Shiv Shankar And Another vs Harendra Singh And 8 Others on 3 April, 2026





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2026:AHC:72255
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
MATTERS UNDER ARTICLE 227 No. - 4147 of 2026   
 
   Shiv Shankar And Another    
 
  .....Petitioner(s)   
 
 Versus  
 
   Harendra Singh And 8 Others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Om Singh Rathaur, Sudhanshu Pandey   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Vijay Anand Rai   
 
     
 
 Court No. - 5
 
   
 
 HON'BLE VIKAS BUDHWAR, J.

1. Heard Sri Sudhanshu Pandey, learned counsel for the defendant-petitionerS sand Sri Vijay Anand Rai, counsel for the plaintiff-respondents.

2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits thus with the consent of the parties, writ petition is being decided at the fresh stage.

3. The case of the petitioners is that an Original Suit No. 867 of 1993 came to be instituted by the plaintiff-respondents against the defendant-petitioners on 21.11.1993 before the Court of learned Munsif (West), Ballia for cancellation of the Will deed dated 10.04.1972 and 17.04.1989. The said suit was dismissed exparte on 01.07.2019 by the Court of Civil Judge (Senior Division), FTC, Ballia. Aggrieved against the same, the plaintiff-respondents preferred Civil Appeal No. 44 of 2019 (Harendra v. Raj Kumar and others). During the pendency of the miscellaneous appeal, on 09.10.2025 an application came to be preferred for a direction to the defendant no. 2 in the said suit, the defendant-petitioners herein to produce the Will dated 17.04.1989, the said application was contested by defendant-petitioners. However, by virtue of the order dated 19.01.2016, the application 121 Ga-2 came to be allowed directing the defendant-petitioner no. 1, Shiv Shankar S/o Late Shivmuni to produce and file the Will dated 17.04.1989 and also to apprise where and in which Court, the said Will was filed.

4. Questioning the order dated 19.01.2026 passed by Additional District & Sessions Judge, Court no. 1, Ballia in Civil Appeal No. 44 of 2019, the present petition has been preferred.

5. Learned counsel for the defendant-petitioners had submitted that the order dated 19.01.2026 cannot be sustained even for a single moment. Elaborating the said submissions, it is contended that every attempt has been made just in order to fill up the lacunae, particularly, when it is not the case of the plaintiff-respondents that they were not aware about the existence of the Will dated 17.04.1989 in view of the fact that the suit bearing No. 867 of 1993 came to be instituted by the plaintiff-respondents for seeking cancellation of the Will dated 17.04.1989. Contention is that the said suit came to be dismissed on 01.07.2019 on the ground that no evidence was led so as to entitle the plaintiff-respondents for any relief of cancellation of the Will dated 17.04.1989 and a Civil Appeal No. 44 of 2019 came to be instituted which remain pending, however, now on 09.10.2025, an application has been preferred for a direction to the defendant / petitioner no. 1 to produce the Will dated 17.04.1989. Contention is to the extent also that the application dated 09.10.2025 seeking direction as referred to above does not depict as to under which provision, the said request was made. It is also contended that at best, the said application can be said to be under Order 41 Rule 27 of the CPC and in view of the express provisions contained therein, the said application can only be allowed where such additional evidence was not within the knowledge of the party or could not after the exercise of the due diligence, be produced by him at the time when the decree appealed against was passed and it is also not the case that the appellate court requires such evidence either to enable it to pronounce judgment, or for any other substantial cause. Reliance has been placed upon the judgement of the Hon'ble Apex Court in Civil Appeal Nos. 5168-5169 of 2011; Gobind Singh and others v. Union of India and others, decided on 09.03.2026 and Matters under Article 227 No. 4405 of 2019 (Smt. Surendra Kaur and 2 others v. Vivek Gupta and 3 others), decided on 31.05.2019.

6. Additionally, it has been argued that the case of the plaintiff-respondents also does not fall within the Order VII Rule 14, particularly, when the plaintiff-respondents though has sought production of the document on which the plaintiff relies but it has not been stated before the trial court as on whose possession, the said document is with. Thus, it is prayed that the order impugned be set aside.

