1 2026:HHC:34121 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 137 of 2026 Decided on: 11.8.2026 Om Prakash (deceased) through LRs … Petitioners Versus Sonia Verma …Respondent _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Petitioners: Mr. Ravi Thakur, Advocate. For the Respondents : Mr. Karan Singh Kanwar, Senior Advocate assisted by Mr. Manish Kumar, Advocate. Virender Singh, Judge (oral) The petitioners have filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 3.1.2026, passed by the Court of learned Senior Civil Judge, Nahan, District Sirmaur, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Suit No. 84/1 of 2018, titled as, ‘Smt. Sonia Verma versus Om Prakash’ (deceased) through LRs, 2 2026:HHC:34121 whereby the application filed by the petitioners, under Order 8 Rule 1 & 2 CPC, has been dismissed. 2. For the sake of convenience, parties to the lis are referred to, in the same manner, in which, they were referred to, by the learned trial Court. 3. Brief facts leading to filing of the present petition, as borne out from the record, may be summed up as under: Plaintiff Sonia Verma has filed the suit for recovery of Rs. 9,60,000/- with future interest @ 12% per annum, till its payment, against the defendant, on the ground that the defendant is co-owner in possession of land comprised in Khata Khatauni No. 5/9 & 10 Khasra No. 1953 to 1955 and 1945 kitte 4 measuring 190.47 Sq. Mtr. to the extent of 2/16th share which comes to land measuring 23.80 Sq. Mtr. situated at Mohal Nahan, Distt Sirmaur, H.P. as per copy of Jamabandi for the year 2013-14. 3.1 It is the case of the plaintiff that on 18-11-2016, the defendant entered into an agreement of sale with the plaintiff for the sale of his land alongwith constructed 3 2026:HHC:34121 building thereon, constructed on the land comprised in Khata Khatauni No. 5/10 Khasra No. 1945 measuring 17.36 Sq. Mtr. situated at Muhal Nahan, Tehsil Nahan Distt Sirmaur, H.P., for a total sale consideration of Rs. 50,00,000/- (Rs. Fifty Lacs only). 3.2 At the time of execution of the agreement to sell, plaintiff paid an amount of Rs. 20,00,000/- (through cheque bearing No. 000003 amounting to Rs. 8,00,000/- and cheque bearing no. 000014 amounting to Rs. 12,00,000/- each, dated 18-11-2016, drawn at HDFC Bank, Nahan Branch, with certain conditions, required to be performed by the defendant. 3.3 As per these conditions, defendant was required to redeem the subject matter of the sale agreement i.e. the property, which was mortgaged by the defendant with United Commercial Bank, Nahan. It has further been agreed that the defendant will obtain the N.O.C. from the bank with respect to mortgaged property and will also help in getting the loan sanctioned, in favour of the purchaser/plaintiff, within three months of execution of the above mentioned agreement. It was also 4 2026:HHC:34121 agreed between the parties that in case, the defendant fails to fulfill the aforementioned conditions within a stipulated period, then amount of Rs. 20,00,000/- shall be returned to the plaintiff and the agreement to sell in question will become inoperative, null & void. 3.4 It is the further case of the plaintiff that the defendant has assured to get the sale deed registered in favour of the plaintiff and to cooperate the plaintiff in getting the sale deed registered, in her favour, with respect to the subject matter of the agreement to sell. The defendant was required to obtain N.O.C. from his bank on or before 17-02-2017 and thereafter, get the sale deed registered in favour of the plaintiff, on the agreed sale consideration of Rs. 50,00,000/-, after deducting the part payment received by the defendant. 3.5 It is the further case of the plaintiff that the defendant miserably failed to perform his part of contract, as well as, to keep the assurance given by him, to the plaintiff. The defendant also failed to perform his part of contract, as such, the plaintiff's husband approached the defendant and asked the defendant, not 5 2026:HHC:34121 to encash the cheque bearing No. 000014 of H.D.F.C. Bank Nahan, amounting to Rs. 12,00,000/- 3.6 It is the further case of the plaintiff that he also came to know about the defect in the title of the property to be sold, as such, the plaintiff herself and also through her husband asked the defendant not to encash the cheque of Rs. 9,00,000/- given to the defendant, towards the part payment of the balance sale consideration. 3.7 According to the further case of the plaintiff, the defendant was aware of the fact that the plaintiff is a non-agriculturist and without getting the permission from the H.P State Govt. to purchase the land in question along with building thereon, no registration of sale of the immovable property could be done in her favour, but, before she could take such permission from the State of Himachal Pradesh Govt., the defendant, on the frivolous grounds, got a notice dated 21-03-2017 served upon the plaintiff through his counsel Sh. V.C. Jain, Advocate. 