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    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                   ON THE 13th DAY OF MAY, 2022




                                                               .

                                  BEFORE

            HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





               CIVIL REVISION PETITION No. 84 OF 2021

    BETWEEN:-
    ROOMI RAM





    SON OF SMT. DEI D/O CHAND
    R/O VILLAGE ANDWAS,
    PARGANA, HIMGIRI, TEHSIL SALONI,
    DISTRICT CHAMBA, H.P.                                 ....PETITIONER/
                   r                                          DEFENDANT

    (BY SH. VINOD CHAUHAN, ADVOCATE)

    AND
    TEJ SINGH


    SON OF SHRI CHAND
    R/O VILLAGE ANDWAS,
    PARGANA, HIMGIRI, TEHSIL SALONI,
    DISTRICT CHAMBA, H.P.                               ....RESPONDENTS/




                                                           PLAINTIFF.





    (BY MR. NIMISH GUPTA, ADVOCATE)
    Whether approved for reporting?        Yes.





             This petition coming on for         admission this day, the

    Court passed the following:

                               ORDER

Learned Trial Court vide order dated 6.10.2021

dismissed an application moved by the defendant- petitioner

herein under Order 8 Rule 1A(3) read with Section 151 of the

Code of Civil Procedure for placing on record memo of appeal

and certain order sheets of RSA No. 574 of 2008 instituted before

.

this Court. The order has been questioned by the defendant in

this petition.

2. A suit was filed by Tej Singh plaintiff (respondent

herein) seeking a decree for permanent prohibitory injunction

against Roomi Ram defendant (petitioner herein) in respect of

the suit land measuring 39-09-00 bighas, comprised in khata

khatauni No. 44/51, 42/49, situated in Mohal Andwas, Pargana

Himgiri, Tehsil Salooni, District Chamba. In the alternative, a

decree for possession was also prayed for. It was mentioned in

paras 3 & 4 of the plaint that defendant Roomi Ram had earlier

filed a Civil Suit for declaration and permanent prohibitory

injunction. This Civil Suit bearing No. 154 of 2001, titled as

Roomi Ram versus Tej Singh & others was regarding the same

suit land as involved in the present lis. That the said Civil Suit

was dismissed by the Civil Judge (Sr. Divn.) Chamba vide

judgment and decree dated 29.9.2007. Roomi Ram's appeal

against this judgment and decree was dismissed on 14.7.2008. It

was also stated in the plaint that Roomi Ram had preferred a

Regular Second Appeal alongwith an application under Section

5 of the Limitation Act before this Court but the application under

Section 5 of the Limitation Act was still pending and had not

been adjudicated upon. It was further pleaded that this meant

that the Regular Second Appeal had not been registered or

.

entertained by this Court. Respondent/plaintiff Tej Singh also

pleaded in the penultimate para of the plaint that previously

instituted suit between the same parties for declaration

regarding the same subject matter stood decided and no other

matter regarding the same cause of action was pending between

the parties in any Court. Paras 3, 4 and 11 of the plaint read as

under:-

"3.

r That defendant Roomi Ram earlier filed a suit

for declaration and permanent prohibitory injunction vide Civil Suit No. 154/01 titled as "Roomi Ram versus Tej Singh & others, regarding the same suit land which

was dismissed by Ld. Civil Judge (Sr. Divn.) Chamba vide judgment and decree dated 29/09/2007 and vide that judgment the present plaintiff Tej Singh is

declared/found owner in possession of the suit land.

Thereafter the said Roomi Ram (Present Defendant) filed an appeal before the Ld. District Judge Chamba

against the said judgment and decree passed by the Ld. Civil Judge (Sr. Divn.) Chamba vide Civil Appeal No. 10/2008/07 and same was dismissed vide judgement and decree dated 14/07/2008.

4. That defendant Roomi Ram filed a regular second appeal alongwith an application under Section 5 of Limitation Act in the Hon'ble High Court of H.P. The application under Section 5 of Limitation Act is still

pending and same has not been decided yet as such appeal has not been registered or entertains. .........

.

11. That no suit regarding same cause of action is pending before any Court of law or decided earlier except the present suit. However, suit for declaration of

the same subject matter has been decided and detail of the said suit has already been given in para No. 3 & 4 in the plaint."

On the above submissions, the suit was instituted by

Tej Singh against Roomi Ram.

In his written statement, Roomi Ram denied the

assertions made in the plaint. He also denied that Regular

Second Appeal preferred by him before this Court had not been

registered.

3. Parties led evidence in support of their respective

contentions. The matter was fixed for arguments. After hearing

the submissions the case was fixed for pronouncement of order

on 20.6.2019.

It appears from the record that order was not

announced and the matter was perhaps adjourned again for

arguments. On 27.7.2019 petitioner/defendant Roomi Ram

moved an application under Order 8 Rule 1A(3) read with Section

151 CPC with the prayer that he be allowed to place on record

certified copies of order sheets dated 31.10.2008, 30.4.2010,

13.5.2010 and 1.12.2016 as well as certified copy of

memorandum of Regular Second Appeal preferred by him before

.

this Court arising out of previous litigation between the parties.

It was also stated in the application that application filed under

Section 5 of the Limitation Act moved by Roomi Ram alongwith

the Regular Second Appeal had been allowed by this Court and

the said Appeal had been entertained. It was registered as RSA

No. 574 of 2008 on 31.10.2008.

