# Akhtar Khan v. D.J., Pratapgarh & Ors

- **Citation:** (2024) 9 ILRA 939
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-23
- **Case number:** Matter Under Article 227 No. 3801 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhtar-khan-v-d-j-pratapgarh-ors-52547
- **Pages:** 14

## Headnote

Civil Law - Civil Procedure Code- Order XI
Rules 12 and 14 -Application under Order XI
Rules 12/14 of the Civil Procedure Code
rejected-revision rejected at the admission
stage-only prayer in Application Under Order XI
Rule 12/14 C.P.C. that the plaintiff no.1/1
should be directed to file the original Will -this
prayer is in the nature Rule 14 - no prayer
under Rule 12- the trial Court can order a party
to produce any document only when it is at
least prima facie satisfied that the document is
in possession or power of that party- defendant
has not pleaded in the written St.ment that the
Will is in possession or power of the plaintifffiled at belated stage.

Petition dismissed. (E-9)

List of Cases cited:

## Text

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9 All. Akhtar Khan Vs. D.J., Pratapgarh & Ors.
939
month prior to decision of the complaint
would not justify the delay of 558 days in
filing the appeal.

24. The plea of moratorium
imposed on 31.08.2023, which remained
effective till 01.02.2024, i.e. for a period of
five months, also does not sufficiently
explain the delay of 558 days in filing the
appeal.

25. It appears that the resignation
of a single employee given a month prior to
passing of the order dated 07.09.2022 and
the imposition of moratorium for a period
of five months are being set up as excuse
for the inordinate delay of 558 days in
filing the appeal, rather than providing a
sufficient cause for the delay.

26. Therefore, this court finds that
the National Consumer Disputes Redressal
Commission, New Delhi has exercised its
discretion in rejecting the application for
condonation of delay of 558 days on sound
reasons and the impugned order rejecting
the application for condonation of delay in
filing the First Appeal does not warrant
amu interference by this court in exercise
of
its
discretionary
power
of
superintendence under Article 227 of the
Constitution of India.

27. The petition lacks merit and
the same is dismissed.
----------
(2024) 9 ILRA 939
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 3801 of 2024
Akhtar Khan ...Petitioner
Versus
D.J., Pratapgarh & Ors. ...Respondents

Counsel for the Petitioner:
Mohd. Aslam Khan

Counsel for the Respondents:
Sanjay Kumar Srivastava

Civil Law - Civil Procedure Code- Order XI
Rules 12 and 14 -Application under Order XI
Rules 12/14 of the Civil Procedure Code
rejected-revision rejected at the admission
stage-only prayer in Application Under Order XI
Rule 12/14 C.P.C. that the plaintiff no.1/1
should be directed to file the original Will -this
prayer is in the nature Rule 14 - no prayer
under Rule 12- the trial Court can order a party
to produce any document only when it is at
least prima facie satisfied that the document is
in possession or power of that party- defendant
has not pleaded in the written St.ment that the
Will is in possession or power of the plaintifffiled at belated stage.

Petition dismissed. (E-9)

List of Cases cited:

1. Udit Narain Singh Malpaharia Vs Addl.
Member Board of Revenue: AIR 1963 SC 786
2. Savitri Devi Vs D.J., Gorakhpur: (1999) 2 SCC
577

3. Jogendrasinhji Vijaysinghji Vs St. of Guj.:
(2015) 9 SCC 1

4. Hari Vishnu Kamath [AIR 1955 SC 233]

5. Vinod Kumar Bajaj (Since Deceased) Vs
Rajendri, 2018 SCC OnLine All 6489

6. Kamalia Brothers and Co. Vs St. of Guj.: AIR
1992 Guj 138 = 1991 SCC OnLine Guj 79

7. Rajkishore Prasad Vs St. of Orissa: AIR 1979
Ori 96 = 1979 SCC OnLine Ori 35

8. Ramlalsao Vs Tansingh Lalsingh: A.I.R. 1952
Nagpur 135
940 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Jagmail Singh Vs Karamjit Singh: (2020) 5
SCC 178

10. Vee Excel Drugs & Pharmaceuticals (P) Ltd.
Vs Union of India, 2014 SCC OnLine All 248 =
(2014) 2 All.L.J. 226

11. St. of Jharkhand Vs Ambay Cements: (2005)
1 SCC 368

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Mohd. Arif Khan Senior
Advocate assisted by Sri Mohd. Aslam
Khan Advocate, the learned counsel for the
petitioner and Sri Sanjay Kumar Srivastava
Advocate, the learned counsel for the
opposite parties.