6 2026:HHC:34121 3.8 It is further pleaded that the defendant had no intention to perform his part of contract, at any point of time, but the defendant, in order to liquidate his loan from his bank UCO Bank Nahan, entered into agreement of sale dated 18-11-2016 with the plaintiff, re-asserting the fact that the agreement of sale dated 18-11-2016 was not legally enforceable for reasons stated above, as such, the defendant is liable to pay back amount of Rs. 9,60,000/- with future interest @12% per annum. Instead of paying the above mentioned amount to the plaintiff, the defendant illegally cancelled and revoked the agreement dated 18-11-2016, without any rhyme and reason and failed to pay back the amount of Rs. 8,00,000/- with interest to the plaintiff and illegally claimed/demanded Rs. 7,00,000/-(seven lacs only) as damages, which is not tenable in the eyes of law. 3.9. On the basis of above facts, plaintiff has sought recovery of Rs. 9,60,000/- @ 12% per annum, till its payment. 4. When, put to notice, the suit has been contested by the defendant, by taking preliminary objections, qua 7 2026:HHC:34121 the maintainability of the suit, the plaintiff has no cause of action; plaintiff has not approached the Court with clean hands; and the suit of the plaintiff is liable to be dismissed with costs. 4.1 On merits, suit has been contested on the ground that the agreement to sell was executed between the parties, however, the fact regarding the payment of a sum of Rs.20,00,000/- , on 18.11.2016, is stated to be false. According to the defendant, the plaintiff, on 18.11.2016, had issued two cheques bearing No.000003 amounting to Rs.8,00,000/-, No.000014 amounting to Rs. 12,00,000/- of HDFC Bank Branch at Nahan. The defendant, on the next day, presented both the cheques for payment, but, the payment of both the cheques could not be made as the plaintiff was not having such amount in her account and despite repeated request of the defendant the cheque amounting to Rs.8,00,000/- was encashed on 29.12.2016 and the other cheque amounting to Rs.12,00,000/- could not be encashed, as the same was dishonoured having no amount in the account of the plaintiff. From the time of the agreement 8 2026:HHC:34121 i.e. 18.11.2016, the plaintiff was not in a position to perform her part of contract, having no capacity to pay the said amount, so there was no question of readiness and willingness of the plaintiff. 4.2 It is the further case of the defendant that he had obtained the necessary clearance certificate from the Bank, as the property stands redeemed as per certificate issued by the Bank dated 14.3.2017. After getting clearance certificate of the loan on 14.3.2017, the defendant, time and again, requested the plaintiff to make the balance amount of sale consideration of Rs.42,00,000/- and to get the sale deed executed and registered in her favour. The plaintiff was also requested by the defendant that on 21.3.2017, the plaintiff would be coming to the office of Sub Registrar, Nahan along with amount of Rs.42,00,000/-, so that the sale deed could be executed and registered, in favour of the plaintiff. The defendant remained present in the office of Sub Registrar, Nahan from 10:00 . . to 4:30 P.M. on Α Μ 21.3.2017, but the plaintiff did not turn up with the money and necessary papers. The plaintiff deliberately 9 2026:HHC:34121 avoided to pay the balance amount of Rs.42,00,000/- as she was having no capacity for making balance payment. 4.3 It is the further case of the defendant that on account of the breach of agreement to sell, defendant had to suffer damages to the tune of Rs. 15,00,000/-, which is to be recovered from the plaintiff. The earnest money of Rs.8,00,000/- is stated to have been forfeited and the plaintiff is stated to be liable to pay a sum of Rs.7,00,000/- more, as damages, to the defendant. In this regard, the defendant on 21.3.2017, issued a registered notice to the plaintiff, informing her that the agreement to sell dated 18.11.2016 is cancelled and revoked by the defendant, earnest money stand forfeited and to pay a sum of Rs.7,00,000/- as damages to the defendant. The notice was duly received by the plaintiff and a reply, contrary to the actual facts, was given by the plaintiff. 4.4 Other contents of the plaint have been controverted. Hence, a prayer has been made to dismiss the suit. 10 2026:HHC:34121 5. Plaintiff filed replication, denying the preliminary objections, as well as, contents of the written statement, by virtue of which, the suit has been contested. 5.1 In the replication, a stand has been taken by the plaintiff that the cheque bearing No. 000003 amounting to Rupees 8,00,000/- was presented for encashment by the defendant, only on 29.12.2016 and earlier to such date, no cheque in question was presented before the bank, as alleged, in the written statement. The cheque of Rupees 12,00,000/- bearing No. 000014 was never presented by the defendant in the bank, as the defendant was aware of the fact that he has failed to perform his part of the contract, as per clause No. 3 of the agreement to sell dated 18.11.2016. 5.2 According to the further stand of the plaintiff, the subject matter of agreement to sell stood mortgaged by the defendant with the UCO Bank, Nahan and the same was redeemed from the said bank, only on 23.9.2017, as reflected in the copy of jamabandi, for the year 2013-14. It is the further case of the plaintiff that the defendant, without caring to perform his part of the contract, vide 11 2026:HHC:34121 registered gift deed bearing No. 786/2017, gifted the said land/ shop to his daughter Rajni Saini on 29.9.2017. 