Smt. Nawal vs Khem Ji
2023 Latest Caselaw 1209 Raj

[2023/RJJD/002976]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14159/2022

1. Smt. Nawal W/o Jagjivan Lal Patel, Aged About 67 Years, Resident Of Khermal, Tehsil Aaspur, District Dungarpur (Raj.).

2. Jagjivan Lal S/o Shri Lal Ji, Aged About 70 Years, Resident Of Khermal, Tehsil Aaspur, District Dungarpur (Raj.).

3. Bhupendra S/o Jagjivan Lal, Aged About 42 Years, Resident Of Khermal, Tehsil Aaspur, District Dungarpur (Raj.).

----Petitioners Versus Khem Ji S/o Shri Lal Ji, Aged About 62 Years, Resident Of Khermal, Tehsil Aaspur, District Dungarpur (Raj.).

                                                                 ----Respondent


For Petitioner(s)         :     Mr. Himmat Jagga
For Respondent(s)         :     Mr. Rajesh Choudhary



            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                     Order

 31/01/2023

The instant writ petition has been filed by the petitioner-

defendants feeling aggrieved by the order dated 16.08.2022,

passed by Additional District and Sessions Judge, Sagwara,

District-Dungarpur whereby the application preferred by

petitioner-defendants under Order VIII Rule 1A (3) C.P.C., seeking

leave of the court to produce sale agreement dated 31.07.1995

and ikrarnama dated 20.02.2006 was rejected.

The facts essential for adjudication of the writ petition are as

follows:-

[2023/RJJD/002976] (2 of 6) [CW-14159/2022]

The respondent-plaintiff filed a suit for partition seeking

permanent injunction against petitioner-defendants before the

court of Additional District and Sessions Judge, Sagwara, District-

Dungarpur. In the plaint dated 29.06.2020, it was stated inter alia

that the petitioner No.2 is brother of respondent; petitioner No.1

is sister in law; and petitioner No.3 is his nephew. The residential

plot in Khasra No.1358/2 situated at Ramgarh is in joint ownership

and possession of the respondent-plaintiff and the petitioner-

defendants which was purchased by petitioner No.1 and

respondent on 21.03.1996 for a sale consideration of ₹3,06,000/-.

After service of notices, the petitioner-defendants filed

written statement with the averment that the complete

consideration of the residential property was paid by them, though

the disputed property was registered in the names of petitioner

No.1 and the respondent-plaintiff. The trial court framed issues on

the basis of pleadings of the parties. Thereafter, the respondent-

plaintiff and his son were examined as P.W-1 and P.W-2. At the

stage when matter was fixed for evidence of the petitioner-

defendants, an application dated 05.07.2022 was moved under

Order VIII Rule 1A (3) seeking leave of the court to produce sale

agreement dated 31.07.1995 and ikrarnama dated 20.02.2006

which was rejected by the learned trial court vide order dated

16.08.2022. Aggrieved by the order dated 16.08.2022, present

writ petition has been filed.

Learned counsel for the petitioner-defendants submitted that

the learned trial court has not taken into consideration the fact

that these documents (sale agreement dated 31.07.1995 and

[2023/RJJD/002976] (3 of 6) [CW-14159/2022]

ikrarnama dated 20.02.2006.) were not available with them but

were kept with the service documents of petitioner No.2-Jagjivan

Lal. Learned counsel further submitted that the trial court vide

order dated 16.08.2022 has rejected the application under Order

VIII Rule 1A (3) in a perfunctory manner, solely on the ground of

delay and documents being photocopies of the original. Learned

counsel placed reliance on the judgments rendered by Hon'ble the

Supreme Court in the following cases to fortify the submissions

advanced:-

1. Levaku Pedda Reddamma & Ors. vs. Gottumukkala

Venkata Subbama & Anr. (SLP (C) No.7452/2022).

2. Sugandhi (dead) by Lrs. and Anr. vs. P. Rajkumar

rep. By his power agent Imam Oli (SLP (C)

No.16491/2019).

Per contra, learned counsel for the respondent-plaintiff

supported the impugned order dated 16.08.2022 passed by

learned trial court. It was submitted that the defendants are not

entitled as a matter of right to produce documents, particularly

when the same does not find mention in the list of documents

prepared under Order VIII Rule 1A (1); has not been produced

along with the written statement. Learned counsel relied on

judgments rendered by this Hon'ble Court at Jaipur in the

following cases:-

1. Shanti Devi vs. Ghanshyam & Ors. (S.B. Civil Writ

Petition No.6933/2022), decided on 11.05.2022.

2. Manoj Kumar vs. Gyan Chand & Ors. (S.B. Civil Writ

Petition No.9321/2022), decided on 04.07.2022.

[2023/RJJD/002976] (4 of 6) [CW-14159/2022]

3.Ramniwas & Ors. vs. Rameshwar & Ors. (S.B. Civil

Writ Petition No.13313/2011), decided on 11.12.2013.

Heard submissions advanced at bar and perused the material

available on record.

Hon'ble the Supreme Court while dealing with similar

eventuality, in the case of Levaku Pedda (supra) held as under:-

"We find that the trial Court as well as the High Court have gravely erred in law in not permitting the defendants to produce documents, the relevance of which can be examined by the trial Court on the basis of the evidence to be led, but to deprive a party to the suit not to file documents even if there is some delay will lead to denial of justice.

It is well settled that rules of procedure are hand- maid of justice and, therefore, even if there is some delay, the trial Court should have imposed some costs rather than to decline the production of the documents itself."

Similarly, Hon'ble the Supreme Court in the case of

Sugandhi (supra) held as under:-

"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)."

[2023/RJJD/002976] (5 of 6) [CW-14159/2022]

Having gone through Order VIII Rule 1A (3) of the Code of

Civil Procedure and above quoted precedent law, in the considered

opinion of this Court, the reasons given by the trial court in its

order dated 16.08.2022 (Annex.12) apart from delay is that the

documents sought to be produced do not find mention in the

written statement filed by the defendants and the same are only

notarised photocopy of the original document without bearing the

date of attestation is not sustainable in the eyes of law. Learned

trial court at this stage was not required to pronounce about

admissibility of the documents.

Order VIII Rule 1 A(3) of C.P.C. provides that the documents

which have not been produced along with the written statement

can be produced later on, only with the permission of the court.

Thus, afore-quoted rule provides a second opportunity to the

defendant to produce a document which ought to have been

produced in the court along with written statement, with the leave

of the court.

It is a settled law that while doing substantial justice, courts

should ensure that procedural violations do not adversely affect

the cause of the adversary party. Therefore, the court should take

a lenient view when an application is made for production of

documents under Order VIII Rule 1A (3).

In the present case, from the perusal of the application

dated 05.07.2022, it is apparent that sound reasons were

furnished justifying the delay for non production of documents

along with the written statement.

[2023/RJJD/002976] (6 of 6) [CW-14159/2022]

In view of this, court below ought to have accepted the

application dated 05.07.2022 filed by the defendants seeking

permission to produce the documents at a later stage.

The respondent-plaintiff shall be at liberty to raise all

objections regarding admissibility of the documents before trial

court.

In the result, impugned order dated 16.08.2022 passed by

passed by Additional District and Sessions Judge, Sagwara,

District-Dungarpur in Civil Original Case No. 04/2020 (Khemji vs.

Smt. Naval & Ors.) is set aside. The application dated 05.07.2022

filed under Order VIII Rule 1A (3) before Additional District and

Sessions Judge, Sagwara, District-Dungarpur is allowed.

No order as to costs.

(KULDEEP MATHUR),J Ravi Kh.

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