2. By means of the instant petition
filed under Article 227 of the Constitution
of India, the petitioner has challenged
validity of an order dated 03.05.2024
passed
by
the
Civil
Judge
(Senior
Division)/FTC-II, Pratapgarh in Original
Suit No.01 of 2016 titled Akhtar Khan
versus
Satya
Prakash,
rejecting
the
application (Paper No.95 Ga 2) filed by the
petitioner under Order XI Rules 12/14 of
the Civil Procedure Code (hereinafter
referred to as 'C.P.C.'). The petitioner has
also challenged validity of a judgment and
order dated 30.05.2024 passed by the
learned District Judge, Pratapgarh in Civil
Miscellaneous Case No.117 of 2024 titled
Akhtar Khan versus (1) Poornawati Sharma
and (2) Mamta Sharma, whereby the
Revision filed by the petitioner against the
aforesaid order dated 03.05.2024 has been
dismissed at the admission stage.

3. The petitioner has impleaded the
District Judge, Pratapgarh and the Civil
Judge (Senior Division)/FTC-II, Pratapgarh
as opposite parties no.1 and 2 to the
petition.
4.

In
Udit
Narain
Singh
Malpaharia v. Addl. Member Board of
Revenue: AIR 1963 SC 786, a Bench
consisting of four Hon'ble Judges of the
Hon'ble Supreme Court had held that in a
writ of certiorari not only the tribunal or
authority whose order is sought to be
quashed but also parties in whose favour
the said order is issued are necessary
parties.

5. However, in Savitri Devi vs.
District Judge, Gorakhpur: (1999) 2 SCC
577, a Bench consisting of two Hon'ble
Judges of the Hon'ble Supreme Court had
observed as follows: -

"14. Before parting with
this case, it is necessary for us to
point out one aspect of the matter
which is rather disturbing. In the
writ petition filed in the High Court
as well as the special leave petition
filed in this Court, the District
Judge, Gorakhpur and the 4th
Additional Civil Judge (Junior
Division), Gorakhpur are shown as
respondents and in the special
leave petition, they are shown as
contesting respondents. There was
no necessity for impleading the
judicial officers who disposed of
the matter in a civil proceeding
when the writ petition was filed in
the High Court; nor is there any
justification for impleading them as
parties in the special leave petition
and describing them as contesting
respondents. We do not approve of
the
course
adopted
by
the
petitioner which would cause
unnecessary disturbance to the
functions of the judicial officers
concerned. They cannot be in any
way equated to the officials of the
9 All. Akhtar Khan Vs. D.J., Pratapgarh & Ors.
941
Government. It is high time that
the practice of impleading judicial
officers
disposing
of
civil
proceedings as parties to writ
petitions under Article 226 of the
Constitution of India or special
leave petitions under Article 136 of
the Constitution of India was
stopped.
We
are
strongly
deprecating such a practice."
(Emphasis added)

6. It is relevant to note that the
aforesaid observations were made by the
Bench consisting of two Hon'ble Judges of
the Supreme Court in Savitri Devi (Supra)
without referring to the earlier decision in
Udit Narain Singh Malpaharia (Supra)
given by a larger Bench consisting of four
Hon'ble Judges of the Hon'ble Supreme
Court.

7. In Jogendrasinhji Vijaysinghji
vs. State of Gujrat: (2015) 9 SCC 1,
another Bench consisting of two Hon'ble
Judges of the Hon'ble Supreme Court
discussed numerous precedents on the
issue, including the judgments in the cases
of Udit Narain Singh Malpaharia and
Savitri Devi (Supra) and explained the law
as follows: -

