IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 465 of 2019 Decided on: 13.10.2025 ____________________________________________________ Shamsher Masih ……….. petitioner Versus Menu Parkash ……….respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. Aman Sood, Advocate. For the respondent : Mr. Raman Jamalta, Advocate. ____________________________________________________ Bipin Chander Negi, Judge (oral) By way of the impugned judgment dated 3.8.2019, two applications filed by the present respondent/defendant have been allowed. One under Order 8 Rule 1-A (3) read with Section 151 CPC and another application under Order 18 Rule 17 read with Section 151 CPC. 2. In the application filed under Order 18 Rule 17 CPC for recalling of PWs 5, 6 & 7 for further cross examination, it has been averred by the respondent/defendant that on the said date i.e. 14.09.2017, though she had attended the Court, however, she was not fully prepared as she was under mental stress on account of her husband undergoing treatment at PGI. Further on account of the aforesaid she had only come to Shimla on 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 14.09.2017, when the matter was fixed for cross examination of PWs 5, 6 & 7. 3. In the response filed, it is categorically submitted that the application is not bonafide and it been filed with the sole intent of causing delaying in the matter. It is further submitted that alongwith the application no material has been placed on record to substantiate the plea that her husband was undergoing treatment at PGI. It is further categorically submitted that the affidavit filed as examination-in-chief of PWs 4, 5 & 6 had been supplied much in advance i.e. prior to 14.09.2017, thereby providing sufficient time to the respondent/defendant to prepare the case for cross examining PWs 5, 6 & 7 on 14.09.2017. On 14.09.2017, PWs 5 to 7 had been cross examined by the Legal Aid Counsel appearing on behalf of the respondent/defendant. 4. While dealing with the application filed under Order 18 Rule 17 CPC, the trial Court has placed reliance on a judgment of the Hon’ble Apex Court in K.K. Velusamy v. N. Palanisamy (2011) 11 SCC 275 . Reliance whereof has been placed on para 11 of the said judgment, wherein, it has been categorically held that in the absence of the any specific provision, reliance can be placed upon Section 151 of the CPC i.e. inherent power of the Court to doing the needful. However, what the trial Court has failed to take notice is para 19 of the said judgment, which lays down the parameters for considering an 3 application under Order 18 Rule 17 of the CPC in the absence of the said specific provision. The relevant paragraph of K. K. Velusamy’s case reads as follow:- “19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for d the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non- production earlier was-for-valid and sufficient reasons, the court may exercise its discretion to recall the witnesses e or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.” 5. Applying the aforesaid parameters, it would be evident that no material has been placed on record by the respondent/defendant to show that the husband of the respondent was undergoing treatment at PGI and, as a consequence thereof, as alleged in the application, respondent/defendant was under mental stress/tension. Other than the aforesaid, it would be relevant to notice that the Examination-in-Chief of PWs 5, 6 & 7 by way of an affidavit had been supplied much prior to 14.09.2017, on which date, they had been cross examined. Hence, from the aforesaid, it is evident that there exists no sufficient reasons for the Court to exercise its discretion to recall witnesses i.e. PWs 5, 6 & 7 for further cross 4 examination. The present application appears to be more a ploy to protract the litigation in the case at hand. 6. In view thereof, since the trial Court has failed to exercise jurisdiction in terms of parameters laid down in K. K. Velusamy’s case (para 19 thereof), the order allowing the application under Order 18 Rule 17 of the CPC as passed by the trial Court vide impugned order dated 3.8.2019 is set aside to that extent. 7. Insofar as the application filed under Order 8 Rule 1- A (3) read with Section 151 of the CPC filed by the respondent/defendant is concerned, suffice it to state that the suit in the case at hand is one from malicious prosecution filed by the present petitioner/plaintiff. The two documents which are sought to be brought on record by the respondent/defendant are being detailed hereinabove:- a) Order dated 10.1.2007 of SDM (U) Shimla H.P. b) Minutes of meetings of Constitution of Church of North India wherein at page No. 54, a specific complaint against the non-applicant/plaintiff involving in Grave Financial Misconduct, Breach of Trust & Mis-management dealt with.. 8. From the pleadings, it is evident that the suit in the case at hand was filed on 2.3.2011. Written statement on behalf of the respondent/defendant was filed on 4th January, 2012. The application for placing on record the aforesaid documents under Order 8 Rule 1-A (3) read with Section 151 CPC was filed on 5 18.12.2017 i.e. when the witnesses on behalf of the petitioner/plaintiff were being examined. Order 8 Rule 1–A (3) read with Section 151 CPC reads as under:- 1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him. (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counterclaim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.”. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in court by the defendant under this Rule, but, is not so produced 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 documents- (a) produced for the cross-examination of the plaintiff's witnesses, or (b) handed over to a witness merely to refresh his memory." 9. Sub-rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement. He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the 6 defendant at the hearing of the suit. However, this will not apply to a document produced for cross-examination of the plaintiff's witnesses or handed over to a witness merely to refresh his e memory. Sub-rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule 1(1) of Order 13 CPC again makes it mandatory for the parties to produce their original documents before settlement of issues. 10. Sub-rule (3), as quoted above, provides a second opportunity to the f defendant to produce the documents which ought to have been produced in the court along with 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 straitjacket formula, this leave can be granted by the court on a good cause being shown by the defendant. 11. From a perusal of the documents sought to be brought on record i.e. order dated 10.1.2007 passed by the Sub Divisional Magistrate, Shimla, it is evident that a copy of the same was available with the respondent/defendant on 8.3.2007 (fact itself evident from the stamp of the copying agency which supplied the document). Even the availability of the minutes of the meeting sought to be placed on record is admitted by the respondent/defendant. Hence, the availability of the said documents at the time of filing of the written statement on 7 4.1.2012 is not in doubt. The only reason cited for the belated production of the same in December, 2017 is inadvertence. Lack of diligence in placing the documents sought to be placed on record at this stage is writ large. 12. Other than the aforesaid, the suit filed in the case at hand by the present petitioner/plaintiff is one for malicious prosecution. It is averred in the application that the respondent/plaintiff had made a complaint with respect to an incident dated 16.7.2006, wherein it has been alleged that the present petitioner/plaintiff had intended to put the house of the respondent/defendant on fire. Proceedings qua the same had commenced before the Sub Divisional Magistrate (Urban Shimla) and the same had been dismissed on 10.1.2007. It is this order which is sought to be placed on record. 13. From a perusal of the order dated 10.1.2007, it is evident that the compliant had been made by the respondent/defendant with respect to some broken furniture and wooden pieces which had been used to block the path of the kitchen of the present respondent/plaintiff by the present petitioner/plaintiff. It is in this context that a complaint under Section 133 Cr.PC had been filed by the present petitioner/plaintiff. The said proceedings was closed vide order dated 10.1.2007. 8 14. Other than the aforesaid, insofar as the minutes of meeting of the Church of North India is sought to be brought on record, the same pertains to a complaint made against the present petitioner/plaintiff qua alleged financial misappropriations. Qua the same, in the reply, it has been stated that based on the reply submitted by the petitioner/plaintiff alleged grave financial misconduct, proceedings had been closed. 15. In a suit filed for malicious prosecution filed by the present petitioner/plaintiff, all that has to be proved by the plaintiff herein i.e. present petitioner would be the following:- (i) That the plaintiff was prosecuted by the defendant. (2) That the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating. (3) that the prosecution was instituted against him without any reasonable or probable cause. (4) That it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect (See AIR 26 PC 46) 16. In my considered view, there is no relevance of these two documents in a suit filed for malicious prosecution instituted by the present petitioner/plaintiff. The reason cited by the trial Court i.e. previous conduct to assail the reputation or character of the petitioner/plaintiff is of no relevance in a suit for malicious prosecution. 9 17. In view of the aforesaid, impugned order dated 2.8.2019 is quashed and set aside. Parties are directed to appear before the trial Court on 11.11.2025. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 13th October, 2025 tarun