Mahendra Kumar @APPELLANT@Hash Satyanarayan

The petitioner has preferred this writ petition under Article 226 & 227 of the Constitution of India, claiming the following reliefs:

“I. The order dated 07.12.2015 passed by the learned Additional District Judge No.2, Bikaner in Civil Original Suit No.22/2014 may kindly be

quashed and set aside and the application filed by the petitioner-defendant under Order 8 Rule 1-A CPC may kindly be allowed in toto.

II. any other appropriate order or direction, which thisHon’ble Court considers just and proper in the facts and circumstances of this case, may

kindly be passed in favour of the petitioner.

III. Costs of the writ petition may kindly be awarded to thepetitioner.â€​

Learned counsel for the petitioner has submitted that the petitioner-defendant is the son of the respondent-plaintiff and the suit in question for

permanent injunction has been instituted, as the respondent-plaintiff is claiming the sole ownership of the disputed property, the residential house in

question, on the basis of Will dated 31.12.1962 executed by his Late father. The respondent-plaintiff claims that the petitioner-defendant only had a

limited right of residence in the premises in question.

Learned counsel for the petitioner-defendant has pointed out that the disputed property was the self acquired property of his grandfather, and as per

Will dated 14.09.1975, the disputed property situated at Rani Bazar, Bikaner, was divided into four equal shares, out of which, one share was given to

the petitioner’s father; second share was given to his mother; third share was given to him; and the fourth share was given to his brother,

Surendra Kumar, and all of them are holding their respective shares.

Thereafter, the petitioner/defendant had moved an application under Order 11 Rules 12 & 14 CPC, whereby a prayer was made to direct the

respondent to produce the documents i.e. Wills dated 31.01.1968, 04.08.1969, 14.09.1975, 19.07.1982 and mortgage deed dated 08.02.2008. The

learned court below has allowed the application vide order dated 07.12.2015. However, the petitioner now seeks to bring certain documents on record

pertaining to the same Will and possession of the property under Order 8 Rule 1-A CPC.

As per learned counsel for the petitioner, the documents sought to be brought on record are pertaining to the stand taken by the parties including the

respondent-plaintiff regarding the disputed property and particularly, the division thereof into four equal shares, as aforesaid, made by the grand father

of the petitioner.

Learned counsel for the petitioner has relied upon the precedent law laid down by the Hon’ble Apex Court in M/s Surendra Trading Company

Vs. M/s. Juggilal Kamlapat Jute Mills Company Limited and Ors. (Civil Appeal No.8400 of 2017) decided on 19.09.2017, whereby the Hon’ble

Apex Court has laid down that a provision in a statute, which is procedural in nature, may not be held to be mandatory, if thereby no prejudice is

caused.

Learned counsel for the petitioner has also relied upon the judgment of the Hon’ble Madhya Pradesh High Court in Salim Khan Vs. Nargis

Begum in Writ Petition No.5685/2009 decided on 19.03.2015, whereby it was held that Order 8 Rule 1 CPC, being a part of the procedural law, is

directory in nature.

Learned counsel for the respondent has strongly refuted the aforesaid submissions made on behalf of the petitioner on the ground that the

documents sought to be taken on record are not as per the context of the written statement. It is also stated that the documents are vague and cannot

be permitted as Order 8 Rule 1-A CPC prescribes that the documents can be taken on record by resorting to certain procedural provisions which have

not been followed by the petitioner in this case.

Learned counsel for the respondent has relied upon the judgment rendered by this Hon’ble Court at Jaipur Bench in Kalyan Sahai Vs. Mangi

Lal Selibet Disciple (Bramchari Chela) Shri Chetanpuri & Ors. reported in 2018(1) DNJ (Raj.) 133, in which, interference, in the order pertaining to

the discretion under Order 8 Rule 1-A (3) CPC, by exercising the power of superintendence under Article 227 of the Constitution of India, was not

warranted by this Hon’ble Court, in the particular circumstance, wherein Adhikar Patra was filed belatedly, and that too, without giving any

explanation about its previous possession.

After hearing learned counsel for the parties and perusing the record of the case, this Court is of the opinion that Order 8 Rule 1-A (3) CPC

conferred on the learned court below a clear discretion to receive the document in evidence on behalf of the defendant, and such discretion has to be

exercised looking into the fact that whether the document in question was necessary for adjudication of the basic dispute. The relevance and context

of the document concerned vis-a-vis the written statement of the defendant and the previous conduct of the defendant is also important.

In the present case, the defendant has taken a stand of the property having been divided into four equal shares by virtue of subsequent Will, as

aforesaid, and moreover, the application of the petitioner was already allowed and the concerned Wills and documents were taken on record.

On a careful perusal of the record of the case, this Court finds that the documents mentioned to be taken on record are pertaining to the dispute,

and thus, shall be required by the learned court below for effective and proper adjudication of the dispute, particularly, in light of the fact that the stand

of the respondent-plaintiff regarding the property in question shall have a direct impact upon his prayer to seek restoration of possession and

permanent injunction as a sole owner of the property in question.

In light of aforesaid discussion, the present writ petition is allowed and the impugned order dated 07.12.2015 passed by the learned Additional

District Judge No.2, Bikaner in Civil Original Suit No.22/2014 is quashed and set aside and the application filed by the petitioner-defendant under

Order 8 Rule 1-A of the CPC is allowed. The learned court below however, shall be required to expedite the trial.