"43. As we notice, the
decisions rendered in Hari Vishnu
Kamath [AIR 1955 SC 233], Udit
Narain Singh [AIR 1963 SC 786]
and Savitri Devi [(1999) 2 SCC
577]
have
to
be
properly
understood.
In Hari
Vishnu
Kamath, the larger Bench was
dealing with a case that arose from
Election Tribunal which had ceased
to exist and expressed the view how
it is a proper party. In Udit Narain
Singh,
the
Court
was
really
dwelling upon the controversy with
regard to the impleadment of
parties in whose favour orders had
been passed and in that context
observed
that
tribunal
is
a
necessary party. In Savitri Devi, the
Court took exception to courts and
tribunals being made parties. It is
apposite
to
note
here
that
propositions laid down in each
case have to be understood in
proper
perspective.
The
civil
courts, which decide matters, are
courts in the strictest sense of the
term. Neither the court nor the
Presiding Officer defends the
order before the superior court it
does not contest. If the High Court,
in exercise of its writ jurisdiction or
revisional jurisdiction, as the case
may be, calls for the records, the
same can always be called for by
the High Court without the Court
or the Presiding Officer being
impleaded as a party. Similarly,
with the passage of time there have
been many a tribunal which only
adjudicate and they have nothing to
do with the lis. We may cite a few
examples: the tribunals constituted
under the Administrative Tribunals
Act, 1985, the Customs, Excise and
Service Tax Appellate Tribunal, the
Income Tax Appellate Tribunal, the
Sales Tax Tribunal and such others.
Every adjudicating authority may
be nomenclatured as a tribunal but
the said authority(ies) are different
from
that
pure
and
simple
adjudicating authorities and that is
why they are called the authorities.
An Income Tax Commissioner,
whatever rank he may be holding,
when he adjudicates, he has to be
made a party, for he can defend his
942 INDIAN LAW REPORTS ALLAHABAD SERIES
order. He is entitled to contest.
There are many authorities under
many a statute. Therefore, the
proposition that can safely be
culled out is that the authorities or
the tribunals, who in law are
entitled to defend the orders
passed by them, are necessary
parties and if they are not arrayed
as parties, the writ petition can be
treated to be not maintainable or
the court may grant liberty to
implead
them
as
parties
in
exercise of its discretion. There
are tribunals which are not at all
required to defend their own order,
and in that case such tribunals
need not be arrayed as parties. To
give another example: in certain
enactments, the District Judges
function as Election Tribunals
from whose orders a revision or a
writ may lie depending upon the
provisions in the Act. In such a
situation, the superior court, that
is the High Court, even if required
to call for the records, the District
Judge need not be a party. Thus, in
essence,
when
a
tribunal
or
authority is required to defend its
own order, it is to be made a party
failing which the proceeding before
the High Court would be regarded
as not maintainable.
(Emphasis added)

8. The Civil Judge and the District
Judge, who decide a matter, are not entitled
to defend their order before this Court and,
therefore, applying the law as it stands
clarified by the Hon'ble Supreme Court in
Jogendrasinhji Vijaysinghji (Supra), the
Civil Courts should not be impleaded as
opposite parties to a petition under Article
227 of the Constitution of India. Therefore,
this petition suffers from the defect of misjoinder of parties.

9. This Court has already heard the
submissions of the learned Counsel for the
parties and the learned Counsel for the
opposite party did not raise the objection of
mis-joinder of parties. Had this objection
been raised during submissions, the learned
Counsel for the petitioner could have taken
appropriate steps to cure the defect. In
these circumstances, it would not be proper
to pass any order adverse to the petition on
this ground and the Court proceeds to
examine the merits of the matter.

10. The petitioner had earlier filed
Second Appeal No.338 of 2016 against
Satya Prakash, the deceased father of the
private opposite party. The Second Appeal
was allowed by means of a judgment and
order dated 09.05.2019 and the matter was
remanded to the trial court for being
decided afresh in light of the observations
made in the judgment dated 09.05.2019.

11. The facts of the case, as
evident from the aforesaid judgment dated
09.05.2019 are that Satya Prakash - the
father and predecessor in interest of the
opposite party no. 3, had filed Regular Suit
No.1 of 2006 in the Court of Civil Judge
(Senior Division), Pratapgarh, for a decree
of permanent injunction, pleading that he
was the owner in possession of the disputed
property on the basis of a Will dated
24.01.1973 executed by Smt. Hardei - the
Grand-mother of Satya Prakash. The
plaintiff had got his name mutated in
respect of the property in dispute as well as
in respect of some other property which
was also subject matter of the aforesaid
Will. He further stated that his brothers Jai
Prakash
and
Chandra
Prakash
were
claiming right over the property in question
9 All. Akhtar Khan Vs. D.J., Pratapgarh & Ors.
943
on the basis of a fictitious Will and they
had sold the property in dispute in favour
of the defendant - petitioner on the basis of
the said fictitious Will. The defendant was
attempting to create interference in the
possession and rights of the plaintiff.

12. The petitioner - defendant filed
his written statement pleading that Smt.
Hardei
had
executed
a
Will
dated
21.03.1952 in favour of Satya Prakash and
his unborn brothers. After the Will was
executed, Satya Prakash had two other
brothers, namely, Jai Prakash and Chandra
Prakash and, therefore, both Jai Prakash
and Chandra Prakash had 2/3rd right in the
property in question, which they had
transferred in favour of the defendant
through a sale-deed dated 06.09.2005. The
defendant also stated that the Will of the
plaintiff was fabricated. The first issue
framed by the trial court was whether the
plaintiff is the owner in possession of the
disputed property and the second issue was
whether the Will dated 21.03.1952 was
validly executed.

13. After filing of the written
statement, the defendant did not participate
in
the
proceedings
and
the
matter
proceeded ex parte against him. The
plaintiff examined himself and three other
witnesses and he filed the original Will
dated 24.01.1973, a certified copy of the
mutation order passed by the Nayab
Tahsildar, a copy of the assessment made
by the Nagarpalika for water tax alongwith
some other documents. The trial Court
dismissed the suit by a judgment and
decree dated 16.01.2012.

