1 2026:HHC:35442 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 75 of 2022 Decided on: 19.8.2026 Ramesh Kumar … Petitioner Versus Nikki Devi & others …Respondents _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Petitioner: Mr. Naresh K. Sharma, Advocate. For the Respondents : Mr. Janesh Gupta, Advocate, for respondents No. 1, 2, 3(i) to 3(iv). Virender Singh, Judge (oral) The petitioner has filed the present petition, under Article 227 of the Constitution of India, against the order dated 7.1.2022, passed by the learned Civil Judge, Jhandutta, District Bilaspur, H.P. (hereafter referred to as ‘the learned Trial Court’), in C.M.A. No. 35- 6 of 2022, in Civil Suit No. 126-1 of 2014, titled as, ‘Ramesh Kumar versus Nikki Devi & others’. 2. By way of order dated 7.1.2022, the learned trial Court has dismissed the application, under Order 7 Rule 2 2026:HHC:35442 14 CPC, as well as, application under Section 65 of the Indian Evidence Act. 3. For the sake of convenience, parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to by the learned trial Court. 4. Brief facts, leading to filing the present petition may be summed up, as under: Plaintiff Ramesh Kumar has filed the suit for the declaration seeking the following reliefs: “i) Decree for the declaration to the effect that vide Jamabandi for the year 1984-85 Smt. Rodi Devi W/o Sh.Bagshi Ram who was the grand mother of the plaintiff was actually owner in possession of the total land measuring 8-15 bighas out of the total land measuring 56- 17 bighas comprised in Khasra Nos. 1920/1439, 1923/1440, 1442, 1478, 1676, 1682, 1684, 1721, 1730 Kita-9, Khata/Khatauni No. 62/7 situated in vill. Naghiar, Pargna Bachhretu, Tehsil Jhandutta, Distt. Bilaspur, H.P. and Smt. Rodi Devi alienated land measuring 7-7 bighas out of her share by Gift Deed on dtd. 20.5.1985 and also got registered vide No.160, Page No. 130, Book No. 1/161 on dtd. 20.5.1985 in the name of the the defendant No. 1 Nikki Devi who is wife of the defendant No.3 and grand mother of No.2. ii) Decree for further declaration that the plaintiff was also in joint ownership and possession of the land measuring 40- 14 bighas comprised in Khasra Nos. 1441, 1631, 1675, 1661, 1677, 1678 Kitta 6, Khata/Khatauni No. 63/72 situated in village Naghiar, Pargna Bachhretu, Tehsil Jhandutta, Distt. Bilaspur, H.P. and out of this land measuring 4-16 bighas comprised in Khasra No. 1677 is situated by the road side with 28 +29 +32 Karam in the length existing in the road side (Talai to Barsar Road) at vill. Naghiar and in Khasra No. 1678 1and measuring 00-11 bighas is having 57 karam in the length by the road side and previously one joint owner Smt. Kirpo Devi was in possession of this land abovesaid and after her death Sh. 3 2026:HHC:35442 Sukh Dev defendant No. 2 successor to Kirpo Devi is in possession and enjoyment of the same and the defendant No.3 Bhagat Ram who is one family member, despite of this fact the real defendants No.2 and 3 have no right by the road side in the aforesaid land. They have done this Act to deprive the right of the plaintiff who was the successor of Sh. Siri Ram. They want to capture/double benefits on the road side land. The defendant No. 2 was joint in possession of this land succeed by Smt. Kirpo Devi. Now the defendant No. 2 wants to capture the land more than the share of Kirpo Devi. The plaintiff has equal right of the land situated adjoining to the road. Iii) Decree for further declaration that on the basis of wrong entry the mutation No. 2004 Tarhakt dtd. 11.11.2013, the defendant No. 2 has relinquished his share in favour of the defendants No.12 to 16 at the back of the plaintiff, which is wrong, illegal, and is the result of fraud, mis-representation undue influence. iv Further declaration that the defendants No.2, 12 to 16 want to capture & the land more than their shares near the roadside on the basis of wrong entries and deprived the right of the plaintiff. v) Decree for further declaration that Smt. Rodi Devi grand mother of the plaintiff also executed a Will of her remaining land i.e. moveable and immoveable property in the name of the father of the plaintiff Sh. Siri Ram on dated 17.6.1985 and also got the same registered