P L D 1960 (W (PLP)

B. Z. KAIKAUS, J.‑This judgment will dispose of Letters Patent Appeals Nos. 26 and 27 of 1960, which are directed against two judgments of Shabir Ahmad, J. by which he accepted appeals against the orders of the Senior Civil Judge, Lahore, refusing to restore application for reconstruction of the record. The points involved in the two appeals are common.

2. The respondent in these two appeals, i.e. the Central Exchange Bank, Lahore, filed two suits against the appellant Sheikh Mahbub Alam in the year 1952 for recovery of Rs. 8,271‑12‑9 and Rs. 22,054‑2‑9 respectively. These suits were pending in the Court of the Commercial Sub‑Judge‑at the time of Partition of India. On the 11th of October 1947 which was a day fixed for the hearing of these two suits it was found that the records were missing. The respondent applied for re construction of the records on the 27th of August 1949. The applications for reconstruction were entrusted to the Senior Civil Judge, who, on the 6th of January 1956 ordered reconstruction. Applications for revision against this order were dismissed by the High Court and the Senior Civil Judge then called upon the respondent to produce evidence on the basis of which records may be reconstructed. On the 16th of February 1957, which was a date fixed for recording of evidence, nobody appeared on behalf of the respondent, and the Court passed an‑order in Urdu, the translation of which is reproduced below:‑

"The burden of proof of the issues in dispute lay on the petitioner. The petitioner has not produced any evidence what ever. The evidence of the record does not warrant that the documents now produced are the copies of the original documents. It is difficult to reconstruct the whole record the application is dismissed." Applications for restoration of these proceedings were submitted by the respondent on the 15th of March 1957. It was alleged in the applications that the counsel for the respondent was ill and he had not informed the respondent of the date of hearing. The issue framed in each of these applications was whether sufficient cause existed for restoration. On the 26th of June 1957 the learned Senior Civil Judge dismissed both the applications holding that sufficient cause was not proved. The learned Senior Civil Judge found that the case as disclosed in the evidence did not tally with the case of the respondent in the applications. The respondent appealed against these decisions to the High Court. These appeals were heard by Shabir Ahmad, J., who was of the opinion that the learned Senior Civil Judge had taken too technical a view of the matter and that the reconstructions of the records was primarily the duty of the Court. He was at the same time not satisfied that the appreciation of the learned Senior Civil Judge of the evidence produced by the respondent was correct. He did not record a finding that there was sufficient cause but did come to the conclusion that the absence was not intentional. In view of the special nature of the proceedings for reconstruction of records which involved a duty on the part of the Court he accepted the appeals and directed the learned Senior Civil Judge to proceed with the reconstruction. Before Shabir Ahmad, J. an objection was/ taken that no appeal lay because the application for restoration was not covered by Order IX, rule 9 of the Civil Procedure Code, but the objection was overruled.

3. In these appeals learned counsel for the appellant contends (1) that no appeal lay to the High Court because the order of the learned Senior Civil Judge under appeal could not be deemed to have been passed under Order IX, rule 9 of the Code of Civil Procedure and (2) that even if an appeal lay there was no sufficient cause and none had been found by Shabir Ahmad, J.

4. After giving the matter our full consideration we are of the opinion that an appeal did not lie in the present case to the High Court. The reason given by Shabir Ahmad, J. is that dismissal of the application for 'reconstruction amounted to a dismissal of the suit. While it is true that unless the record be reconstructed it is not possible for the Court to decree the suit in favour of the plaintiff, it will be an artificial construction of the order of dismissal of the application for reconstruction to say that it amounts to an order of dismissal of suit. Such a con struction will not, as we will presently explain, be quite consistent with the situation that is created when a record is lost or destroyed. Nor will such a construction will be for the benefit of the plaintiff in all cases. If the application for reconstruction is dismissed on the ground that there is no sufficient material before the Court for reconstruction, then, if we are to regard the order as an order of dismissal of the suit, the plaintiff will have to file an appeal on a full Court‑fee, and also unless the order was set aside on appeal, the matter could not be reopened.

5. When one party alleged that a record of a Court has been lost the onus is on that party to prove that there was a pending proceeding before the Court, but once it is established, as had been established in the present case, that a record did exist, it is not only within the inherent jurisdiction of the Court but also the duty of the Court to take all steps to secure or reconstruct the record. It is not a matter which is entirely between a party and party nor are proceedings for reconstruction of the same nature as ordinary proceedings in Court by which rights of parties are determined. When a record is misplaced or stolen and the Court directs a search or makes efforts to recover the record, the orders are administrative in nature. When the Court tries to reconstruct the record as it is not possible to recover the original, the effort is still administrative in nature though the Court has to decide on evidence before it as to the construction of the record and to that extent the proceedings become judicial. When a Court is unable to reconstruct a record at one stage because of the non‑availability of sufficient evidence and therefore refuses to proceed with the suit, it cannot be said that the suit henceforth stands dismissed. All that has happened is that on account of a practical but insuperable impediment the suit cannot be tried. The suit still remains pending. Only it is not possible to proceed with its trial. Truly speaking, the Court should not pass an order dismissing the application for re construction but should pass an order to the effect that on account of the insufficiency of the material for reconstruction the suit cannot be proceeded with. Such an order will not be an order of dismissal of suit, for if the record becomes available later, the suit can be tried. A file may be lost and on evidence it may not be reconstructed and the Court may record an order refusing to proceed further on the ground that the record was not available, but the same file may afterwards be found. It could not then be said that the suit already stood dismissed by the previous order refusing to proceed and, therefore, it was not possible to act on the basis of the file that was discovered. The file may be dis covered by the Court itself without any of the parties having knowledge of its discovery. In such a case the Court will sup motu begins hearing of the suit.

