20/10/2025
RECONSTRUCTION OF JUDICIAL RECORD
QUERIES:
What is meant by the reconstruction of judicial record, from where does the Court derive its power to order it, and who is responsible for carrying it out?
At what stage may the reconstruction of record be undertaken, and under what circumstances, if any, may the Court order a retrial as an alternative to reconstruction?
What is the prescribed procedure for the reconstruction of record, and what contents are admissible or sufficient in establishing the reconstructing the lost or destroyed record?
Is there any period of limitation within which an application for reconstruction of record must be filed?
Is the reconstruction of the record of the decree a prerequisite for proceeding with its ex*****on?
CONCLUSIONS:
The conclusions, in seriatim, are as follows:
The reconstruction of judicial record entails that where the record of the Court, wholly or in part, is misplaced, destroyed, lost, or stolen, the Civil Court is empowered to restore or replace the missing record. Although there is no specific statutory provision exclusively governing the reconstruction of record, the authority to do so is derived from the inherent powers of the Court under Section 151 of the Code of Civil Procedure, 1908 (the “CPC”), read with Volume IV, Chapter 16, Part D (Custody of Judicial Records), Rule 4, and Volume IV, Chapter 19, Part A (General Directions), Rule 5 of the Lahore High Court Rules and Orders (the “LHC Rules and Orders”). These provisions require that every possible effort be made by the Court to replace the missing or damaged papers from all available sources and immediate steps be taken for their recovery or reconstruction.
The primary course available to the Court in the event of loss, misplacement, or destruction of judicial record is its reconstruction, which may be undertaken at any stage of the proceedings. However, the Court is empowered to allow fresh institution of the suit where the case had just been instituted and falls within the period of limitation. An alternative remedy for the reconstruction is a retrial which is deemed as an exceptional remedy, to be exercised only where reconstruction is not feasible and where sufficient record is not available. The underlying principle remains that the accidental loss of record must not be allowed to defeat the ends of justice or prejudice the rights of any party.
The reconstruction of record is a procedural mechanism aimed at preserving the integrity of judicial proceedings and ensuring that the accidental loss or destruction of record does not obstruct the course of justice. While certified copies are to be given primary preference, the Court is empowered to collect material from all available sources, including parties and other departments, to complete the record. Where disputes arise regarding the authenticity or admissibility of such material, the Court must resolve them in accordance with the law of evidence. Secondary evidence may be relied upon where appropriate, provided it meets the legal threshold under Section 74 of the Qanun-e-Shahadat Order, 1984 (the “QSO”). Ultimately, the Court must ensure that the reconstruction process safeguards both the fairness of the proceedings and the rights of the parties.
There is no specific period of limitation prescribed for filing an application for the reconstruction of record. Consequently, Article 181 of the Limitation Act, 1908 applies, which provides a limitation period of three years from the date when the right to apply accrues. In such cases, the right is deemed to accrue from the date of knowledge of the destruction, loss, or misplacement of the record.
The loss or destruction of the original decree does not bar the ex*****on since a certified copy, filed with the ex*****on petition, is sufficient to proceed. Under Section 74 of the QSO, the decree-holder may rely on secondary evidence, including certified copies or oral testimony, to prove the contents of the decree. However, if the Executing Court’s own record is lost or destroyed after the filing of the petition, reconstruction or other lawful measures will be necessary to continue the proceedings.
DISCUSSIONS:
The discussions, in seriatim, are as follows:
The reconstruction of judicial record is an inherent duty of the Court. Under Volume IV, Chapter 16, Part D (Custody of Judicial Records), Rule 1 of the LHC Rules and Orders, the administrative staff of the Court is designated as the custodian of judicial records, under the supervision of the Presiding Judge, and, consequently, Rule 4 of the same, imposes an obligation upon the Presiding Officer to take immediate steps for the recovery or reconstruction of any record that is found to be missing. Likewise, Volume IV, Chapter 19, Part A (General Directions) Rule 5, provides that whenever any judicial record, case file, or correspondence is discovered to have been seriously damaged, tampered with, destroyed, lost, or misplaced, a report must be submitted to the High Court through the District and Sessions Judge, and every effort must be made to replace the missing or damaged documents from all available sources. The principle underlying reconstruction of record has deep common law roots. In McLendon v. Jones (42 Am. Dec. 640), the Court of Alabama followed the English case Douglass v. Yallop (2 Barrows 722; 97 E.R. 532), observing that “Cases must frequently have occurred in which, by accident, the records of Courts of Justice have been destroyed or lost, and it would seem strange if the Common Law had provided no adequate means by which the injuries growing out of such accident could be averted or remedied,” and then proceeded to discuss methods by which such remedies may be provided. These decisions became landmark authorities in the jurisprudence of the subcontinent on the subject of record reconstruction. Similarly, in Jampala Malayadri Naidu v. Meruva Subrahmanyam, the Allahabad High Court reiterated that every court of law possesses the inherent power to reconstruct its record, which is a universally recognized legal principle. This makes it incumbent upon the Court which was seized with the case at the time of burning of record, to reconstruct the same and decide the matter, after sufficient record has been reconstructed for a decision. It falls squarely within the inherent power and duty of the Court to reconstruct its record, either on its own or upon the application of either party.
