Himachal Pradesh High Court
Date Of Decision: 10Th September vs Naresh Kumar on 10 September, 2025
2025:HHC:31157 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.126/2025 Date of Decision: 10th September, 2025.
Harish Kumar .....Petitioner
Versus
.
Naresh Kumar ....Respondent
Coram
The Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1 For the Petitioner: Mr. B.S. Chauhan, Sr. Advocate with Ms. Aditi Rana, Advocate.
For the Respondent: Mr. G.D. Verma, Sr. Advocate with Mr. Digvijay Singh Bisht, Advocate.
Bipin Chander Negi, Judge (oral).
By way of the present petition, a challenge has been laid to order dated 19.03.2025, passed by the learned Senior Civil Judge, Rampur Bushahr, District Shimla, HP in CMA No.23 of 2025, whereby an application filed under Order 8 Rule 1A(3) read with Section 151 CPC by the petitioner/defendant has been dismissed.
2. Heard counsel for the parties, perused the impugned order and documents appended along with the present petition.
3. The respondent/plaintiff, in the case at hand, has filed a suit for declaring the Will No.16/2017 dated 17.03.2017 registered with the Sub Registrar Kumarsain executed by late Sh. Kedaru son of late Sh. Jobanu in favour of the present petitioner/defendant as null and void.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 2 2025:HHC:31157 Insofar as the written statement is concerned, suffice it to say that the present petitioner/defendant has categorically .
averred that the Will made by late Sh. Kedaru in his favour of the respondent. The written statement was filed on 26.09.2019.
4. Based on the aforesaid pleadings, the following issues were framed on 16.11.2019:-
1-Whether the plaintiff is entitled-for-decree- of-declaration to the effect that the Will No. 16/2017 dated 17.03.2017 registered with Sub-Registrar Kumarsain executed by late Sh.
Kedaru S/o late Sh. Jobanu, Village Shelag, P.O Pharal, Tehsil Kumarsain, District Shimla in favour of the defendant is liable to be declared as Illegal, null and void, as prayed for? OPP
2. Whether plaintiff is entitled for decree of permanent prohibitory Injunction for restraining the defendant from creating any charge and causing any interference over the suit land, as prayed for? OPP
3. Whether plaintiff is entitled for decree of permanent prohibitory injunction for restraining the defendant from attesting the mutation on the basis of the Will, as prayed for? OPP
4. Whether the suit is not maintainable, as alleged? OPD.
5. Whether the plaintiff is estopped to file the present suit by her is own acts, conducts, deeds, commissions and omissions, as alleged? OPD.
6. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD.::: Downloaded on - 12/09/2025 21:32:04 :::CIS 3
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7.Whether the plaintiff has concealed the material facts from this court, as alleged ?...OPD .
8 Whether the Will executed by late Sh. Kedaru in favour of the defendant is legal and valid Will, as alleged ?...OPD
9. Relief.
5. For our purpose, Issue No.1 and Issue No.8 would be of relevance in the present proceedings. Onus insofar as Issue No.1 is concerned, lay on the respondent/plaintiff, whereas qua issue No.8, onus lays upon the petitioner/defendant. Subsequent to the framing of the issues, evidence was led by both the parties. Evidence of the plaintiff was closed on 25.04.2023. The evidence of the petitioner/defendant was closed by his own statement on 10.12.2024. Insofar as Will dated 17.03.2017 is concerned, the copy of the same was produced on record by the present respondent/plaintiff and the same was exhibited as Ex.PW1/C (in the statement of the plaintiff).
Admitted position, in the case at hand, insofar the present petitioner/defendant is concerned is that he has already examined the attesting witness (Prem Lal) and Scribe (Ujwal Mehta), insofar as Will dated 17.03.2017 is concerned.
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6. Post conclusion of evidence, the matter was listed for arguments. It is at that stage, an application under .
Order 8 Rule 1A (3) CPC was filed by the present petitioner. Copy of the same is placed on record. From a perusal of the same, it is evident that reason cited for the late production of the original Will is that as per the petitioner, the same had been lost/misplaced and hence,
7. to the same could not be produced earlier.
In response to the said application, the present respondent/plaintiff has categorically averred that the plea of the original Will having been lost by the present petitioner/defendant is false, as had the same been the case, then nothing precluded the present petitioner/defendant from leading secondary evidence in this respect. Moreso, when Issue No.8 was framed with respect to due and valid execution of the Will, the onus thereupon lay on the present petitioner/defendant.
8. In the aforesaid facts and attending circumstances, the learned trial Court dismissed the application for the following reasons:-
a. That had the Will in the case at hand been lost by the present petitioner/defendant then in that eventuality, the present ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 5 2025:HHC:31157 petitioner/defendant could have always taken recourse to prove the same by way of leading .
secondary evidence.
b. Permitting the placing of the original Will now at this stage would result in opening of the entire trial as post placing the same on record, the petitioner/defendant would seek liberty to examine witnesses to establish the due execution of the Will.
9. In the aforesaid backdrop, the first and foremost contention raised on behalf of the petitioner is that the litigating parties in the case at hand are blood relations.