5.3 Hence, a prayer has been made to decree the suit of the plaintiff. 6. From the pleadings of the parties, the following issues were framed, on 13.5.2019/22.6.2022: 1. Whether the plaintiff had paid 8,00,000/- through a cheque under the agreement dated 18.11.2016, as a part payment and upon failure of the defendant to perform his part of the contract, asked the defendant not to encash the other cheque amounting Rs. 12,00,000/-. as alleged?..OPP 2. Whether defendant failed to obtain N.O.C. from United Commercial Bank, Nahan after redeeming the suit land? ...OPP 3. Whether plaintiff was ready and willing to perform her part of the contract but defendant failed to perform his part of the contract? ...OPP 4. Whether plaintiff is entitled to recovery from defendant an amount of 9,60,000/- alongwith interest @ 12% per annum, as prayed for?...OPP 4(A) Whether the defendant has got the property redeemed from the bank as per certificate issued by the bank, dated 14.3.2017, as alleged? OPD 5. Whether suit of the plaintiff is not maintainable? OPD 6. Whether the plaintiff has no approached the Court with true facts? OPD 7. Relief 12 2026:HHC:34121 7. Thereafter, the parties were directed to adduce the evidence. The plaintiff has closed her evidence on 9.9.2025. Thereafter, on 24.11.2025, an application under Order 8 Rules 1 and 2 CPC read with Section 151 CPC was filed on the ground that on 18.11.2016, the plaintiff issued two cheques bearing No.000003 amounting to Rs.8,00,000/-, 000014 amounting to Rs.12,00,000/- drawn at HDFC Bank, Branch at Nahan. The defendant, on the next day, presented both the cheques, for payment, but, the payment of both the cheques could not be made, as the plaintiff was not having sufficient amount in her account and despite repeated request, the cheque of Rs.8,00,000/- was encashed and the same was dishonored, having no amount, in the account of the plaintiff. 8. In addition to this, the defendants have also obtained loan clearance certificate on 14.3.2017 and the plaintiff was also requested to appear before the Sub Registrar on 21.3.2017, alongwith the balance sale consideration of Rs.42,00,000/-. The predecessor of defendants remained present in the office of Sub 13 2026:HHC:34121 Registrar, Nahan from 10.00 AM to 4.30 PM, on 21.3.2017. In this regard, copy of Original Affidavit has also been annexed with the application. 9. It is the further case of the plaintiff that the documents regarding deposit of cheque in the HDFC Bank, No Objection Certificate dated 14.3.2017, issued by UCO Bank Nahan, the record of original affidavit i.e. affidavit of Sh. Om Parkash, executed on 21.3.2017, regarding the execution and registration of sale deed, showing the presence of the then defendant Om Parkash, duly attested by the Executive Magistrate/Tehsildar Nahan, could not be produced earlier inadvertently and despite due diligence and some documents, are based on subsequent events, after filing of written statement. 10. In addition to this, the CCTV footage, depicting the plaintiff, moving with her daughter, is also sought to be produced. The said CCTV footage, is stated to be necessary for the just adjudication of the case, as the husband of the plaintiff has deposed, on oath, falsely 14 2026:HHC:34121 before the Court that his wife is completely bed ridden and not in a position to move. 11. On the basis of above facts, a prayer has been made to allow the aforesaid application. 12. The said application has been contested by the plaintiff by taking preliminary objections that the application is not maintainable, as the documents have not been relied upon by the defendant, when the written statement was filed, despite the fact that defendant was in possession of the above documents. The other contents of the application have also been controverted by re-asserting the fact that defendant himself has failed to perform his part of the contract. 13. The application has been considered by the learned trial Court, and the same has been dismissed, on 3.1.2026. 14. These findings have been assailed by the defendant, before this Court, by way of present petition, which has been filed under Article 227 of the Constitution of India, on the ground that the documents sought to be produced are public documents of 15 2026:HHC:34121 unimpeachable character and these documents directly contradict the plaintiff’s claim of financial capacity and demonstrate a lack of readiness and willingness of the plaintiff to execute the agreement dated 18.11.2016, which is a mandatory pre-requisite for seeking Specific Performance under Section 16(c) of the Specific Relief Act. 15. On the basis of above facts, Mr. Ravi Thakur, Advocate appearing for the petitioners/defendants has prayed that the present petition may kindly be allowed by setting aside the order passed by the learned trial Court, on 3.1.2026. 16. Per contra, Mr. Karan Singh Kanwar, Senior Advocate, assisted by Mr. Manish Kumar, Advocate, appearing for the paintiff has opposed the said prayer and supported the order, passed by the learned trial Court and stated that the application for production of the documents, has been filed, at the belated stage, when, the lis was pending for DWs. 17. The prayer made by learned counsel for the petitioners has also been opposed on the ground that 16 2026:HHC:34121 these documents were already in possession of the defendants and the same should have been filed, alongwith the written statement, and non-production of the documents, at the earlier stage, dis-entitles the defendants from relying upon/producing the said documents. 