14. The plaintiff filed Regular
Civil Appeal No.18 of 2012 under Section
96 C.P.C. before the District Judge,
Pratapgarh. The defendant-petitioner filed
cross-objections. The first appellate court
allowed the appeal and decreed the suit of
the plaintiff by means of a judgment and
decree dated 08.09.2016, against which
Second Appeal No 338 of 2016 was filed in
this Court.

15. In the judgment dated
09.05.2019 passed in the aforesaid Second
Appeal,
this
Court
has
recorded
a
conclusion that on the date when the
evidence was led, the original Will was not
available on record of the trial Court.
Therefore, the first appellate Court ought to
have remanded the matter to the trial Court
to enable the plaintiff to prove the original
Will and returning its findings thereafter.
Accordingly, this Court allowed the appeal
and remanded the matter to the trial Court
with a direction to permit the parties to the
suit to lead evidence and to decide the Suit
afresh after giving complete opportunity to
the parties.

16. While remanding the matter,
this Court had directed the trial Court to
complete the entire exercise and decide the
suit expeditiously as far as possible, say
within a period of eight months from the
date a certified copy of this Court's order
was placed before the trial court. It was
also made clear that no unnecessary
adjournment should be granted to the
parties and if grant of adjournment is
inevitable then it should be visited with
appropriate costs.

17. The trial Court could not
decide the suit within the time granted by
this Court and sought further time to decide
the same, which request was accepted by
means of an order dated 11.11.2021 and a
further period of eight months was granted
to the trial Court for complying with the
944 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 09.05.2019 and deciding the
Suit.

18. After the parties had led their
respective evidences, the trial Court started
hearing submissions in support of the
plaintiff's case on 12.03.2024, which were
concluded on 15.03.2024. Thereafter the
suit was fixed for hearing submissions of
the defendant - petitioner.

19. On 22.03.2024, when the suit
was fixed for hearing submissions on
behalf of the defendant - petitioner, he filed
an application under Order XI Rules 12/14
C.P.C. stating that the original Will dated
21.03.1952 executed by Hardei in favour of
Satya Prakash and his unborn brother was
lying with the original plaintiff Satya
Prakash and after his death, the original
Will was with his wife Smt. Poornawati,
who should be directed to file the original
Will dated 21.03.1952. It was also stated in
the application that although some delay
had occurred in filing the application due to
inadvertence and ignorance of law, it was
necessary for a just decision of the case that
the original Will be summoned from the
plaintiff no.1/1 Smt. Poornawati Sharma
and that the defendant - petitioner should
not be deprived of his legal and judicial
rights.

20. The opposite party-plaintiff
filed objections against the aforesaid
application, denying that the original Will
dated 21.03.1952 was with the original
plaintiff Satya Prakash and after his death,
it is with his heirs. The entire evidence had
been recorded and the plaintiff's Advocate
had concluded his submissions. It was not
proper for the defendant to have filed the
application at that stage and the application
is not maintainable. It has come to light
during recording of evidence of PW-1 -
Smt. Poornawati Sharma that she got
married in the year 1968. She had no
knowledge about the Will executed in the
year 1952 and she has neither seen it nor
has heard about it. There is no evidence to
prove
that
the
original
Will
dated
21.03.1952 is with the plaintiff. Therefore,
the application for summoning the Will
from the plaintiff was not maintainable. It
has also come to light in the evidence that
Chandra Prakash acquired knowledge of
the Will through his father Lalit Rai in the
year 1985-86. Lalit Rai has died. Therefore,
this is no occasion for directing the plaintiff
to
produce
the
original
Will
dated
21.03.1952. The defendant had filed the
application for filing up the lacuna in his
case. The application was liable to be
dismissed.

21. The trial Court rejected the
application by means of the impugned
order dated 03.05.2024 wherein it is
recorded that the plaintiff has filed the suit
for perpetual injunction and he has to lead
evidence to prove his title and possession in
respect of the property in dispute claiming
that he is the owner and in possession of
the property on the basis of a Will dated
24.11.1973. The defendant claims to be
owner of 2/3rd share in the property on the
basis of a Will dated 21.03.1952 and the
burden of proving this fact lies on the
defendant. As both the parties have already
led their evidences and the submissions on
behalf of the plaintiff have already been
heard, the application moved when the suit
was fixed for hearing submissions on
behalf of the defendant, was merely an
attempt to cause undue delay in disposal of
the suit. The matter is very old and the
High Court has issued a direction for its
expeditious disposal. Therefore, there was
no ground for directing the plaintiff to
produce the document.
9 All. Akhtar Khan Vs. D.J., Pratapgarh & Ors.
945
22. The petitioner filed a revision
against
the
aforesaid
order
dated
03.05.2024 which has been dismissed at the
admission stage by the impugned order
dated 30.05.2024 after recording that the
suit is pending since the year 2006.
Initially, it had been dismissed by means of
an ex parte order dated 16.01.2012. The
plaintiff Satya Prakash had challenged the
ex parte order dated 16.01.2012 by filing
Civil Appeal No.18 of 2012, which was
allowed by means of a judgment and order
dated 08.09.2016 passed by the learned
Additional District Judge, Court No.9,
Pratapgarh and a decree of perpetual
injunction was passed in favour of the
plaintiff. The petitioner filed Second
Appeal No. 338 of 2016, which was
allowed by a judgment and order dated
09.05.2019 and the matter was remanded to
the trial Court for being decided afresh
after giving proper opportunity to the
parties to lead evidence as well as
opportunity of hearing.

