Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1299

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Bipin Chander Negi, J.
Harish Kumar - Petitioner
Versus
Naresh Kumar - Respondent
CMPMO No.126 of 2025
Decided On : 10-09-2025

Advocates Appeared:
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.

Belated production of original document central to dispute allowed post-evidence if relevant to real controversy, to serve justice in family Will dispute, subject to costs and limited proof opportunities; procedure not to defeat substantive rights.

Headnote:(A) Code of Civil Procedure, 1908 - Order 8 Rule 1A(3) r/w Section 151 - Belated application by defendant to produce original Will after evidence closed and at arguments stage - Trial Court dismissed on grounds that secondary evidence could have been led earlier and allowing would reopen entire trial - Application relevant to prove due execution of Will (Issue No.8, onus on defendant) - High Court under Article 227 of Constitution allows petition subject to costs of Rs.25,000/-, directing original Will be taken on record and limited opportunities to lead proof and rebuttal evidence within six months. (Paras 6,8,20,21,24)

(B) Production of Documents - Belated production - If document relevant to real controversy and produced before arguments complete, should normally be received with opportunity to prove and rebut, to serve ends of justice - Prejudice to other side compensable by costs - Procedure handmaid of justice, not to defeat substantive rights unless deliberate non-compliance or mischief. (Paras 10-12,15-16,20-21)

(C) Article 227 Constitution - Supervisory jurisdiction - Invokable for grave dereliction, miscarriage of justice or perversity - Here, refusing central document would cause injustice in family dispute over last wish of deceased. (Paras 15,22-23)

Facts of the case:
Suit for declaration that registered Will executed in favour of defendant is illegal, null and void, with permanent injunctions. Written statement filed asserting Will's validity. Issues framed including entitlement to declaration of nullity (on plaintiff) and validity of Will (on defendant). Plaintiff exhibited photocopy of Will. Defendant examined attesting witness and scribe but led no secondary evidence despite opportunities. Post-evidence, at arguments, defendant applied to produce original Will claiming it lost/misplaced. Trial Court rejected.

Findings of Court:
Original Will ordered taken on record; defendant to prove it (max two opportunities); plaintiff rebuttal opportunity; conclude within six months subject to Court convenience; costs to specified fund; parties appear on fixed date.

Issues: Whether to permit belated production of original Will central to dispute after evidence closed, despite procedural lapses and potential reopening of trial.

Ratio Decidendi: Interest of justice mandates receiving relevant document like original Will to decide real controversy (validity), fulfill last wish in family dispute, and ascertain truth; earlier lapses in secondary evidence not deliberate mischief warranting rejection; costs compensate inconvenience. (Paras 19-21)

Result: Petition allowed.

Table of Content
1. suit declares will invalid; evidence closed after issues framed. (Para 1 , 2 , 3 , 4 , 5)
2. belated original will production application dismissed by trial court. (Para 6 , 7 , 8)
3. belated relevant documents producible before arguments conclude. (Para 9 , 10 , 11 , 12)
4. missed opportunities for secondary evidence bar late production. (Para 13 , 14 , 15)
5. procedure aids justice; lapses noted but not deliberate. (Para 16 , 17 , 18)
6. core dispute document allowed with costs for justice. (Para 19 , 20 , 21)
7. article 227 corrects miscarriage by permitting will evidence. (Para 22 , 23 , 24)

JUDGMENT :

Bipin Chander Negi, J.

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. 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.

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.

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 petiti