DAVE, J. - (1.) A short question, referred to this Full Bench by Hon'ble Kasliwal J. is "whether the letter No. Gen/4 P.I. dated September 30, 1968 and order No. 3/S.O.dated March 22, 1986 and circular letter No. 9/P.I. dated March 22, 1986 are in consonance with rule 170 of the General Rules (Civil) 1952 and Rules 160, 163 and 164 of the Rajasthan High Court Rules."
(2.) The aforesaid question was framed by one Kasliwal, J. one of us while he was hearing Civil Second appeal No. 356 of 1976 on April 11, 1986. He decided the main appeal by a separate judgement, and raised the aforesaid question by a separate order. This Civil Second appeal had earlier been listed for hearing before Hon'ble Mehta, J. on February 25, 1986. He passed an order, whereby, he observed, "Rule 160 of the Rajasthan High Court Rules, provides that the record of the case shall be sent for when an appeal is admitted. Rule 163 provided that when an order has been made directing notice of an appeal, the office shall take immediate steps to cause notice thereof to be served on such persons as are indicated in Rule 171. The office shall, if not directed otherwise, also send a requisition to such Court asking it to transmit within ten days, all material papers of the case". Mehta J. issued a notice to the Addl. Registrar to show cause whether the High Court Rules are strictly followed in the High Court itself or not, and if not, he should also state the reasons. The Addl. Registrar submitted his reply wherein he submitted that compliances are made according to the High Court Rules and the same are followed in day to day work. He also submitted that to avoid difficulties and obstacles standing orders are issued from time to time by the Registrar and those standing orders are also respected by the office. If some objection is raised and it is felt that any standing order is contrary to the aim and spirit of any of the High Court Rules, the same is placed before the authorities concerned for its modification or review. He stated that due to the introduction of 'due course' system, an alternative arrangement was made by way of circular dated September 30, 1968, wherein a direction was given to all the District Judges that as soon as intimation of admission of appeal or revision is received, the clerk incharge of the records of that Court as well as the Courts subordinate thereto, will make a note of the same in the register and also on the record itself in red ink to the effect that an appeal/revision has been filed in the High Court and record is to be remitted on receiving intimation therefrom. It was also mentioned in the circular that instructions in this respect should also be given to the record keepers not to weed out any part of the record of such cases till the disposal of the appeal or revision even though the time limit for preserving such part of the record has expired. He also placed on record the intimation received the instant case from the District Judge, Alwar which also shows that a note was found on letter dated December 13, 1976 showing that the record is not to be remitted at present, but despite that it was destroyed. The order dated February 25, 1986, was also brought to the notice of the Hon'ble Chief Justice by the Addl. Registrar on March 4, 1986 and Hon'ble the Chief Justice directed that a circular should be issued to all the District Judges, Addl. District Judges and all Judicial Officers that record of both the lower Courts shall invariably be preserved in full until hearing of the second appeal in that case is over, in case a second appeal lies and is filed in this Court. He also directed the High Court office to inform not only first appellate Court, but also the trial Court as soon as second appeal in that case is admitted by the High Court and the first appellate Court as well as trial Court to keep the entire of the case intact until the final disposal of appeal by this Court. When the matter came up again before Hon'ble Mehta J. on March 5, 1986, he raised a question as to whether the administrative order of the Hon'ble Chief Justice or the Registrar can override the Rules made by the High Court or not. If the Rules are obsolete, it is the duty of the Court to amend the Rules and no administrative order can take place to supersede the Rules. He issued a notice to the Registrar, Rajasthan High Court, Jodhpur as to why circular dated September 30, 1968, referred to in the reply of the Addl. Registrar be not quashed as the same is not in consonance with Rule 170. Meanwhile the Registrar was directed to strictly comply with Rule 170. Thereafter, the appeal came up for hearing before one of us (Hon'ble Kasliwal J.). The main appeal was decided by a separate judgement and a separate order was passed placing the matter before Hon'ble the Chief Justice for constituting a larger bench for deciding the question mentioned above which arose out of notice issued by Hon'ble Mehta J. on March 5, 1986.
(3.) Rules relevant for answering this reference are Rules 160, 163 and 164 of the Rajasthan High Court Rules, 1952 and Rule 170 of the General Rules (Civil) 1952, which are reproduced as under :- "160, Calling of record - The record of the case shall be sent for when an appeal is admitted, or when the Court otherwise orders that the record be called for. 163. Issue of notice and requisition for record - Where an order has been made directing notice of an appeal, revision or reference to issue, the office shall take immediate steps to cause notice thereof to be served on such persons, as are indicated in Rule 171 and shall also give notice thereof to the Court from whose decree or order the appeal or revision has been presented or by which the reference has been made. The office shall, if not directed to otherwise, also send a requisition to such Court asking it to transmit within ten days of the receipt of such requisition all material papers of the case or, if so directed, a part thereof, unless such record has already been received. 164. When record not to be summoned at once - Where a record is required from a Subordinate Court in an appeal or revision from an interlocutory order while proceedings in the case are pending in that Court, it shall not be sent for at once and only information of the fact that all material papers in the case would be sent for when actually required, shall be sent, and that Court shall submit the record immediately on receipt of intimation that the appeal or revision is ready for hearing. In case such record is requisitioned at the special request of a party, it shall be sent back to the Court concerned, as soon as possible and recalled only when the appeal or revision is ready for hearing. A case shall not be listed for hearing before the expiry of two months after the receipt of the record under this and the next preceding Rule 170 of the General Rules (Civil) reads as under :- "170. (1) Part A of Civil Records of Class I shall be preserved permanently. (2) Part A of Civil records of class II shall be preserved for 50 years. (3) Part A of Civil records of Class III shall be preserved for 24 years. (4) Parts B and C of Civil records of class I shall be preserved for 12 years. (5) Parts B and C of Civil records of classes II and III shall be preserved for 6 years. (6) Part D of Civil records of all classes shall be preserved for 3 years.";