23. The revisional Court held that
the original plaintiff had filed the suit on
the basis of the Will dated 24.01.1973 and
he had filed this Will. The burden to prove
this Will lies on the plaintiff. The
revisionist/ defendant/petitioner claims title
on the basis of a registered sale-deed dated
06.09.2005 and has filed the same as Paper
No. 83 Ga 1/2 to 83 Ga 1/10. The aforesaid
sale-deed has been executed by Jai Prakash
and Chandra Prakash - sons of Late Lalit
Rai, who claimed title on the basis of a Will
dated 21.03.1952 executed by Smt. Hardei.
The
parties
have
already
led
their
respective evidence and submissions on
behalf of plaintiff have already been heard
by the trial court. The revisionist/petitioner
has filed a certified true copy of the
registered Will dated 21.03.1952. The
learned Civil Judge has not decided any
point finally by the impugned order dated
03.05.2024 and the order does not come
within the term 'case decided'. Therefore,
the revision was dismissed at the admission
stage.

24. Challenging validity of the
aforesaid orders, the learned counsel for the
petitioner Sri Mohd. Arif Khan Senior
Advocate has submitted that the plaintiff
had
not
disclosed
existence
of
the
registered Will dated 21.03.1952 in the
plaint and the suit was filed on the basis of
an unregistered Will dated 21.03.1973
executed by Hardei. The unregistered Will
dated 24.01.1973 contains no recital about
the earlier Will dated 21.03.1952. In the
judgment and order dated 09.05.2019
passed in Second Appeal No.338 of 2016,
this Court had directed that the suit will be
decided afresh after permitting the parties
to the suit to lead the evidence. He has
submitted that the certified copy of the Will
dated 21.03.1952 is a secondary evidence
and it is not admissible in evidence. The
petitioner does not have the original Will in
his possession and it is in possession of the
opposite party and, therefore, the opposite
party should be directed to produce the
original Will dated 21.03.1952 before the
trial Court.

25. The learned Counsel for the
petitioner has relied upon the decisions in
the cases of Vinod Kumar Bajaj (Since
Deceased) verus Rajendri, 2018 SCC
OnLine All 6489, Kamalia Brothers and
Co. versus State of Gujarat: AIR 1992
Guj 138 = 1991 SCC OnLine Guj 79,
Rajkishore
Prasad versus
State
of
Orissa: AIR 1979 Ori 96 = 1979 SCC
OnLine
Ori
35,
Ramlalsao
versus
Tansingh Lalsingh: A.I.R. 1952 Nagpur
135 and Jagmail Singh versus Karamjit
Singh: (2020) 5 SCC 178.
946 INDIAN LAW REPORTS ALLAHABAD SERIES
26. Per contra, Sri. Sanjay Kumar
Srivastava Advocate, the learned counsel
for the opposite party no. 3 has submitted
that while remanding the matter by means
of the judgment and order dated 09.05.2019
passed in Second Appeal No.338 of 2016,
this Court had directed the trial Court to
conclude the trial within eight months, but
the trial Court could not decide the suit
within the time granted by this Court. The
suit could not be decided even in the
further period of eight months granted by
means of the order dated 11.11.2021 passed
by this Court, which period expired on
10.07.2022.
The
petitioner
filed
the
application under Order XI Rules 12/14
C.P.C. on 22.03.2024 i.e. long after even
the extended time granted by this Court for
decision of the suit and after the petitioner
had availed the opportunity of leading
evidence and had also availed the benefit of
hearing the submissions advanced on
behalf of the plaintiff-opposite parties. The
application under Order XI Rules 12/14
C.P.C. was moved at this belated stage to
cure the lacuna in the petitioner's case,
which
had
been
highlighted
during
submissions advanced on behalf of the
opposite parties. In these circumstances, the
trial Court has not committed any error or
illegality in rejecting the application under
Order XI Rules 12/14 C.P.C. and the
revisional Court has not committed any
error or illegality in dismissing the revision
filed against the aforesaid order.