The Court may allow the reconstruction of record at any stage of the proceedings, whether in its original jurisdiction or appellate powers. Although the Court has the power to allow the institution of the case afresh, this is limited to situations where the suit had just been instituted and is still within the period of limitation. However, where sufficient record is not available, and the case is not on the initial stage, the Court also has the option to order a retrial of the suit. However, this alternative is strictly confined to cases where reconstruction is not possible. In such cases, whatever record is available from the earlier proceedings shall be placed before the Court of original competent jurisdiction, which will then decide the matter afresh after affording the parties an opportunity to lead fresh evidence, if necessary, and admitting the earlier record in evidence in accordance with the provisions of the Qanun-e-Shahadat Order, 1984. However, preference shall always be given to reconstruction of the record at any stage, especially at later stages, to avoid retrials. Retrials shall only be ordered rarely and as a last resort.
With regards to the reconstruction of the record, the Court shall direct all parties to produce any and all available material relevant for reconstruction. The Court is also empowered to call for record from other departments or courts to complete its own file. Certified copies of the record shall be given the highest preference. The Court must make every effort to collect copies of the material that was destroyed from all available sources and proceed to decide the matter on that basis, keeping in view the minimum evidentiary threshold required by law. However, several difficulties may arise in such situations. One such issue is where the record produced by one party is disputed or refuted by the other. In such a case, the Court may either allow evidence to be led on the point or disregard the disputed record altogether. Another difficulty may arise in appellate matters where copies of the impugned judgment are available and undisputed, but the underlying record on which the judgment was based is either unavailable, inadmissible or does not meet the criteria of evidence available as per the CPC or the QSO. In such a scenario, the Court may decide the matter on the strength of the available material or permit the production of secondary evidence in accordance with law. However, any such secondary evidence must meet the evidentiary threshold prescribed under Section 74 of the Qanun-e-Shahadat Order, 1984.
There is no specific period of limitation prescribed for filing an application for the reconstruction of judicial record. This legal position was authoritatively settled in Zanib Jan and others v. Zubaida Begum and others (1996 CLC 1545), wherein the Court held that in the absence of an express provision prescribing a period of limitation for such applications, the matter shall be governed by Article 181 of the Limitation Act, 1908. Article 181 provides a limitation period of three years from the date on which the right to apply accrues. Accordingly, the residuary clause shall apply upon the period of limitation for filing an application for reconstruction of record, which is three (3) years from the date of destruction, burning, loss, or misplacement of the record, or from the date the Applicant first acquired knowledge thereof.
It is respectfully submitted that where ex*****on proceedings have already been initiated and are pending, the loss, misplacement, damage, burning, or tampering of the original decree does not, in itself, impede the executability of the decree. This is because a certified copy of the decree is annexed with the ex*****on petition at the time of filing, as required under Order XXI Rule 11(3) of the Code of Civil Procedure, 1908. Even in situations where the original decree is not available, the decree-holder is not rendered remediless. In such circumstances, Section 74 of the Qanun-e-Shahadat Order, 1984, permits the use of secondary evidence upon loss or destruction of the original, which may include, inter alia, certified copies or oral testimony of witnesses conversant with the contents of the decree. Accordingly, the decree-holder may establish the contents of the decree through admissible secondary evidence, and the ex*****on proceedings may lawfully continue without necessitating any prior application for reconstruction of the original decree. It is further clarified that this principle primarily pertains to the record of the Court that passed the decree, and not to the record of the Executing Court itself. Where the record of the Executing Court, after the institution of the ex*****on petition, is subsequently burnt, lost, destroyed or misplaced, the same would warrant reconstruction or recourse to alternative lawful means, as already discussed above, to enable the continuation of the ex*****on proceedings.
