First appeal dismissed where appellant failed to deposit paper-book costs and trial evidence was unavailable.

The deceased Banwarilal Mangli instituted Civil Suit No. 652 of 1989 before the City Civil Court, Ahmedabad, seeking declaration and permanent injunction concerning Room No. 110 in Harilal Bhogilal’s Chawl. He claimed tenancy under the Ahmedabad Municipal Corporation and alleged that Mohanagar Cooperative Housing Society Ltd. threatened to dispossess him, demolish the premises, and obstruct his right of way.

During the suit, Banwarilal died, and his brother Laluram Mangliprasad was permitted to be substituted as plaintiff.

The appellant Society contested the suit, asserting that it had acquired and possessed the relevant land and that the plaintiff had encroached upon its property. It also raised objections concerning jurisdiction, statutory notice, and the plaintiff’s alleged lack of tenancy and easementary rights.

By judgment and decree dated 5 October 2000, the City Civil Court partly decreed the suit and permanently restrained the Society from dispossessing the plaintiff, demolishing the premises, or obstructing the alleged right of way.

The Society preferred the present appeal under Section 96 of the Code of Civil Procedure, 1908.

Although the appeal was admitted on 12 July 2004, the appellant failed to deposit the estimated charges for preparation of the paper-book. The writ was returned in 2007, and most of the trial-court record, including the evidence, was subsequently destroyed. The parties were unable to supply copies necessary to reconstruct the evidence.

Whether the appeal could be effectively decided on merits when the trial-court evidence and substantial portions of the record had been destroyed and the parties had failed to reconstruct the record?

Whether the appellant’s failure to deposit the prescribed paper-book costs justified dismissal of the appeal for want of prosecution under Rule 429 of the Civil Manual?

Whether the trial court’s decree was liable to be interfered with on the appellant’s objections concerning substitution of the plaintiff, tenancy, possession, jurisdiction, and easementary right?

The Court did not adjudicate these substantive issues because the appeal was dismissed on the procedural ground of non-prosecution and absence of the record.

The Court proceeded under Section 96 of the Code of Civil Procedure, 1908, which provides for a first appeal from an original decree.

It applied Rule 429 of the Civil Manual, under which an appellant must deposit the estimated cost of preparing the paper-book after receipt of the writ; failure to do so may result in non-preparation of the record and dismissal of the appeal for want of prosecution, subject to the prescribed extension of time.

The Court also recognised that an appellate court cannot properly determine the merits of a first appeal when the material evidence and necessary record are unavailable and cannot be reconstructed.

The Court noted that the Society’s appeal had been admitted, but the appellant failed to deposit the amount required for preparation of the paper-book.

The record further showed that the appellant could not be located when the notice for payment was sought to be served, and that the evidence in the original suit had been destroyed pursuant to the applicable record-retention rules.

Since neither party could provide the evidence required to reconstruct the record, the Court held that it had no practical basis to examine the appellant’s challenges concerning tenancy, possession, substitution, jurisdiction, or easementary rights.

Applying Rule 429 and the principle that an appeal cannot be decided fairly without the relevant record, the Court dismissed the appeal for want of prosecution rather than determining the substantive grounds on merits.

The Court therefore did not decide the appellant’s substantive challenges to the trial-court decree.

The judgment and decree dated 5 October 2000 consequently remained undisturbed.

The connected Civil Application for stay was disposed of as no longer surviving, and the available record was directed to be returned to the City Civil Court.