in the office of Sub- Registrar Ghumarwin on the same day and in this way after the death of Smt. Rodi Devi, the grand mother of the plaintiff, the father of the plaintiff Sh.Siri Rom became owner in possession of whole of landed property left by Smt. Rodi Devi including the land 1-8 bighas out of khewat No. 62 remained in the ownership and possession of Smt Rodi Devi after executing the Gift Deed of land measuring 7-7 bighas in the name of the defendant No.1 Nikki Devi out of her total land measuring 8-15 bighas out of land measuring 56-17 bighas comprised in Khasra Nos. Kitta-9, situated in vill. Naghiar, Pargna Bachhretu, Tehsil Jhandutta, Distt. Bilaspur, HP. and the plaintiff's father Sh. Siri Ram being legal Representative by virtue of her Registered Will, dt. 17.6.1985 and this fact is not disputed, rather mutation of the property of Rodi Devi was also entered and attested by virtue of the same will dtd. 17.6.1985 of Rodi Devi of her landed property in other Khewats and in this way the plaintiff's father Sh. Siri Ram became owner in possession of the whole of the landed property of late Smt. Rodi Devi including the land measuring 1-8 bighas out of this land, but vide the mutation No. 1831 of vill. Naghiar, Pangna Bachhretu, Tehsil Jhandutte, Distt. Bilaspur, H.P. land measuring 8-10 bighas is sanctioned in the name of the defendant in place of her actual land measuring 7-7 bighas came to her by virtue of Gift Deed, in the name of Vikash 4 2026:HHC:35442 s/o Sh. Gian Chand, Parkash Chand s/o Sh Kanshi Ram, Yogi alias Yog Raj S/o Sh.Kanshi Ram despite this fact in the knowledge and proved by the papers tendered by the plaintiff's father Sh.Siri Ram before the Ld. A.C. IInd Grade, in this mutation land measuring 8-10 bighas is wrongly and illegally attested by the Ld. A. C. IInd Grade Jhandutta on dtd. 21.2.2012 vide which the land measuring 1-8 bighas is wrongly and illegally attested in the name of the defendant No. 1 Nikki Devi which is to be attested in the name of the father of the plaintiff Sh. Siri Ram by virtue of Will executed on 17.6.1985 by Rodi Devi, she got executed and also got registered in the office of Sub-Registrar vi) Decree for further declaration that the plaintiff is owner in possession of the land measuring 1-8 bighas out of total land measuring 56-17 bighas comprised in Khasra Nos. Kitta-9, by virtue of registered will executed by Sh.Siri Ram s/o Sh. Bagshi Ram R/o vill. Naghiar (Marura), Pargna Bachhretu, Tehsil Jhandutta, Distt. Bilaspur, H.P. in the name of the plaintiff on 21.7.1989 and the same will Registered before the Office of Sub-Registrar Chumarwin on dtd. 21.7.1989, vide No. 333, Page No. 70, Book No. 3/116 and after the death of Sh.Siri Ram, the mutation No. 2003 was attested on dtd.11.11.2013 in favour of the plaintiff. vii) Decree for the Permanent injunction restraining the real respondents from interfering in any manner whatsoever by changing the nature, digging any part, cutting the Khair trees and grass etc. raising any construction and occupying the valuable and specific portion of the land and also from aliena- ting , mortgaging any part of the land measuring 56- 17 bighas comprised in Khasra Nos. Kitta-9, Khata/Khatauni No. 62/71 and land measuring 40-14 bigha's comprised in Khasra Nos. Kitta- 6, Khata/ Khatauni No. 63/72 situated in village Naghiar, Pargna Bachhretu, Tehsil Jhandutta, Distt. Bilaspur, H.P. either personally or through their agents, and labourers etc. till the same land is not finally partitioned between all the -sharers by the ∞ Revenue Authorities. In the alternative, decree for joint possession by demolishing the construction, if any, raised by the defendants forcibly over any valuable and specific Part of the suit land during the pendency of the suit, be passed in favour of the plaintiff and against the defend ants. ix) Any other or further relief which this Hon'ble Court deems fit may also kindly be passed in favour of the plaintiff and against the defendants with costs in the interest of justice and justice be done.” 5. The contents of the plaint were contested by the defendants, by filing written statement. Thereafter, the 5 2026:HHC:35442 learned trial Court has framed the following