7. Countering the submissions so made by the learned counsel for the defendant-petitioners, Shri Rai who appears for the plaintiff-respondents has submitted that the order impugned does not require any interference. He submitted that though in the suit so instituted in the year-1993, the defendant-petitioners appeared and thereafter they vanished and the suit was dismissed exparte and in an appeal so preferred in the year-2019, an application came to be preferred on 09.10.2025 before the lower appellate court for production of the Will deed dated 17.04.1989, as according to the plaintiff-respondents, the Will deed dated 17.04.1989 is in possession of the defendant-petitioners no. 1, Sri Shiv Shankar as in the proceedings under Section 34 of the Land Revenue Act, the photocopy of the Will deed was placed. However, since there cannot be a certified copy of the photocopy so the plaintiff-respondents could not place either before the trial court or before the appellate court. Submission is that the application so preferred by the plaintiff-respondents on 09.10.2025 seeking production of the of the Will deed dated 17.04.1989 from the defendant-petitioner no. 1 is as per Order XI Rule 14 of the CPC. He submits that no prejudice whatsoever is being caused as the apprehension of the defendant-petitioners that lacunae is being filled at the appellate stage would not have any relevance, particularly, when the plaintiff-respondents has to substantiate his right on merits and further appeal is a continuation of the suit. Reference has been made in Section 165 of the Evidence Act and reliance has been placed upon the judgment in Jamatraj Kewalji Govani v. State of Maharashtra; 1968 0 AIR (SC) 178, Maj Retd Sukesh Behl & Anr v. Koninklijke Philips Electroninc NV; 2016 LawSuit (Del) 262 and Delhi High Court judgment in Kusum Sharma v. Mahinder Kumar Sharma; 2020 0 Supreme(Del) 756.

8. I have heard learned counsel for the parties and gone through the records carefully.

9. Facts are not in issue. It is not in issue that an O.S. No. 867 of 1993 came to be instituted by the defendant-respondents before the Court of learned Munsif (West), Ballia for cancellation of the Will deed dated 10.04.1973 and 17.04.1989. The suit was exparte dismissed on 01.07.2019 by Civil Judge (Senior Division), FTC, Ballia. A Civil Appeal No. 44 of 2019 came to be preferred against the judgement dated 01.07.2019 of the trial court before District Judge, Ballia. On 09.10.2025, an application came to be preferred by the plaintiff-respondents seeking a direction upon the defendant-petitioner no. 1, Shiv Shankar to produce the Will dated 17.04.1989 which an objection came to be allowed on 19.01.2026 by the court of Additional District Judge, Court no. 1, Ballia. The bone of contention between the parties is whether the said exercise could have been undertaken at the appellate stage or not. Order VII Rule 14 of the CPC provides for production of the document on which plaintiff sues or relies, according to which, where a plaintiff relies upon the document or relies upon the document in his possession or power in support of his claim, he shall enter a document in the list and shall produce it in the Court when plaint is presented by him and shall, at the same time, deliver the document and a copy thereof to be filed with the plaint. Order 7 Rule 14 (2) of the CPC provides for a contingency whereat the said document is not in the possession or power of the plaintiff then he shall wherever possible state in his possession power where is it. Order 7 Rule 14 of the CPC is quoted hereinunder:

"14. Production of document on which plaintiff sues or relies.?(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory."

10. Further Order XI Rule 14 CPC deals with production of documents, according to which, it shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. Order XI Rule 14 of the CPC is quoted hereinunder:

"14. Production of documents.? It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just."

11. Plainly and simply, these are the two provisions which deal with production of the documents. Importantly, Rule 14(2) of Order VII throws light upon the said aspect, according to which, where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. The words employed wherever possible does not out-rightly ruled out, the possibility of informing the Court through an appropriate application at the appellate stage. Nonetheless, Order XI Rule 14 CPC makes it lawful to the Court, at any time during the pendency of a suit, to order the production by any party thereto, upon oath, any such document.

12. Notably, appeal is a continuation of a suit. Here there is a redeeming feature also that is the Will dated 17.04.1989 is an unregistered Will. Thus by all possibilities either the testator or ultimately beneficiary in normal circumstances would be in possession of the Will. It is also the stand of the plaintiff-respondents that the photocopy of the Will dated 17.04.1989 was filed in the proceedings under Section 9(2) of the Consolidation Act. Since it is a matter of common knowledge that there cannot be any certified copy or photocopy of any document.

13. Nonetheless, the appellate court by the order dated dated 19.01.2026 after meticulously considering the case of the parties while recording cogent reasons, has issued a direction upon the defendant-respondent no. 1 to produce the Will dated 17.04.1989 with an additional direction to apprise the Court in which the said document was filed. Moreover, Section 165 of the Evidence Act also empowers the Court to order for production of the documents with a caveat that the said Section would not authorize to Judge to compel any witness to answer any question or to produce any document in that regard. Bearing in mind the aforesaid factual situation, this Court is of the opinion that the order passed by the court of Additional District Judge, Court No. 1, Ballia impugned in the petition cannot be faulted.

14. Accordingly, the petition stands disposed of.

15. At this stage, learned counsel for the defendant-petitioners has submitted that the suit itself was not maintainable as it was barred by limitation. In the opinion of the Court, it is always open for the dependent/petitioners to raise legal submissions regarding non-maintainability of the suit on the ground that it is barred by limitation and, in case, such objections are raised, there is no reasons to disbelieve that the same shall be considered strictly in accordance with law.

(Vikas Budhwar,J.)

April 3, 2026

Ashu