite of a wide ranging examination of the available records, there was no trace of Suit No. 36 of 1969 . Since the pages containing the entries for Suit Nos. 1 to 50 for the year 1969 are missing from the suit register, the enquiry officer has not been able to definitely opine if the suit was dismissed in default or was no longer borne on the file of the Court as on 14 January 2009. In the concluding paragraph of his report the enquiry officer has expressed his sense of consternation about the fact that the entire record relating to the suit maintained in the Union Ministry of Law and Justice at Mumbai had also gone missing and the pages from all the relevant registers where the suit co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich immediately preceded the suit in question were disposed of on 21 March 1978 by Mr. Justice Lentin and on 20 December 1972 by Mr. Justice Nain and similarly Suits 37, 38 and 39 have also been disposed of as indicated in annexure G2; (v) There are unexplained silences in the conduct of the proceedings on behalf of the Plaintiffs. Several Plaintiffs had died over the years and no application, to the knowledge of the Defendants, had been brought out to bring the legal representatives on the record. In the period prior to 1992 when the first list was prepared by the registry showing the pending suits, there is no evidence of any activity whatsoever on the part of the Plaintiffs with respect to the conduct of the suit. In 1997, the erstwhile advocates for the Plaintiffs, Crawford Bayley Co. were discharged when the present advocates M/s. Udwadia and Udeshi came on the record. There is no explanation whatsoever as to how there was a complete silence even on the part of the present advocates after 1997 till 2008 when for the first time inspection of the records was sought. 13. The learned Attorney General of India has supported the view of the enquiry officer and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in fact for a direction that the suit stood disposed of. In the absence of any judicial order recording the disposal of the suit, the only conclusion which can be drawn is that the suit continues to remain pending on the file of the Court; v) The power of the Court to order an enquiry by the CBI has to be exercised sparingly and subject to the caution which has been addressed in several judgments of the Supreme Court. A roving enquiry into the commission of an offence is not contemplated. The power to order an investigation by the CBI has been conferred upon the High Court acting as a constitutional Court under Article 226 and the power cannot be exercised when the Court acts in appellate proceedings arising out of the Ordinary Original Civil Jurisdiction exercised by a Single Judge at the trial of a suit. The rival submissions now fall for determination. 15. A suit for the redemption of a mortgage of 1925 was instituted on the Original Side of this Court in 1969. The singular trace which is available in the records of the Court pertaining to the suit is an order passed by Mr. Justice Nain transferring the suit to the list of Long Causes on 12 August 1969. The in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case where the pleadings of a suit are untraced. The procedure to be followed for reconstruction of the record of a suit is the subject of administrative directions issued by the registry on the Original Side on the directions of the then Chief Justice on 7 August 1995. Reconstruction of the record postulates that the suit continues to remain pending on the file of the Court. Learned Senior Counsel appearing on behalf of the Plaintiffs has fairly stated in response to a query of the Court that the Plaintiffs have no explanation for what steps if any that they took in the matter between 1969 and 2008. There is no explanation or disclosure about what steps were taken by Crawford Bayley Co. prior to 1997 and thereafter by Udwadia Udeshi till 2008. The circumstances which have been drawn to the attention of the Court indicate a strong prima facie case that the records of the Court have been unauthorisedly destroyed in order to obliterate any evidence of the proceedings of the suit from the registry on the Original Side. Learned Counsel appearing on behalf of the Plaintiffs submitted that at some stage, the Appellant proceeded on the basis that the suit was still pending. How an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts of record. As superior Courts, the High Courts exercise inherent and plenary powers. Unless the exercise of jurisdiction is barred either expressly or by necessary implication, the powers of the High Courts to do justice in accordance with law is in that sense untrammeled .This was recognised in the decision in M.M.Thomas (supra) where the Bench placed reliance in the earlier decisions in Naresh Shridhar Mirajkar v. State of Maharashtra AIR (1967) SC 1 and MV Elisabeth v. Harwan Investment Trading Pvt. Ltd. AIR (1993) SC 1014. 20. In Common Cause v. Union of India (1999) 6 SCC 667, the Supreme Court held that no case was made out against the Petitioner for any case being registered against him under Section 409 of the Penal Code nor was there any occasion to direct an investigation by the CBI. The direction issued by the High Court to the CBI to investigate any other offence was held to be wholly erroneous. The Supreme Court observed that a direction for investigation could be given only if an offence is prima facie found to have been committed or the involvement of a person is prima facie established. This decision of three learned judges was followed in a subsequent ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Above all and quite apart from this aspect, we are of the view that the present case raises vital issues about the sanctity and integrity of the records maintained by this Court as a constitutional Court which is entrusted with the function of acting as a Court of record. Any attempt to interfere with the position of the Court by the tampering or destruction of the record is a matter of grave concern and in which society and the public have a vital interest. 22. In these circumstances, we entrust to the CBI the task of conducting an enquiry into the circumstances in which the records pertaining to Long Cause Suit 36 of 1969 have been destroyed and/ or have gone missing from the registry of this Court. The Director - CBI, shall ensure that the enquiry is conducted expeditiously. 23. We decline to accede to the submission of the Plaintiffs that the trial of the suit should be allowed to proceed in the meantime. The basic question as to whether the suit continues to remain on the file of the Court would need a complete and thorough enquiry by the CBI. The judicial officer who was requested to conduct an enquiry by this Court has found in the course of his report that there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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