issues, vide order dated 23.4.2019: “1.Whether the plaintiff is entitled to decree for declaration to the effect that Smt. Rodi Devi (grand- mother of the plaintiff), is owner in possession of land measuring 8-15 bighas, out of the total land measuring 56-17 bighas, as prayed for?..OPP 2. Whether the plaintiff is entitled to decree for declaration that the plaintiff is joint ownership and possession of land measuring 40-14 bighas, as prayed for?..OPP. 3. Whether the plaintiff is entitled to decree for declaration that the mutation No.2004, Tar Hakok, dated 11.11.2013 is wrong, illegal, null and void, as prayed for? ..OPP 4. Whether the mutation land measuring 8-10 bighas is wrongly and illegally attested by the Ld A.C. IInd Grade, Jhandutta, on dated 21.02.2012, as prayed for?..OPP 5. If issue No.4 is decided in affirmative, whether the land measuring 1-8 Bighas, is to be attested in favour of father of the plaintiff Sh. Siri Ram, by virtue of registered Will executed on 17,06.1985, by Rodi Devi, as prayed for?..OPP 6. Whether the plaintiff is entitled to decree for declaration that the plaintiff is owner in possession of the land measuring 1-8 bighas out of total land measuring 56-17 bighas, by virtue of registered Will executed by Siri Ram, in the name of plaintiff on 21.07.1989, as prayed for?..OPP 7. Whether the plaintiff is entitled for decree of permanent prohibitory, as prayed for? ....OPP. 8. Whether in alternative, the plaintiff is entitled for decree of joint possession, if defendants during the pendency of the suit forcibly raise construction over the suit land, as alleged?,,OPP. 9. Whether the present suit is not maintainable, as alleged? ....OPDS. 10. Whether the plaintiff has no cause of action to file the present suit, as alleged?...... OPDS. 11. Whether plaintiff is estopped by his own acts and conduct from filing the present suit, as alleged? ...OPDS. 12. Whether the present suit is not valued properly for the purpose of Court fee and jurisdiction, as alleged? ..OPDS. 13. Whether the present suit is bad for non-joinder of necessary parties, as alleged? ..OPDs 6 2026:HHC:35442 14. Whether the plaintiffs have not come to the Court with clean hands, as alleged?..OPD. 15. Whether the suit of the plaintiff is barred by resjudicata, as alleged?..OPDS. 16. Whether Smt. Rodi Devi has not executed any Will on dated 17.06.1985, in favour of the father of the plaintiff, as alleged? ..OPDs. 17. Relief. 6 Thereafter, on 26.11.2021, plaintiff has filed applications, under Order 7 Rule 14 CPC, as well as, under Section 65 of the Indian Evidence Act. 7. By way of application under Order 7 Rule 14 CPC, the plaintiff sought indulgence of the learned trial Court to place on record the certified copy of Will dated 17.6.1985, on the ground, that the counsel representing him, checked the Court file to examine the witnesses, then, it has been found that the copy of Will could not be produced on record, at the time of filing of the documents. As such, a prayer has been made to permit the plaintiff to produce the certified copy of Will dated 17.6.1985. 8. The said application has been contested by the defendants, on the ground, that the application is not maintainable; the application has been filed just to linger on the matter, as the Will dated 17.6.1985 was very 7 2026:HHC:35442 much in the knowledge of the plaintiff, from the very beginning of the case. 9. The application has further been contested on the ground that the matter has been decided by this Court, on 8.1.2010, in RSA No. 271 of 1997, titled as, ‘Bhagat Ram & anr. versus Brahma Nand and others’. As such, right, title and interest of the plaintiff, in the suit land, have been questioned. 10. Apart from this, an application under Section 65 of the Indian Evidence Act has also been filed to prove the copy of the Will, dated 17.6.1985, by leading secondary evidence, on the ground, that the Will was produced by the father of the plaintiff, before the revenue authorities, for attestation of the mutation, but, after some time, father of the plaintiff expired and plaintiff tried to search for the Will, but, in vain. 11. The aforesaid application has also been contested, on the ground, that the same is not maintainable; the Will in question has not been tendered, neither the same can be tendered. 