' The above captioned appeals arise out of different orders passed by Additional District Judge Pallandri between different parties on 13-4-1994, but raise a common point of law. Hence both the appeals shall stand disposed of in the light of law point resolved by the proposed order.
2. The facts necessary for disposal of the above referred appeals are stated briefly as follows:
3. Appeal No,41 of 1994 was filed against the judgment and decree passed by Sub-Judge Kahuta/Abbaspur on 29-3-1984 before the District Judge Rawalakot. On the night entervening between 30/31 of May, 1990, the record of the case and other record of all the civil Courts including High Court at Circuit Office, Rawalakot was destroyed on account of fire. The appellants filed a fresh appeal on 25-7-1990. An application was later filed on 4-10-1990 for reconstruction of record alongwith photo copy of the judgment appealed against. The file was made over to Additional District Judge Pallandri for hearing and disposal. The learned Additional District Judge felt pleased to direct the appellants to file a fresh suit within three months from the date of his order and refused to reconstruct the record and decide the appeal on the basis of photo copies of the burnt appeal and order appealed against, hence this appeal.
4. The facts of the appeal No,42 of 1994 are that an appeal was filed against the decree and judgment of Sub-Judge Kahuta passed on 28-11-1984 before District Judge Rawalakot. During the pendency of appeal, the record was burnt, as stated above. An application alongwith photo copy of appeal was filed on 19-8-1990 for reconstruction of record. The learned Additional District Judge Pallandri refused to reconstruct the record and decide the appeal on the basis of photo copies of the burnt record. He felt pleased to direct the parties to file a fresh suit in the Court of competent jurisdiction.
5. A perusal of the record of both the appeals reveals that photo copies of burnt judgment, memorandum of appeal and plaint, were produced alongwith applications for reconstruction of record.
6. There are many other cases pending in this Court and the Court of District Judge Rawalakot record of which is burnt. The facts of all the cases are similar as for as burning of record is concerned. In some of the cases no paper of the burnt record is available before the Courts where the application for reconstruction of record is preferred. While in some cases tit bits of record either in the form of attested or unattested photo copies or hand written notes thereof are placed on record.
7. I have heard the learned counsel for the parties and have gone through the case-law cited by them at Bar. The High Court Rules on the point are silent, neither is there any provision in the Civil Procedure Code to meet such an eventuality, except the provision of section 151 C.P.C. Where a civil Court has inherent power to meet an unforseen eventuality in the ends of justice.
8. The cases pending in the Courts at the time of burning of record were either in the original jurisdiction of Courts or in their appellate jurisdiction. The causes which were pending in the original jurisdiction of the Courts can be filed afresh if they are otherwise within limitation or where. So at the time of their first institution before the burning of record.
9. For the cases which were pending in the appellate jurisdiction, the guidance can be had from the provisions of Civil Procedure Code regulating the appeals and precedents of law propounded by the superior Courts of the Sub-Continent.
10. Part VII of the Civil Procedure Code deals with the appeals from the original and appellate decrees of the subordinate Courts and Order XLI and XLII regulate their procedure, while Order XLIII regulates the procedure with respect to appellate orders.
11. The powers of a Court sitting in the appellate jurisdiction are enshrined under subsection 2 of section 107 of C.P.C., as follows: "(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein".
12. The appellate Court, according to above provision, has same powers and duties as are conferred on Court of original jurisdiction in respect of suits instituted therein. The guidance which flows from the above referred provision of law seems that the appellate Courts should proceed with the causes in the similar way as the Courts of original jurisdiction ought to, subject to provisions relating to second appeal.
13. The guidance provided by the case-law of the Sub-Continent is also in line with it. The first case which I would like to refer here is. "Marakkarutti and others v. Veern Kutty and others" (AIR 1923 Mad- 647). In the above referred case the record of the District Judge was destroyed. A reference was made to the High Court for guidance, it was held that there is inherent power in every Civil Court to reconstruct its own record and it follows therefrom that there is an inherent power in the appellate Court to reconstruct the record of the Court from which an appeal lies to it. PLD 1971 Baghdad-ul- Jadid, wherein the above referred view of law has been followed after discussing the West Pakistan High Court Rules and case-law from the Sub-Continent may, be reproduced as follows: "West Pakistan High Court Rules and Orders, Volume IV, Chapter 19-A, Clause 5 supports the view that whenever judicial record or file or correspondence is found to have been seriously damaged, tampered with, destroyed, lost or mislaid, every effort should be made to replace the missing or damaged papers from all available sources. This rule can be interpreted in two ways. Firstly, that the missing or damaged papers should be proved by primary evidence as defined in section 62 of the Evidence Act. Secondly, if the primary Evidence is not available, the papers may be replaced by secondary evidence as defined in section 63 of the Evidence Act. The rule, as to the inherent power of the Court to reconstruct its own record or record of the Courts subject to its supervisory jurisdiction, can be deduced from the observations of their Lordships of the Supreme Court in Sultan Mahmood v. Government of West Pakistan (4). This was a case relating to a service matter.
