What Procedure is to be Adopted in Case of Missing Court Record?

In a writ petition filed before the Kerala High Court, the court delivered a judgment on Monday stating the importance of proper maintenance of records and processes to recover missing case records.

Background:

The petitioner in the case, V. Safarullah, was a co-owner of a property. This property was originally under the ownership of Andrew Rodger Lambie. The prior owner, Lambie, had an unregistered will made in 1961, giving the property to his wife, Gracy Josephine Lambie, who was now the respondent in the case.

On the death of her husband in 1964, she filed a petition before the District Court seeking the letters of administration with the Will. This petition was allowed. Gracy Lambie then sold the property to the predecessors of Safarullah in interest. Thus, in 1971 the property was assigned in the name of the petitioner’s mother and relatives.

Now the property had vested with the petitioner and his siblings who wanted to construct a building in the property. For the same, they approached a bank for financial assistance but the bank had asked for a certified copy of the Will. 

Thus, the petitioner filed documents relating to the previous property proceedings, application for copy of Will and others to obtain the said certified copy. However, the Record Clerk returned them saying that the Will could not be traced.

The petition was thus filed before the Kerala HC seeking to direct the District Court to issue a certified copy of the Will. 

What Procedure is to be Adopted in Case of Missing Court Record?

When the matter came up for consideration, the HC on 17th November called for a report from the District Court. The learned District Judge informed the Court that the Record Clerk had searched for the Will, and endorsed that the record was kept in a sealed cover with the Sheristadar. 

Even after a thorough search, the Will could not be found. The Record Clerk thus sent back all the documents as mentioned above. It further said that the Court (district) was not in a position to issue the said certified copy, as it was not available in the case records and declared it to be lost in ‘custodia legis’, meaning when it was in the custody of law.

The HC in 2019 had issued a memorandum giving exhaustive directions to all subordinate courts of the process in case of missing records. According to it, the duty of the district judge was to do the following:

  1. Promptly order a proper search to be conducted, then
  2. Report the matter to the High Court, and as a last resort
  3. Order a reconstruction of records.

This memorandum was issued in light of increasing incidences of missing records and to ensure that the courts maintain future records properly. The memorandum clearly stated that in cases of missing records, it becomes difficult for the people to get speady justice and thus may lead to its miscarriage.

Decision of the Court:

Keeping in view the explicitly stated memorandum, the Hon’ble Judge C.S Dias delivered the following judgement:

The act of the record clerk and the subordinate court was against the directions and proceedings of the Memorandum. It was a step erroneous and unsustainable in law and was set aside. The petition was allowed and an order was issued to the District Court to take necessary steps as per in the memorandum and pass appropriate orders in accordance to the law.

Story by Sai Kulkarni-Intern

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