The dispute, in the case at hand is with respect to the Will dated 17.03.2017. In fact, as per the learned counsel for the petitioner, this is the last wish of their deceased relative, hence, it is submitted that proving of the same would give a quietus to the entire dispute inter se the partes and would result in fulfilling the last wish of their deceased relative. Hence, interest of justice requires that the same be taken on record.
10. The second contention raised on behalf of the petitioner is that the Will, in the case at hand, dated 17.03.2017 is relevant to determine the real issue of ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 6 2025:HHC:31157 controversy inter se the parties. The whole purpose of trial is to find the real truth in the case at hand. Other than the .
aforesaid, learned counsel for the petitioner submits that insofar as Order 8 Rule 1A (3) CPC is concerned, it only regulates belated production of documents.
11. In order to buttress his submission, learned Senior Counsel for the petitioner has placed reliance upon 1994 (4) SCC 659, titled Billa Jagan Mohan Reddy & Anr.
Vs. Billa Sanjeeva Reddy & Ors. The relevant extract is reproduced hereinbelow for ready reference:-
"4............ It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 4 1, Rule 27 CPC the appellate court would receive the documents and consider their effect thereof.
When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 7 2025:HHC:31157 if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy. Under these .
circumstances, the trial court was not justified in refusing to condone the delay and to receive the documents."
12. He further placed reliance upon AIR 1995 (82) Andhra Pradesh 291, titled Kanchrela Saradha Devi Vs. Saripella Sivaramaraju and Ors.
extract is reproduced hereinbelow for ready reference:-
r The relevant "7. In addition to the legal implication stated above, this court feels that they may be further amplified. In the nature of the true implication of Order 13, Rules 1 and 2 of C.P.C. the word 'shall' used therein may be difficult to be read as mandatory. In the Code of Civil Procedure there are various stages at which documents can be produced for the perusal of the Court and for various other purposes. The illustrations are Order 7, R. 14, Order 13 Rule 2, Order 41 Rule 27 and Order 13 Rule 2(2)(a) and (b) of C.P.C. Therefore, the mere production of document at any stage may be only regulatory and not mandatory. In order to serve the ends of justice, the production of document may be accepted by the court by condoning the delay in producing the same, depending upon the facts' and circumstances of each case subject to ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 8 2025:HHC:31157 production of the same by way of evidence at the relevant time. Mere production of the document will not normally prejudice the .
adversary unless it is established that the .
party intending to produce the document did it only to protract the litigation or to burden the record to confuse the issues or to subserve any ulterior motive within the knowledge of the parties. Particularly when the document can be produced by the party for the cross- examination of the witnesses of the other party or handover to a witness merely to refresh his memory by virtue of Order 13, Rule 2(2)(a) and (b) of C.P.C., it indicates that the mere production of the document at any stage either prevented or permitted can never be of serious justiciable intent. Perhaps the law must have intended to enforce the discipline on the part of the parties to regulate the proceedings expeditiously and properly and not to give opportunity to cook-up documents. Thus the words 'sufficient cause' in the provision should be very liberally construed to serve the order of justice. The earlier production of the documents will ensure its genuineness, its reliability and the evidentiary value. Subject to these limitations and the safeguards provided in the provisions, Order 13, Rule 2 of C.P.C. cannot be termed as a mandatory one in that sense.
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9. With all that, it is still necessary to examine whether such an order could be passed without imposing any liability on the .
defendants like mulcting in costs or otherwise.
Because every objection or counter affidavit or application of mind involves some amount of costs and waste of energy. That should be suitably compensated in costs. That is how even assuming that such an order has put the other side to inconvenience, it cannot be irreparable as it can be compensated by mulcting the other side with costs. The suit is of the year 1985. The application under Order 13 Rule 2 of C.P.C. was filed in the year 1994. The application was totally belated. During the passage of almost a decade, the litigation must have taken various shapes and moved to various stages by putting the plaintiff to certain advantages and by filing such an application, the plaintiff had go (to) again reapply his mind to meet such a situation.
Hence it was a fit case to award some costs and this court feels Rs. 50/- would be sufficient costs."
13. Learned Senior Counsel for the respondent contends that opportunity to lead evidence with respect to the alleged lost Will, in the case at hand, has been missed by the petitioner/defendant on numerous occasions.
Photocopy of the Will was exhibited by the ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 10 2025:HHC:31157 respondent/plaintiff while leading their evidence. At the time of leading the petitioner/defendant's evidence, no .
application for leading the secondary evidence, in the case at hand, was filed.
14. Even while scribe and the attesting witnesses insofar as the Will is concerned were examined, an opportunity arose in favour of the petitioner/defendant to have moved an appropriate application for secondary evidence insofar as the lost Will is concerned.
r leading In the aforesaid backdrop, it is submitted that the procedural defect in the case at hand has not been rectified after even having been noticed at various stages of the case, hence, such negligent conduct should entail rejection of the present application.
15. Learned Senior Counsel for the respondent submits that the present petition has been preferred under Article 227 of the Constitution of India and the Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India. It is further contended that if in case the application, in the case at hand, is allowed, then the petitioner/defendant would ask for proving the document so placed on record thereby protracting the trial.