18. As such, supporting the order, passed by the learned trial Court, a prayer has been made to dismiss the present petition. 19. In order to buttress his contention, Mr. Karan Singh Kanwar, Senior Advocate, assisted by Mr. Manish Kumar, Advocate, has also relied upon the decision of Hon’ble Supreme Court in Bagai Construction vs. Gupta Building Material Store, reported in 2013 (14) SCC 1. 20. The application moved by the defendant under Order 8 Rules 1 and 2 CPC has been dismissed by the learned trial Court. The provisions of Order 8 Rules 1 and 2 CPC, are reproduced as under: Order VIII -Written statement, set-off and counter-claim “1. Written Statement.—The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: 17 2026:HHC:34121 Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. “Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to berecorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.” 1A. 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 counter- claim, 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. 18 2026:HHC:34121 (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.] 2. New facts must be specially pleaded.—The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.” 21. As per the aforesaid provisions, if the documents have not been produced, at the time of filing the written statement, the same can only be taken on record with the permission of the Court. 22. The procedural law are meant for advancement of justice and not to hamper the stream of justice. Considering the low legal literacy of the Indian masses, to the considered opinion of this Court, non-production of the aforesaid documents, at the time of filing the 19 2026:HHC:34121 written statement, cannot be said to be fatal for the case of the defendants. When, the legislature, itself has given window to permit the defendant to produce the document, that too, with the permission of the Court, the said window cannot be shut, only on the ground that the application has been filed, at the belated stage. 23. Even for the sake of arguments, the original defendant can be said to be negligent, even then, he cannot be prevented from producing the documents, as the matter should be decided on merits, after giving full opportunities to the parties to adduce their evidence/tender documents. The past conduct of the party, regarding default, in producing the document, cannot be taken into consideration, while interpreting the procedural law. Every litigant ought to be afforded an opportunity of getting the issue decided, so that the issue involved, could be decided on merit, without the same being scuttled, on mere technicalities, i.e. non- production of the document(s), at the earlier stage, unless the default is so pre-dominant that the same overshadows the merits of the case. When the 20 2026:HHC:34121 defendants would produce these documents and rely upon the same while leading evidence, the plaintiff will get opportunity to cross-examine this witness to create the doubt in the veracity of this document. 24. Moreover, by producing the documents, the defendant is not going to change the nature of his defence, as he has already taken this defence, based upon these documents, in his written statement. 25. So far as the case law, which has been relied upon by learned counsel for the plaintiff, in Bagai Construction’s case is concerned, with due respect to the law laid down, the same is not applicable to the facts and circumstances of the present case, as these documents have been relied upon by the defendant, in his written statement/defence, and evidence of the defendant has yet not been closed, as such, no benefit can be derived, on the basis of aforesaid judgment. 26. Considering the factual position, as discussed above, the order passed by the learned trial Court, does not sustain in the judicial scrutiny of this Court, and the same is set aside. Consequently, the application under 21 2026:HHC:34121 Order 8 Rules 1 and 2 CPC is partly allowed, by permitting the defendant to produce the documents, i.e. original affidavit, dated 21.3.2017, copy of Jamabandi for the year 2020-2021 of Mohal Rajinder Nagar, pertaining to the purchase of property by the plaintiff, NOC of UCO Bank, dated 14.3.2017, Counter files of HDFC Bank, dated 21.11.2016, regarding deposits of cheques. However, prayer to permit the defendant to place on record the CCTV footage, is not liable to be accepted, and the same is accordingly declined. Accordingly, the present petition is allowed to the extent, as stated above, that too, subject to costs of Rs. 10,000/- to be paid to the plaintiff. 27. Parties, through their counsel, are directed to appear before the learned trial Court on 21.8.2026, at 10:00 a.m. 28. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application. 22 2026:HHC:34121 29. The pending application(s), if any, are also disposed of. 30. Record be sent back. (Virender Singh) 11.8.2026 Judge Kalpana