A seniority list which, according to Kaikaus, JI, made all the difference in the decision of the case, had disappeared from the record. His Lordship, while dealing with the question of reconstruction of the seniority list, observed as follows: "Rights of persons cannot be allowed to be affected by the disappearance of documents from files.
The proper course under the circumstances was that the document should have been reconstructed and its copy placed on the file. All this would in that case have been avoided".
' Though this was a case of slightly different nature, in that the said seniority list could be prepared afresh from other material available on the files, yet the fact remains that their Lordships approved the recourse to reconstruction of documents. Similar view was taken (for Civil Courts) in Tulsi Ram v. Ram Saran Das (1) and Ram Singh and others v. Pat Ram and others(2).
' The principle thus is found to have been established in our system of law and almost every other system of jurisprudence, that the reconstruction of lost record is within the inherent power of the authority of Court, concerned with that record, in original, appellate or supervisory capacity.
Therefore, I repel the extreme contention of the learned counsel for the State that reconstruction of record is, in no case, permissible by law".
14. The above principle of law is evolved after discussing the following case-law: Sander Son v. Walter (1836) 40 D R 413; Douglas v. Yallop (1759) 97 E R 532; Mclendon v. Jones (1845) Am: Dec.640; Babu Curu Dayat Singh v. Durbaree Lal Tawaree (1867) W R 18; Narsingh Narian v. Hurkhoo Singh (8 CL J 521); Raj Gir Sahaya v. Ishwardhari Singh (11 CL J 243); Kamakshamma v. Emperor (AIR 1915 Mad-1038); Sultan Mahmood v. Govt. Of West Pakistan (PLD 1964 SC-302); Tulsi Ram v. Ram Sarran Das (AIR 1925 PC 80); Ram Singh and others v. Pat Ram and others (AIR 1933 Lah.782).
15. Respectfully agreeing with the above view, it is held that the Court which was seized with the case at the time of burning of record has to reconstruct the same and decide the matter, if the record so reconstructed is sufficient for the decision thereof.
16. A difficulty would however, arise where copies of the impugned judgment are available and are also not disputed, but the record on the basis of which the judgments are delivered is not available or the record made available is not reliable and admissible; and if admissible or reliable is not complete. Guidance for it can be gathered from the review of legal provisions available in Civil Procedure Code and case law made available on the point.
17. The first appeal from the original decree is governed by section 96 of the C.P.C. An appeal under the above referred section lies from every decree passed by a Court exercising the original jurisdiction to the Court authorized to hear the appeals from the decision of such Courts. This appeal is practically a continuation of original proceedings and a stage in a suit itself. It is a cause in the superior Court for testing the soundness of the decision of subordinate Court. It is a complaint against the decision of the original Court and the first appellate Court is thus to hear the complaint on the basis of record on which the original Court decided the case, in the similar way as if it is original Court.
' What follows from it is that the first appellate Court is to sit to decide the case as if the original Court. But when the record of the Court over which it sits in appeal is totally destroyed, it will have nothing before it to test the soundness of the judgment of the trial Court. It would mean deciding a case without trial and record, which would not only mean a negation of justice, but the violation of law as well. Under such circumstances it is the duty of the Court to explore every possibility to have all material record placed on its file which would enable it to test the reasonableness, genuineness and justness of the case decided by the trial Court. But if, despite all efforts, no record is made available, proper course would be to order the parties to place before it the secondary evidence of record. The secondary evidence, of course, must satisfy the test of law relating to secondary evidence. The Court can also in such circumstances order the parties to produce the witnesses to prove the documents or the statements attributed to them in proof of secondary evidence. The appellate Court seized with the matter has as far as possible itself to construct the record and pronounce the judgment not letting the parties to be again dragged to the hazards of De Novo trial.
18. In appeals in the civil cases, the first appellate Court as said above, in almost every case, has to hear the case afresh as the original Court; while in second appeal under section 100 of C.P.C., the legality of the appellate Order is open to the extent of violation of law or procedure established by law. But where nonreading or misreading of record, mis-construing of the documents or mis- application of facts is pleaded, the same is not possible for the second appellate Court to look into and appreciate in that perspective, unless the record is before it. The power of the High Court in second appeal as for as question of facts are concerned, are regulated under section 103 of the C.P.C., which reads as follows: "103. Power of High Court to determine issues of fact. In every second appeal, the High Court, may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in subsection (1) of section 100".