LEGAL RELIANCE:
QUERY NO.1, 2 AND 3:
LAHORE HIGH COURT RULES AND ORDERS:
VOLUME IV CHAPTER 16 PART D – CUSTODY OF JUDICIAL RECORDS:
RULE 1:
The following orders as to the assumption and the relinquishment of charge of judicial records shall apply to holders of the under mentioned posts:
Courts of District and Sessions Judges, Additional District and Sessions Judges
Ahlmads
Record keepers
Courts of Senior Subordinate Judges, Administrative Subordinate Judges, and other Subordinate Judges.
Ahlmads
Ex*****on Moharrirs
Guardian Moharrirs
Readers to Administrative Subordinate Judges
Small Causes Courts
Ahlmads
Naib Sheriffs in charge of ex*****on work
Insolvency Clerks
RULE 4:
If any document of part of the record is subsequently found to be missing, the Presiding Officer of the Court shall immediately take action for its recovery or reconstruction. He shall also fix responsibility on the custodian if the document was on the index, or on the official whom the custodian relieved, if it was not on the index.
VOLUME IV CHAPTER 19 PART A – LOSS OR DAMAGE:
RULE 5: A report should be made to the High Court through the District and Sessions Judge whenever any 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 missing or damaged papers from all available sources.
THE CIVIL PROCEDURE CODE, 1908:
SECTION 151: Saving of inherent powers of Court: Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to be exercised after recording reasons to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
SECTION 30: Power to order discovery and the like: Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party:
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence ;
(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.
ORDER XIII: PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS:
RULE 10: Court may send for papers from its own records or from other Courts:
(1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.
(2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any
document which under the law of evidence would be inadmissible in the suit.
QANUN E SHAHADAT ORDER, 1984:
SECTION 73: Primary evidence: “Primary evidence” means the document itself produced for the inspection of the Court.
SECTION 74: Secondary evidence: “Secondary evidence means and includes:
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical process which is themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
PAKISTANI CASE LAWS:
Gul Begum and others versus Rehmat Jan and others (1995 CLC 1643
[Azad J&K]): (Since, there were only photocopies available, hence, the case was referred to retrial)
Relevant paras: Paras 14, 15, 16, 17 and 27
“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 4he 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 and Ram Singh and others v. Pat Ram and others.
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".
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. … 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.
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 lead 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.”
Muhammad Siddique versus the State (2008 PCr.LJ 1084 [Shariat Court (AJ&K)]): (explains application procedure)
Relevant paras: Paras 2 and 9
“2. The facts briefly stated are that the accused-petitioners and respondents Nos.3 to 5 are facing trial in a case registered against them under sections 302, 324, 147/148/149 and 337, A.P.C. before the trial Court. The case was at the stage of final arguments and in the meantime due to disaster of 8th October's earthquake the record pertaining to whole case was destroyed. On presentation of application for reconstruction of record, the trial Court after hearing the parties vide its order, dated 26-5-2007 started reconstruction after summoning opposite party. However, during the process, it was noticed, that permission for the same is required by the Shariat Court which was granted on 16-4-2007. It is contended by the learned counsel that reconstruction proceedings may be started afresh and that proceedings already initiated may be set aside. The trial Court rejected the prayer through impugned order, dated 26-5-2007. It is the aforesaid order which has been assailed through the instant revision petition.
9. So far as the admissibility of the documents annexed with the file for reconstruction of the record is concerned, suffices it to say that as the matter is pending for adjudication before the trial Court, therefore, it is the trial Court, which is the proper forum to decide the matter in the light of special circumstances of the case.”
INDIAN CASE LAWS:
Jampala Malayadri Naidu v. Meruva Subrahmanyam: (also quotes other cases relevant to reconstruction):
Relevant paras: 7, 8, 9, 10
“The argument raised in this regard was that as there is no specific power in Code of Civil Procedure for reconstruction of a destroyed record, the Court is not empowered in exercise of its inherent power to get it reconstructed. It is undeniable that the Court cannot exercise its inherent power which is otherwise prohibited by any specific provision or impliedly barred. In the exercise of its inherent power, the Court should be careful to see that its decision is based on sound general principles and is not in conflict with them or the intention of the Legislature.”