8 2026:HHC:35442 12. Relying upon the decision of this Court in RSA No. 271 of 1999, titled as, ‘Bhagat Ram & another versus Brahma Nand & others’, a prayer has been made that the application be dismissed. 13. The learned trial Court has considered both the above said applications, vide order dated 7.1.2022 and dismissed the same. 14. Feeling aggrieved from the said order, the plaintiff is before this Court. 15. In view of given facts, the material question, which arises for determination, before this Court, is about the fact whether the learned trial Court has failed to exercise the jurisdiction, vested in it, as procedural law is meant for advancement of justice and not to hamper the same. 16. An opportunity ought to have been afforded to the parties to prove their cases, by leading evidence, as per law. 17. In this case, the issues have been framed, and the plaintiff has relied upon the Will dated 17.6.1985 in the plaint. He has pleaded the said fact in para-8 of the 9 2026:HHC:35442 plaint. The said Will, according to the plaintiff, was executed by Smt. Rodi Devi, grand-mother of the plaintiff, in favour of his father Siri Ram. 18. It is not the case of the defendants that the Will, dated 17.6.1985 has been introduced by way of application, under Order 7 Rule 14 CPC, by the plaintiff, for the first time. The very basis of the suit is Will dated 17.6.1985, and the learned trial Court has also framed the issues, on the basis of said fact. 19. The provisions of Order 7 Rule 14 CPC, are reproduced as under: “Order VII …. 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 2026:HHC:35442 20. In view of the above, learned counsel for the defendants could not satisfy the judicial conscience of this Court as to how, the order passed by the learned trial Court, is sustainable in the eyes of law, as the case is at the initial stage. The document, i.e. the Will, dated 17.6.1985, has been relied upon, by the plaintiff, from the very inception of the lis, and once, he has taken the plea that original of the Will has been lost, as the same was submitted to the revenue authorities by his father, and after the demise of his father, plaintiff, despite all the efforts made by him, could not lay his hands on the original Will, he has sought indulgence of the learned trial Court to permit him to prove the Will, by way of secondary evidence. In such situation, this Court is of the view that every litigant ought to be afforded an opportunity, for getting the issue decided, involved in the lis, without the same being scuttled on mere technicalities, such as late production of the documents, unless the technicalities are so pre-dominant that they overshadow the merits of the case. 11 2026:HHC:35442 21. The true import of the procedural law is to afford the parties to give ample and effective opportunities to prove their case. So far as the defence, which has been taken by the defendants, in their reply, qua dismissal of the Regular Second Appeal, by this Court,is concerned, they may put the said defence to the witnesses of the plaintiff, or may prove or probabilize the same by leading evidence, but, on the basis of said decision in RSA No. 271 of 1997, the plaintiff cannot be precluded from producing the documents and proving the same, by way of leading secondary evidence. 22. Considering all these facts, this Court is of the view that the learned trial Court has failed to exercise the jurisdiction, vested in it. As such, the order passed by the learned trial Court, does not sustain judicial scrutiny of this Court. 23. Consequently, the present petition is allowed, and the order dated 7.1.2022, passed by the learned Trial Court is set aside. Both the applications, under Order 7 Rule 14 CPC, as well as, under Section 65 of the Indian Evidence Act, are allowed. 12 2026:HHC:35442 24. Parties to the lis, through their respective counsel, are directed to appear before the learned trial Court on 2.9.2026, at 10:00 a.m. 25. Any of the observations, made herein above, 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 petition. 26. Record be sent back. (Virender Singh) 19.8.2026 Judge Kalpana