19. It is out of this provision of law that the High Court in second appeal sits to determine the question of facts when the Courts below have misread, misinterpreted, misapplied or not read the facts. When such an eventuality is pleaded or brought to the notice of Court, and the Court on the perusal of the record finds that scope of section is attracted, it becomes a duty of the Court to comply with the provisions of the section, and if the evidence on record is sufficient, the Court must determine the issue having regard to evidence on record. There is no doubt that when the Courts below have formed their view after due consideration of the evidence, the High Court cannot exercise its powers under this section, however, incorrect view may be as the High Court cannot appreciate the evidence and substitute its own view for the view formed by the Courts below after the consideration of the facts and evidence in the case. But where the finding is vitiated by the illegality or irregularity such as improper admission or exclusion of evidence, the High Court must itself determine the issues of facts where the Court below refrained from discussing the evidence of witnesses or it is found that the Courts below omitted to consider certain items of evidence in determining the issue on facts, or where the judgment of the trial Court is set aside by the first appellate Court without discussing the evidence which it should have, or where misassumption is made out of the facts such as when the decision is given without considering the material evidence which the original Court made basis while deciding the case or omitted to take into consideration the facts and the evidence which was available on record, the High Court under such circumstances should and must interfere in second appeal.
20. The above powers and duties of the Court are further regulated by Order 41 and 42 of the C.P.C.
Order 41 Rule 13 which is relevant in the case here is reproduced below: "13. Appellate Court to give notice to Court whose decree appealed from (1) where the appeal is not dismissed under Rule 11, the Appellate Court shall send notice of the appeal to the Court from whose decree the appeal is preferred.
(2) Transmission of papers to Appellate Court. Where the appeal is from the decree of a Court, the records of which are not deposited in the Appellate Court, the Court receiving such notice shall send with all practicable despatch all material papers in the suit, or such papers may he specially called for by the appellate Court.
(3) Copies of exhibits in Court whose decree appealed from. Either party may apply in writing to the Court from whose decree the appeal is preferred, specifying any of the papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of, and given to the applicant".
21. Similarly Rule 24 of Order 41 C.P.C, which is also relevant for the purpose is reproduced here:-- "24. Where evidence on record is sufficient, Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds".
22. The hereinbefore referred rules apply to the second appeal as well under Order 42 of the Civil Procedure Code.
23. A reading of the above referred rules reveals that Appellate Court has to decide the appeal on the basis of record obtained from and submitted by the subordinate Court and decide the case itself if evidence is 'sufficient'. `Transmission of papers to the Appellate Court' or 'its submission to the Appellate Court' and 'sufficiency of the evidence on record' (so submitted) can only enable the Appellate Court to decide the case itself. It would thus mean that it is the record of the Courts below which can enable the Court to decide the case and that record must be sufficient. When there is nothing available on record except the pleadings of the parties and the stray paper here and there, the Appellate Court is left with no option but to order the retrial. It would in fact be a sad episode but no alternate is available to it. This course finds support from the following cases; namely: ' Bati v. State 1961 PLD Lah. 45; AIR 1943 Mad.391; and AIR 1944 Mad.414.
24. In PLD 1961 Lah. 45 which was a criminal case, the record of which was stolen and it was not possible to reconstruct the same. A retrial was ordered under section 561 (A) Cr.P.C. In AIR 1943 Mad-391, which also was a criminal appeal in the High Court of Madras, the record of the Court below was destroyed by fire. The retrial was therefore ordered as appeal could not be heard without record. Similarly in AIR 1944 Mad-414 which also was a criminal case where the record was destroyed by fire. In this case certain copies of the prosecution evidence were available but that of defence were not. The Appellate Court ordered De Novo trial. The above referred powers were exercised by the High Court under section 561 (A) of Cr.P.C. Which is almost similar in effect of section 151 of the C.P.C.
25. How much time should be allowed to a party to apply for reconstruction or fresh institution, is the next question to be answered As no precedent of law is available on this point, the rules of justice, equity and good conscience shall therefore, have to apply.
26. The cases in our State are ordinarily not adjourned to more than 35 to 45 days at a time.
Assuming that a party could not get information of burning of record well in time and could also not attend the hearing for the next following date as well, the period consumed in. The process would come to about 90 days. For abundant caution thirty more days may be added to it which a party may take for collecting the record etc. The reasonable period within which the application for the reconstruction of record ought to be made seems 120 days, unless an extended period of limitation is otherwise at the disposal of the party in which case the latter period shall prevail.
27. The upshot of the above discussion is that:
(1) The Court seized with the matter whether in its original, appellate or revisional jurisdiction at the time of destruction of record has to reconstruct the destroyed record itself;
(2) All possible efforts should be made to collect the copies of all the material record destroyed from whatever source available and decide a cause on the basis of that, keeping in view the minimum standard of evidence;
(3) Where no sufficient record is available, there is alternative but to order a retrial and whatever record of earlier proceedings are available shall be placed before the Court of original competent jurisdiction who will decide the matter afresh after affording the parties to Icad fresh evidence if necessary and admitting the copies of earlier record in evidence in accordance with and subject to the provisions of Quanun-e-Shahadat.
28. Coming to the facts of the present cases, it is clear that no record was made available before the first Appellate Court except the copies of the judgment and a photo copy of the plaint. The Appellate Court was not in a position to test the legality, genuineness and justness of the judgment of the trial Court for non-availability or insufficiency of record.
29. Applying the above state of law to the present cases, the order of retrial is, therefore, proper and legal order. The appeals, therefore, stand dismissed in the light of above without any order as to costs.