It is held that when a document is lost from the custody of a Court, since act of Court shall not prejudice no one, by exercise of its inherent power, reconstruction of the said document is BSB, J permitted. This decision dealt with reconstruction of document lost from the custody of court (custodia legis) and the effect of reconstruction on the nature of the document. Such document may include documents of pleadings or documents used or intended to be used as evidence or any other kind.
This decision further deals with document lost from the custody of the party, which is intended to be produced in evidence, since it is observed that such document can be filed as secondary evidence. It is further held about impounding of such document. Thus, the point in respect of reconstruction of any other kind of document such as pleadings etc lost from the custody of a party has not fallen for consideration. There is no restriction under law for permitting reconstruction of such document in case of its loss. In other words, it cannot be said that no permission can be given for reconstruction of the record lost from the custody other than that of Court. Inherent powers can be exercised whenever required for the ends of justice or to prevent abuse of process of law. In other words, the exercise of this power cannot be circumscribed by any or some specified or defined parameters. Sole consideration is to meet the ends of justice or to prevent abuse of process of law.
Just because inherent power is exercised to reconstruct the document lost in custodia legis, as act of court shall not prejudice BSB, J no one, it cannot be construed to understand that it can be exercised only for that purpose. Inherent power is exercised whenever it is required for ends of justice. As such, this authority/power/jurisdiction is to be exercised to remedy the loss being caused. It has to be exercised in other circumstances also to meet ends of justice. In each case, facts and circumstances are to be examined to see whether permission can be granted.”
S.S.Neelamegam vs R. Jeyapal – Madras High Court (2011 (5) CTC 537):
Relevant Paras: 13, 15 and 19:
“13. The learned counsel for the respondents/defendants cites a decision of this Court in Dr.K.SRINIVASAN (PLAINTIFF) Vs. P.SRINIVASAN (DEFENDANT) reported in (1989) 1 LAW WEEKLY - 195, wherein at page Nos.195 and 196, it is held as follows:- "The inherent power of the Court to direct reconstruction of the records in certain cases has been recognised in decided cases. The principle on which the decisions are based is that no man should suffer by an act of Court. The latin maxim "Actus Curiae Neminum Non-Gravabit" is the foundation for the ratio of the above decisions. The entire case law on the subject of reconstruction of records has been clearly traced in 1983 Allahabad 124 by the Division Bench. The prayer for reconstruction in this case cannot be granted. The term 'reconstruction' by itself shows that an occasion for reconstruction can arise only if the records are lost by the Court while they are in the custody of the Court. There is no question of reconstruction when the papers have been returned to the advocate and when they are in the custody of the party or his counsel. The inherent power of the Court should not be exercised to enable a party to escape the consequences of his own negligence. If the applicant is permitted to represent the papers without the requisite Court-fee on the plaint, it will tantamount to conferring a premium upon his negligence. Such an order will also open the flood-gates of perjury and litigants will start filing applications with different sorts of versions to avoid payment of appropriate Court fee. The Court cannot in each case be embarking on an enquiry as to the truth or otherwise of the versions put forward by the litigants. The exercise of inherent power should be passed on sound judicial discretion and it should not result in ad hoc or arbitrary orders giving rise to undesirable consequences."
15. It is to be noted that for the mistake of either the Court or the Court Staff, no litigant should suffer or be penalised (when there is no fault attributed to him). Admittedly, every Court of Law has inherent powers to reconstruct its record in certain cases, which is universally a recognised one. The exercise of inherent powers must be employed by a Court of Law on sound judicial discretion. When technical considerations and deliverance of substantial justice are pitted against each other, then cause of deliverance of substantial justice is to be preferred overwriting technicalities. In short, the Court of Law must adopt a pragmatic, meaningful, practical and rational commonsense approach while dealing with the application to reconstruct the Restoration Application filed by a litigant and that too where there is an entry in 19th Register with a specific principle for vouchsafing the filing of the same.
19. As far as the present case is concerned, this Court is fervently of the considered view that issue of reconstruction of Restoration Application will arise only if the same is misplaced or lost or untraceable by the concerned Court, while the said application is in the custody of the Court. There cannot be any reconstruction of Restoration Application when the same has returned either to the party or to the Counsel and that too when the Reconstruction Application/paper is in the custody of the learned Advocate or the party, as the case may be.”