Plaintiff Tej Singh opposed the prayer of the defendant.

In his reply the plaintiff stated that defendant had adequate

opportunity to lead his evidence, evidence in the matter stood

closed, arguments in the matter had already been heard, matter

thereafter was fixed for pronouncement of order on 20.6.2019.

That the defendant intended to re-open the case by placing on

record documents mentioned in the application. While opposing

the defendant's application, plaintiff also submitted that he had

not appeared in the Regular Second Appeal before this Court and

further that no stay order has been passed by this Court in the

Regular Second Appeal.

After hearing learned counsel for the parties, learned

Trial Court vide order dated 6.10.2021 dismissed the application

observing therein that the defendant was in the know of the

documents sought to be brought on record. Had he exercised

due diligence the same could have been produced on record at

the time of leading his evidence. The application was filed at a

.

belated stage. For all these reasons, the prayer made by the

defendant was declined. Defendant has agitated this order in this

petition.

4. Learned Counsel for the defendant/petitioner would

submit that the documents which the petitioner wants to place

on record are relevant for coming to just and proper decision of

the case. That previous litigation between the parties regarding

the same subject matter was still alive in form of RSA No. 574 of

2008 pending adjudication before this Court. The impugned

order denying production of documents has caused prejudice to

the petitioner/defendant.

Learned Counsel for the respondent/plaintiff defended

the impugned order highlighting the reasoning given there.

Learned counsel also argued that application under Order 8 Rule

1A(3) CPC was not maintainable at the stage of advancing the

arguments.

5. I have heard learned counsel for the parties and

considered the relevant material on record.

Sugandhi (dead) by LRs. & anr. Versus P. Rajkumar,

Civil Appeal No. 3427 of 2020, decided by Hon'ble Apex Court on

13.10.2020 was a case where defendant's application moved

under Order 8 Rule 1A(3) CPC seeking leave of Court to produce

additional documents was dismissed by the learned Trial Court

.

and the order was confirmed by the High Court. After discerning

Order 8 Rule 1A(3) CPC, Apex Court held that if the procedural

violation does not seriously cause prejudice to the adversary

party, the Court must lean towards doing substantial justice.

Litigation is nothing but a journey towards truth which is the

foundation of justice and Court is required to take appropriate

steps to thrash out the underlying truth in every dispute.

Relevant paras of the judgment read as under:-

"8. Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the

court alongwith the written statement, with the leave of the court. The discretion conferred upon the court to

grant such leave is to be exercised judiciously. While there is no straight jacket formula, this leave can be

granted by the court on a good cause being shown by the defendant.

9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is

nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in

.

every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule(3)."

In the instant case the approach of learned Trial Court

in dismissing the application for lack of diligence on part of the

defendant cannot be faulted.

to It is not in dispute that the

evidence of the defendant was already over at the time he

moved the application under Order 8 Rule 1A(3) read with

Section 151 CPC. It also becomes apparent from the record that

the arguments in the Civil Suit had also been heard at one stage

in the year 2019. However having observed this, it is also a fact

that the order in the matter was not pronounced and the matter

thereafter was repeatedly fixed for hearing of arguments. It is

still at the stage of advancing of arguments. The application in

question was moved by the defendant on 27.7.2019. What is

sought to be produced in terms of this application is certain

order sheets and memorandum of appeal in RSA No. 574 of 2008

instituted before this Court. A perusal of the reply filed by the

plaintiff to the application in question makes it apparent that

even the plaintiff has not disputed the pendency of the Regular

Second Appeal. What he has stated there is that he has not

appeared before this Court and that there is no stay order

passed by this Court in the Regular Second Appeal. It also cannot

.

be lost sight of that the plaintiff/respondent has himself averred

in paragraphs 3, 4 & 11 of the plaint about the previous litigation

between same parties with respect to same subject matter and

his seemingly unawareness about the possibility of previous

litigation between him and the defendant with respect to same

subject matter being still alive in further appeal before this

Court. The documents are necessary for arriving at just decision

of the case.

r In view of the stand taken by the

respondent/plaintiff in his pleadings, no prejudice will be caused

to him in case the application is allowed. Considering all these

factors, application moved by petitioner/defendant seeking

leave to produce documents is allowed. However,

respondent/plaintiff cannot be allowed to go uncompensated for

the callous and negligent approach of the petitioner/defendant in

moving the application at such a belated stage. Hence,

application moved under Order 8 Rule 1A(3) read with Section

151 CPC is allowed but subject to cost of `10,000/- (rupees ten

thousand only). The cost shall be paid by the defendant to the

plaintiff before the Trial Court.

Learned Counsel for the petitioner/defendant has

apprised that the matter is fixed before the learned Trial Court

on 25.5.2022. Cost shall be paid by the petitioner/defendant to

the respondent/plaintiff before the learned Trial Court on

.

25.5.2022.

Parties through their learned counsel are directed to

appear before the learned trial Court on 25.5.2022.

It is made clear that the observations made herein

above are confined to the present petition only and the learned

trial Court shall decide the matter uninfluenced by the same.

Petition stands disposed of in the aforesaid terms, so

the pending miscellaneous application(s), if any.

(Jyotsna Rewal Dua), Judge.

May 13 , 2022 (PK)