27. The learned Counsel for the
opposite party has relied upon a judgment
rendered by a coordinate Bench of this
Court
in
Vee
Excel
Drugs
&
Pharmaceuticals (P) Ltd. versus Union
of India, 2014 SCC OnLine All 248 =
(2014) 2 All.L.J. 226, wherein a coordinate
Bench of this Court referred to the decision
of the Hon'ble Supreme Court in State of
Jharkhand v. Ambay Cements: (2005) 1
SCC 368, in which the Hon'ble Supreme
Court reiterated the well established
principle of law that where a statute
provides that a particular thing should be
done in a particular manner, it should be
done in the manner prescribed and not in
any other way.

28. Now I proceed to consider the
case-laws paced by the learned Counsel for
the petitioner. In Vinod Kumar Bajaj
(Supra), a coordinate Bench of this Court
held that: -

"under Order XI, Rule 14
when a document is summoned the
Court can immediately proceed
with the suit after dealing with it.
Summoning of it would not mean
that the Court had relied upon it or
had admitted it as evidence. It is
definitely
lamentable
that
the
plaintiff after all these years had
moved the application so late in the
day. The case, for one reason or the
other has lingered for more than 22
years. However, only because the
summoning of the documents has
now been prayed for at this late
stage, the Court cannot say that the
document
would now not be
summoned.
* * *
The observation of the
Court that the documents were
public documents, and, therefore
the plaintiff could have obtained
the copies under the RTI also does
not hold much water. In fact, had
the Courts summoned the document
at the very outset, then a lot of time
would have been saved and the suit
in all probability would have been
decided a year back."
9 All. Akhtar Khan Vs. D.J., Pratapgarh & Ors.
947
29. In Kamalia Brothers and Co.
v. State of Gujarat: AIR 1992 Guj 138 =
1991 SCC OnLine Guj 79, a Single Judge
Bench of Gujarat High Court held that: -

"7. ...The requirements of
this provision are limited only to
the fact that the documents should
be or should have been in the
possession or power of a party to
the suit, and that the same should
relate to any matter in question in
the suit."

30. In Rajkishore Prasad v. State of
Orissa: AIR 1979 Ori 96 = 1979 SCC
OnLine Ori 35, a Single Judge Bench of
Orissa High Court held that: -

"6. ...in M.L.
Sethi v. R.P
Kapur [(1972) 2 SCC 427] it has
been held that the provisions of
Order 11, rule 12, Civil Procedure
Code mean that it is sufficient if the
documents would be relevant for
the purpose of throwing light on the
matter
in
controversy.
Every
document which will throw any
light on the case is a document
relating to a matter in dispite in the
proceedings, though it might not be
admissible in evidence. In other
words, a document might be
inadmissible in evidence, yet it may
contain information which may
either directly or indirectly enable
the party seeking discovery either
to advance his case or damage the
adversary's case or which may lead
to a trial of enquiry which may
have
either
of
these
two
consequences. It has also been held
that generally speaking, a party is
entitled
to
inspection
of
all
documents which do not themselves
constitute exclusively the other
party's evidence of his case or title.
If a party wants inspection of
documents in the possession of the
opposite party, he cannot inspect
them
unless
the
other
party
produces them. The party wanting
inspection must, therefore, call
upon the opposite party to produce
the document. And how can a party
do this unless he knows what
documents are in the possession or
power of the opposite party? In
other words, unless the party
seeking discovery knows what are
the documents in the possession or
custody of the opposite party which
would
throw
light
upon
the
question in controversy, how is it
possible for him to ask for
discovery of specific documents?
The aforesaid principle has been
elaborately
discussed
in The
Compagnie
Financiere
Et
Commerciale Du Pacifique v. The
Peruvian Guano Company [(1883)
11 Q B. D. 55.]. In that case, it has
been observed that "a document
relating to any matter in question
in action" means that in order to
determine
whether
certain
documents
are
within
that
description, it is necessary to
consider what are the questions in
the action. The Court must look not
only at the statement of claim of the
plaintiff's case but also at the
statement of the defence and the
defendant's case.
7. In AttorneyGeneral v. Gaskil [(1882) 20 Ch.
D. 519.] , Cotton L.J. observed:
"The right to discovery
remains the same, that is to say, a
party has a right to interrogate
948 INDIAN LAW REPORTS ALLAHABAD SERIES
with a view to obtaining an
admission from his opponent of
everything which is material and
relevant to the issue raised on the
pleadings. It was said in argument
that it is not discovery where the
plaintiff himself already knows the
fact. But that is a mere play on the
word 'discovery'. Discovery is not
limited to giving the plaintiff a
knowledge of that which he does
not know, but includes the getting
an admission of anything which he
is to prove on any issue which is
raised
between
him
and
the
defendant.
To
show
that
the
pleadings have raised issues' and
that
therefore
interrogatories
should not be allowed is another
fallacy. The object of the pleadings
is to ascertain what issues are.
"The object of the interrogatories
is not to learn what the issues are
but to see whether the party
intelligently
can
obtain
an
admission from his opponent which
makes the burden of proof easier
than it otherwise would have
been."