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16. Procedure is a handmaid of justice. The same should not be made a tool to deny justice or to defeat .
substantive rights. To the aforesaid principle, there are well recognized exceptions, the same have been laid down by the Apex Court in 2006 (1) SCC 75, Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Anr. The relevant extract is reproduced hereinbelow:-
"17. Non-compliance
to with any
requirement relating to a pleading, memorandum of r procedural appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :-
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non- compliance.
ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;::: Downloaded on - 12/09/2025 21:32:04 :::CIS 12
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iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
.
v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant;"
17. The written statement in the case at hand was filed on 26.09.2019. At the time of filing the written statement, a list of documents and a list of reliance was required to be filed by the present petitioner/defendant. Since the Will, in the case at hand, dated 17.03.2017 was not filed along with written statement, hence, the same could not have found any mention in the list of documents filed along with the written statement. In the list of reliance, if any filed with written statement, the petitioner/defendant was required to point out that the Will, in the case at hand, was not in his possession at the time of filing of the written statement. No list of reliance, if any filed along with written statement, has been shown to the Court.
18. The evidence of the respondent/plaintiff was closed vide his own statement on 10.12.2024. The respondent/plaintiff while leading his evidence had got exhibited the photocopy of the Will. The evidence of petitioner/defendant was closed vide his own statement on ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 13 2025:HHC:31157 10.12.2024. The petitioner/defendant had examined the attesting witness (Prem Lal) and Scribe (Ujwal Mehta) with .
respect to the Will dated 17.03.2017. Even at that stage, nor when the respondent/plaintiff had leading his evidence was an application for leading secondary evidence filed by the present petitioner/defendant. Hence, in the case at hand, it is evident that on numerous occasions, as has been pointed supra, the petitioner/defendant was made aware of the existence of the photocopy of the Will in the case at hand on record and all along the petitioner/defendant was aware of the absence of the original from the record. Despite the same, no steps were taken to lead secondary evidence for bringing on record the Will dated 17.03.2017.
19. In the aforesaid factual matrix wherein procedural lapses on the part of the petitioner/defendant are writ large the issue to be considered, is as to whether the application under Order 8 Rule 1A CPC, for placing on record the Original Will should be allowed.
20. The document now sought to be placed on record is the original of the Will dated 17.03.2017. The same is the bone of contention inter se the parties. It is relevant for an adjudication of the real issue in the case at hand. In ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 14 2025:HHC:31157 terms of the law laid down by the Apex Court in Billa Jagan Mohan Reddy (supra), normally if a document, .
which is relevant to decide the real controversy in issue is produced before the arguments are completed, then they should be received in evidence and an opportunity given to prove them and rebuttal if any.
21. The Will, in the case at hand, is the last wish of the deceased. The validity of the same is a subject matter of dispute inter se the parties. A decision on the same would settle the dispute inter se the parties, who are close relatives and if found valid, the last wish of the deceased would also be fulfilled. In this view of the matter, the interest of justice requires that the original Will be taken on record. Moreover, placing the Will on record would subserve the purpose of the trial in the case at hand i.e. the determination of the truth. The belated production of the documents, in the case at hand, and the inconvenience, which the other party would be put to, in the case at hand, on account of receiving the document and affording an opportunity to prove the same can duly be compensated by imposing costs on the petitioner/defendant in the case at hand.::: Downloaded on - 12/09/2025 21:32:04 :::CIS 15
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22. The jurisdiction under Article 227 of the Constitution of India can be invoked to set right a grave .
dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. (See Sadhana Lodh vs. National Insurance Co. Ltd. & another, (2003)3 SCC 524, and Garment Craft vs.
23. to Prakash Chand Goel, (2022)4 SCC 181).
In the case at hand, for the reasons stated here-in-
above, I am of the considered view that grounds are made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India.
Invoking jurisdiction, in the case at hand, would help present miscarriage of justice.
24. In view of above-stated, I find merit in the present petition and the same is allowed, subject to the payment of costs quantified at Rs.25,000/-, in the case at the hand, to be deposited in the "Chief Justice Disaster Relief Fund 2025, Bank Name: UCO Bank, Account No. 18330110060070, IFSC Code: UCBA0001833, Branch: High Court Complex, Shimla", receipt thereof be produced before the learned trial Court on the date fixed for appearance therein. The original Will is ordered ::: Downloaded on - 12/09/2025 21:32:04 :::CIS 16 2025:HHC:31157 to be taken on record. The learned Court below is directed to afford due opportunity to the petitioner/defendant to .
lead evidence to prove the same and an opportunity be afforded to the respondent/plaintiff to lead rebuttal evidence, if any. The evidence it is made clear shall be brought by both the parties on their own responsibility. Not more than two opportunities shall be afforded to either party to lead their respective evidence. The needful be done/concluded, subject to convenience of the Court within six months from 24.09.2025.
Pending miscellaneous application(s), if any, shall also stand disposed of.
Parties are directed to appear before the learned trial Court on 24.09.2025.
(Bipin Chander Negi) Judge 10th September, 2025 (Gaurav Rawat) ::: Downloaded on - 12/09/2025 21:32:04 :::CIS