6. Proceedings for reconstruction are exceptional proceedings with respect to which it will not be proper to lay down any hard and fast rule, and perhaps the only rule which would apply iti,th6 case of such .proceedings would; be that we should do that which is just and equitable and that nothing should prevent us from doing so. There can be no dismissal in default and no res judcata so far as the jurisdiction of the Court to act suo motu in the matter of reconstruction of the record is con cerned, although these legal bars may be invoked with respect to aright of a party to have the record reconstructed. There could be no doubt that the Court can act suo motu, and once this is accepted, there can be no bar to further proceedings. If a suit cannot be tried at one time because the record is not available, that does not, mean that it should not be tried if subsequently it becomes available. It is just a case where a practical difficulty arises in the disposal .of a suit. The moment the practical difficulty disappears, the suit can proceed.

7. In view of what has been said above, the order of the learned Senior Civil Judge of the 16th of February 1957, by which he dismissed the application for reconstruction , on the ground that there was no evidence before him of what the record contained is not a proper order, because the learned Senior Civil Judge failed to appreciate the nature of the proceedings that were before him. Had he realised that‑ there was some duty cast upon the Court itself to reconstruct the record, he would not have passed the order that he did pass. That there were two suits pending filed by the respondent against the appellant, one for a sum of Rs: 8,271‑12‑1 and the other for a sum of Rs. 22,054‑2‑9 had already been established. Even if the Court was able to reconstruct the plaint alone, there was, no reason why the suit should not have been proceeded with and‑to reconstruct the plaint the Court may well have asked learned counsel who had filed the suits or who had been appearing for the respondent to produce his own record. In any case, the respondent should have been called upon to state as to what was the cause of action on. which he sued and in this manner the plaint may have been reconstructed.

8. While we are not satisfied at all that the, finding of the learned ,Senior Civil Judge as to the sufficiency of the cause alleged was correct, we do not find it necessary to go to this question. Though an appeal did not lie to the High Court, the order passed by the learned Senior Civil Judge is subject to the revisional powers of the High Court and as it was passed without a proper appreciation of the proceedings with which the learned Senior Civil Judge was dealing, we set it aside in exercise of our revisional powers. At the same time, we are of the opinion that apart from our "revisional jurisdiction we can give further directions for reconstruction of the record even if we do not set aside that order. If we find that the record could not be constructed at one stage but that its reconstruction may now be possible, we can direct that further proceedings be taken for its reconstruction.

9. There is one more aspect of the matter which should be stated. Learned counsel for the appellant has contended, and successfully, that an application under Order IX, rule 9 did not lie because it lies only if a suit is dismissed for default. But if Order IX, rule 9 did not apply, there is no bar to the filing of afresh application for reconstruction. Order IX, rule 9 applies only to suits and, therefore, if a proceeding to which it does not apply is dismissed in default, Order IX, rule 9 cannot be resorted to foe putting an application for restoration. At the same time Order IX, rule 9 would not operate as a bar to the filing of the fresh application and no other bar exists. Under the circum stances, the application for restoration could very well be treated as a fresh application for reconstruction. The learned Senior Civil Judge failed to take note of this aspect of the matter and for this reason his second order, i.e. the order dated the 26th of June 1958 is to be set aside. It does not matter that in form the application 'was one for restoration of the previous application, for its object was that the record be reconstructed. It has been contended that the order of the 16th of February 1957 was an order on the merits and, therefore, a second application for re construction should not lie, but we are of the opinion that it would be quite proper to regard the order as one of dismissal for default. In fact, if we are to rely upon cases relating to orders passed in suits, the order of the 16th of February 1957 can only be regarded as an order of dismissal in default. In Madan Gopal v. Budhu (A I R 1932 Lah. 477) it was held by a learned Judge of the Lahore High Court that if a plaintiff does not appear and there is no material on the record on which a decision on merits can be given, then the dismissal should be a dismissal for default. The learned Judge was interpreting Order XVII, rule 2 which applies to cases of non appearance of the parties on a date other than the first hearing. According to Order XVII, rule 2, if a party does not appear, then either the Court may proceed in the manner provided for in Order IX, or it may make such order as it thinks fit. The learned Judge came to the conclusion that the words "as it thinks fit" did not cover a decision on merits. We need not decide the question as to whether a decision on the merits would be within the words "makes such order as it thinks fit", for we are quite clear that if there was no material on the record on which the matter could be decided on the merits, the only proper order for the Court to pass was one of dismissal in default. It was held by a Full Bench of the Bombay High Court in Basalingoppa Kushappa Kumbhar v. Shulramappa Irappa Shiranagi (A I R 1943 Bom. 321), that when there are no materials on the record, the order passed should be one of dismissal in default. With that judgment we are in respectful agreement, and also we do not think it proper that the plaintiff should be deprived of his right to apply for restoration by passing art order on the merits, though no proper material for decision on the merits exists.

10. Technically we accept the appeal and set aside the order of the learned Single Judge because he purported to act only in the exercise of his appellate jurisdiction, but in the exercise of our revisional jurisdiction we set aside the orders passed by the learned Senior Civil Judge on the i6th of February 1937 and 26th of June 1958 and we direct that the record be reconstructed so that this appeal, although it technically succeeds, substantially fails, for the order of the learned Single Judge directing re construction is upheld. Parties will bear their own costs throughout. A. H. Order accordingly.