Marakkarutti And Ors. vs T.P.M. Veeran Kutty and others – Madras HC (AIR 1923 MADRAS 647):
Relevant paras: Paras 2 and 3
“The respondent only has been represented before us, but his vakil, Mr. K.P. Ramakrishna Ayyar, has assisted the Court very much by placing before us fully everything that he could find whether it was for him or against him in the matter. 1 think that one can safely start with the proposition that there is inherent power in every Court to reconstruct its own records, and I think it follows that there is inherent power in the Appellate Court to reconstruct the records of the Court from which an appeal lies to it. This power has been recognised in England and in America, which follows the English Common Law, and also in this Country. The English case that is quoted on the subject is Douglass v. Yallop 2 Barrows 722: 97 E.R. 532. The matter was more fully discussed in an American case, McLendon v. Jones 42 Am. Dec. 640, a judgment of the Court of Alabama which quoted and followed Douglass v. Yallop 2 Barrows 722: 97 E.R. 532 and a case which had been decided by the Supreme Court of New York; and that case points out, "Cases must frequently have occurred in which, by accident, the records of Courts of Justice have been destroyed or lost, and it would seem strange if the Common Law had provided no adequate means by which the injuries growing out of such accident could be averted or remedied, " and then goes on to discuss the methods by which the remedy should be provided. I call attention, to it because it states the matter more fully than the other reported cases. In this country the matter came before the Calcutta High Court in 1867 in Babu Guru Dayal Singh v. Durbaree Lal Tewaree (1867) 7 W.R. 18, a judgment of Sir Barnes Peacock, C.J. and Jackson, J. In that case records had been lost in transit from the first Court to the second; the second Court acted on some documents purporting to be office copies which the High Court held were not regularly proved or admitted. The Court held that there were two alternative courses open, to direct the lower appellate Court to receive such secondary evidence of the contents of original records as may be forthcoming, or to order an entirely new trial. It decided against the second alternative for very cogent reasons with which we agree. It directed the lower appellate Court to receive secondary evidence of the contents of the whole record, but, if not able thus to replace the record, that the parties should be at liberty to adduce further evidence and, on the record so reconstructed and supplemented, give judgment. While agreeing in the main with this, we think it desirable to state our own view of the matter.
The first thing to observe is that the appellant has, in order to get his appeal heard at all, to satisfy the Court what the record is of the case in which he has failed. He can come to the Court and say that he has tried to get the record which has been destroyed. He can then ask the Court to be allowed to reconstruct that record. It is then for the Court, if so minded--I say that because it is conceivable that the Court may say, on the material at hand before it or on the appellant's application that no amount of reconstructing of the record would assist the appellant in his appeal to permit the appellant to get the record reconstructed. The Court has not got to have the case re-heard. The respondent is entitled to the benefit of having the judgmnt which he has got in his favour on the original hearing. It may be that, in reconstructing the record, the Court will have to go very near to rehearing, but the Court will always have to apply its mind to ascertain not what the rights of the parties were, but what the destroyed record of the suit was and, on that record, when reconstructed, it will have to act on the ordinary principles on which it would have acted if the original record had been before it. It will be for the Judge to whom the application is made to decide how the reconstruction of the record is to be attempted affidavits, counter-affidavits, the hearing of witnesses and the admission of copies are all methods which he can in a proper case allow. He will, of course, get the best evidence available. It; will be open to him in a proper case to call for a finding of the District Munsif on what the record was. It may well be in some cases that it would be more convenient that the Court that heard the matter and made the record should do the reconstructing rather than the appellate Court and, with that in view, the appellate Court may well in a proper case send the case to the District Munsif for the recording of evidence and a finding as to what the record consisted of, which finding, when given, it will be open to the appellate Court to accept or reject in the ordinary way. It is worth observing, that in the appellate Court, probably the best evidence of what took place in the Court below will be found in the judgment, if that has been preserved, of the District Munsif or the Subordinate Judge, as the case may be, who heard the case and recorded findings.”