31.

In
Ramlalsao
versus
Tansingh Lalsingh: A.I.R. 1952 Nagpur
135, a Division Bench of Nagpur High
Court held that: -

"The right of a party to
deliver
interrogatories
to
his
opponent and get answers from him
is a valuable one in conducting his
cause and he should not lightly be
deprived
of
it.
It
must
be
remembered that discovery of facts
and documents often tends to
shorten
litigation
and
save
expenses. The learned Judge had
not framed all the issues arising
from the pleadings of the parties. If
he had framed these issues and
permitted the parties to make full
use of Orders 11 and 12, Civil
Procedure Code, the trial would
have been shortened and he would
have found ample malarial to
decide the case correctly. Probably,
the preliminary decree could have
been passed even without going
into oral evidence."

32. There can be no dispute to the
propositions of law laid down in the cases
cited by the learned Counsel for the parties,
but none of the decisions would render any
help in decision of this petition, as the
factual background of this case gives rise to
the questions, which have not been
answered
in
any
of
the
aforesaid
judgments.

33. The defendant - petitioner has
filed the application under Order XI, Rules
12/14 of C.P.C., which provide as follows: -

"12.
Application
for
discovery
of
documents.-Any
party may, without filing any
affidavit, apply to the Court for an
order directing any other party to
any suit to make discovery on oath
of the documents which are or have
been in his possession or power,
relating to any matter in question
therein. On the hearing of such
application the Court may either
refuse or adjourn the same, if
satisfied that such discovery is not
necessary, or not necessary at that
stage of the suit, or make such
order, either generally or limited to
certain classes of documents, as
9 All. Akhtar Khan Vs. D.J., Pratapgarh & Ors.
949
may, in its discretion, be thought
fit:
Provided
that
discovery
shall not be ordered when and so
far as the Court shall be of opinion
that it is not necessary either for
disposing fairly of the suit or for
saving costs.
* * *
14.
Production
of
documents.-It shall be lawful for
the Court, at any time during the
pendency of any suit, to order the
production by any party thereto,
upon
oath,
of
such
of
the
documents in his possession or
power, relating to any matter in
question in such suit, as the Court
shall think right; and the Court
may deal with such documents,
when produced, in such manner as
shall appear just."

34. Although the application is
titled as an 'Application Under Order XI
Rule 12/14 C.P.C.', the only prayer made in
it is that the plaintiff no.1/1 Smt.
Poornawati Sharma should be directed to
file the original Will dated 21.03.1952
executed by Hardei in favour of Satya
Prakash and his unborn brother. This prayer
is in the nature of a prayer under Order XI
Rule 14 and there is no prayer under Order
XI Rule 12.

35. Order XI Rule 14 C.P.C.
empowers the Court to order the production
by any party thereto, of such of the
documents in his possession or power,
relating to any matter in question in such
suit. The requirements for invoking this
power are that - (1) the document must be
in possession or power of a party to the suit
and (2) the document must relate to any
matter in question in the suit.
36. The trial Court can order a
party to produce any document only when
it is at least prima facie satisfied that the
document is in possession or power of that
party. In the present case, the defendant has
not pleaded in the written statement that the
Will dated 21.03.1952 allegedly executed
by Smt. Hardei in favour of Satya Prakash
and his unborn brothers is in possession or
power
of
the
plaintiff.
PW-1
Smt.
Poornawati
Sharma
has
categorically
denied
that
the
original Will dated
21.03.1952 was with the original plaintiff
Satya Prakash and after his death, it is with
her. PW-1 Smt. Poornawati Sharma has
stated that she got married in the year 1968,
she had no knowledge about the Will
executed in the year 1952 and she has
neither seen it nor has heard about it. There
is no evidence to prove that the original
Will dated 21.03.1952 is with the plaintiff.
Therefore, this is no material before the
trial Court to come to a prima facie
satisfaction that the original Will dated
21.03.1952 is in possession or power of the
plaintiff.
Therefore,
no
direction
for
production of the original Will dated
21.03.1952 can be issued to the plaintiff -
opposite party no. 3.

37. There is another aspect of the
matter which needs to be addressed.
Although Rule 14 empowers the trial Court
to summon the document at any stage of
the suit, the application has to be filed with
reasonable promptitude. In the present case,
the suit was filed in the year 2006 and it is
being re-tried after the matter having been
remanded by this Court through the order
dated 09.05.2019 passed in Second Appeal
No.338 of 2016, which had directed the
trial
Court
to
conclude
the
trial
expeditiously, preferably within a period of
eight months. This period was extended by
means of an order dated 11.11.2021 and a
950 INDIAN LAW REPORTS ALLAHABAD SERIES
further period of eight months was granted
to the trial Court for complying with the
order dated 09.05.2019. The extended
period granted by this Court also expired
on 10.07.2022, but the trial Court could not
decide the suit even in the extended period.
The petitioner filed the application under
Order XI Rules 12/14 C.P.C. on 22.03.2024
i.e. long after even the extended time
granted by this Court for decision of the
suit
and
after
he
had
availed
the
opportunity of leading evidence and had
also availed the benefit of hearing the
submissions advanced on behalf of the
plaintiff-opposite parties.

38. There is force in the
submission of the learned Counsel for the
opposite party no. 3 that the application
under Order XI Rules 12/14 C.P.C. has
been moved at this belated stage to cure the
lacuna in the petitioner's case, which has
been
highlighted
during
submissions
advanced on behalf of the plaintiff.
Allowing the application under Order XI
Rules 12/14 C.P.C. in these circumstances
would cause prejudice to the rights of the
plaintiff - opposite party no. 3. In these
circumstances, the trial court has not
committed any error or illegality in
rejecting the highly belated application
under Order XI Rules 12/14 C.P.C. and the
revisional court has not committed any
error or illegality in dismissing the revision
filed against the aforesaid order.

39. Sri. Mohd. Arif Khan Senior
Advocate has also submitted that the
petitioner has filed a certified copy of the
Will dated 21.03.1952, but the certified
copy being a secondary evidence, would
not be admissible in evidence and,
therefore, it is necessary that the opposite
party no. 3 be directed to produce the
original Will dated 21.03.1952. In support
of this submission, Sri. Khan has placed
reliance on a judgment of the Hon'ble
Supreme Court in the case of Jagmail
Singh versus Karamjit Singh: (2020) 5
SCC 178, wherein the Hon'ble Supreme
Court held that: -

"11. A perusal of Section
65 makes it clear that secondary
evidence may be given with regard
to existence, condition or the
contents of a document when the
original is shown or appears to be
in possession or power against
whom the document is sought to be
produced, or of any person out of
reach of, or not subject to, the
process of the court, or of any
person legally bound to produce it,
and when, after notice mentioned in
Section 66 such person does not
produce it. It is a settled position of
law that for secondary evidence to
be admitted foundational evidence
has to be given being the reasons
as to why the original evidence has
not been furnished.
* * *
14. It is trite that under the
Evidence Act, 1872 facts have to be
established by primary evidence
and secondary evidence is only an
exception to the rule for which
foundational facts have to be
established to account for the
existence of the primary evidence.
In H.
Siddiqui v. A.
Ramalingam [(2011) 4 SCC 240],
this Court reiterated that where
original
documents
are
not
produced
without
a
plausible
reason and factual foundation for
laying secondary evidence not
established it is not permissible for
9 All. Akhtar Khan Vs. D.J., Pratapgarh & Ors.
951
the court to allow a party to adduce
secondary evidence."

40. The aforesaid submission has
been made in ignorance of the statutory
provision contained in Section 57 of the
Registration Act, 1908, which provides as
follows: -

"57. Registering officers to
allow inspection of certain books
and indexes, and to give certified
copies of entries.-(1) Subject to
the previous payment of the fees
payable in that behalf, the Books
Nos. 1 and 2 and the indexes
relating to Book No. I shall be at
all times open to inspection by any
person applying to inspect the
same; and, subject to the provisions
of Section 62, copies of entries in
such books shall be given to all
persons applying for such copies.
(2) Subject to the same
provisions, copies of entries in
Book No. 3 and in the Index
relating thereto shall be given to
the
persons
executing
the
documents to which such entries
relate, or to their agents, and after
the death of the executants (but
not before) to any person applying
for such copies.
(3) Subject to the same
provisions, copies of entries in
Book No. 4 and in the Index
relating thereto shall be given to
any person executing or claiming
under the documents to which such
entries respectively refer, or to his
agent or representative.
(4) The requisite search
under this section for entries in
Books Nos. 3 and 4 shall be made
only by the registering officer.
(5) All copies given under
this section shall be signed and
sealed by the registering officer,
and shall be admissible for the
purpose of proving the contents of
the original documents."
(Emphasis added)

41. Wills are registered in Book
No. 3 and Section 57 (2) provides that after
the death of the testator, any person can
obtain a certified copy of any document
registered in Book No. 3.