QUERY NO. 4:
REVELANT STATUTE:
Limitation Act, 1908:
Description of Application
Period of Limitation
Time from which period begins to run
181.– Applications for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908
Three Years
When the right to apply accrues
Relevant Case Laws:
Zanib Jan and others versus Zubaida Begum and others (1996 CLC 1545
(Supreme Court [Azad J&K])):
Relevant Para: “From the survey of the case-law cited above it becomes clear like crystal that the application for reconstruction of record whether the same was under the Code of Civil Procedure or outside the ambit of Civil Procedure Code in both the eventualities the relevant Article of Limitation Act applicable would be Article 181 which as said earlier provides a period of three years. In our view the High Court had no jurisdictional competence to fix a period of limitation of 120 days for filing the applications for reconstruction of record based on mere assumptions. The learned counsel for the respondents could not g meet the arguments raised by the learned counsel for the appellants. In this view of the matter we have reached the conclusion that the Article of Limitation Act applicable for filing the application for reconstruction of record would be Article 181. The application filed by the appellant in the High Court was well within time.”
QUERY NO.5:
REVELANT CPC PROVISION:
ORDER XXI RULE 11:
(3) The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.
RELEVANT CASE LAW:
Raj Gir Sahay vs Ishwardhari Singh and others (5 IND.CAS.660):
Relevant paras: Para 5 and 6:
“It was not necessary for the decree-holders to file a copy of the original decree with the application for ex*****on. This was laid down in the case of Modhoo Dossia v. Nobin Chunder Roy 16 W.R. 25 and the same view has been subsequently adopted by Mr. Justice O'Kinealy in the case of Rajkumar Banerji v. Rajlakhi Dabi 12 C. 441 and by the learned Judges of the Bombay High Court in the case of Raja Ram v. Banaji Mairal 23 B. 311. The Code is perfectly clear on this point. Section 235, Civil Procedure Code, does not require that a copy of the decree is to be attached to the application for ex*****on. Under Section 224, no doubt, a copy of the decree has to be forwarded if the decree is sought to be executed in a Court other than the one which made the decree. When, however, the decree is sought to be executed in the Court which made it, it is not necessary for the applicant to supply a copy of the decree. I he original decree which is in the record-room of the Court is sent for and ex*****on is allowed to proceed on this basis. If the original decree is not in existence, it would be open to the party applying for ex*****on to give secondary evidence of its contents under Section 65 of the Evidence Act, which provides that secondary evidence may be given of the contents of the document when the original has been destroyed or lost. Section 63 then provides that such secondary evidence may consist of oral accounts of the contents of a document given by some parson who has himself seen it. If, therefore, in the present case, the decree has been destroyed and it was not possible for the decree-holders either to obtain a certified copy of the decree or to produce the original, it was nevertheless open to them to present an application for ex*****on, and it would have been open to them to prove the contents of the decree by oral evidence of the description mentioned in Section 63 of the Evidence Act. It was wholly unnecessary for them to apply for re-construction of the decree.
The only other point which requires consideration is whether the application for reconstruction of the decree may legitimately be treated as an application to the proper Court to take a step-in-aid of ex*****on of the decree. Reliance has been placed on behalf of the respondents upon the case of Kunhi v. Seshagiri 5 M. 141 in which it was ruled that an application by a judgment-creditor, to the Court which passed, the decree for a certificate that a copy of the revenue register of the land is necessary so as to enable him to obtain such copy from the Collector and thereupon, to attach the land, is a step-in-aid of ex*****on. The case relied upon, however, is clearly distinguishable because as pointed out in Gopilandhu v. Domburu 11 M. 336 the principle of that decision is that the step taken, in order that it may be a step-in-aid of ex*****on, must be necessary for purposes of ex*****on. This test was applied in the cases of Rangachariar v. Balaramasami Chetty 21 M. 400 and Rajaram v. Banaji Mairal 23 B. 311. In the view we take, namely, that if was open, to the decree-holders to present an application for ex*****on without a copy of the decree, the application to re-construct the decree was needless, and cannot properly be regarded as an application to take a step-in-aid of ex*****on. If it had been obligatory upon the decree-holders to produce a copy of the decree along with the application for ex*****on, the position, perhaps, might have been different, although as is clear from the cases of Sadashiva Raghunath v. Ramchandra Chintaman 5 Bom. L.R. 394 and Pachiappa Achari v. Poojali Seenan 28 M. 557 even in that contingency there might be room for divergence of judicial opinion.”
BARRISTER KHURRAM RAZA
ADVOCATE SUPREME COURT
BARRISTER AMBER NIAZ
ADVOCATE HIGH COURT
MUHAMMAD IKRAM
ADVOCATE HIGH COURT
RANA MOAZZAM MUSHTAQ
ADVOCATE HIGH COURT
