Point of Law: Civil Law – Secondary Evidence – Reliability of - A party to lis may choose to file an application which is required to be considered by trial court but if any party to suit has laid foundation of leading of secondary evidence, either in plaint or in evidence, secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary is not filed.

JUDGMENT :

Jyotsna Rewal Dua, J.

The petitioners/plaintiffs have laid challenge to the order dated 15.06.2018 passed by the learned Trial Court, whereby the application moved by respondent No.1/ Defendant No.1 under Section 65 of the Indian Evidence Act was allowed and the photocopy of original will dated 07.11.1987 was permitted to be placed on record. Aggrieved, the petitioners have preferred instant petition under Article 227 of the Constitution of India.

2. Bare minimum facts required to be noticed for adjudication of this petition are:-

2(i). Suit was filed by the petitioners for declaration to the effect that they are joint owners in possession with the defendants to the extent of specified shares over the suit land and further that mutation No.54, dated 15.03.1988, with respect to estate of late Sh. Sudama Ram, sanctioned and attested in favour of the defendants, was illegal, null and void. Consequential relief of permanent injunction was also prayed for.

2(ii). Defendant No.1 (respondent No.1 herein) resisted the suit, inter alia, putting forth the claim that father of the plaintiffs and defendants had executed a will on 07.11.1987 in favour of the defendants. The mutation of the property of the deceased was accordingly sanctioned and attested in favour of the defendants in equal shares. The original will was shown to the revenue officers at the time of sanctioning of the mutation. It was further set out that mutation No.54, dated 15.03.1988, was sanctioned and attested in presence of the plaintiffs, who never objected to the same being based on genuine will. Copy of the will dated 07.11.1987 was enclosed with the written statement.

2(iii). On 11.05.2017, defendant No.1 moved an Application under Section 65 of the Indian Evidence Act for taking on record the photocopy of the original will dated 07.11.1987 as secondary evidence. The application was moved on the premise that after the attestation of mutation No.54 on the basis of the original will by the revenue officers, the same was handed over by defendant No.1 to defendant No.2. Defendant No.2 is now hand in gloves with the plaintiffs and despite repeated requests of defendant No.1, has not produced the original will. It was further stated that an application under Order 12 Rule 8 read with Section 151 of the Code of Civil Procedure (CPC) was also moved on 08.06.2016 by defendant No.1 in this regard. Notice of the application was also given to defendant No.2, who in his reply to the application, refused that the original will was handed over to him. Accordingly, the learned Court below disposed of this application on 09.05.2017 and fixed the case for defendants’ evidence. It was further the submission of defendant No.1 that since his entire defence is based upon the will dated 07.11.1987, therefore, the same is required to be placed on record to prove its execution. In light of these submissions, prayer was made to lead secondary evidence in respect of photocopy of the original will dated 07.11.1987.

2(iv). The application was opposed by the petitioners. It was denied that during his lifetime, father of the parties executed the will dated 07.11.1987. Petitioners submitted that defendant No.1 had intentionally withheld the document to save himself from the criminal proceedings as the same was a forged document. Another contention raised was that in the written statement, defendant No.1 had not stated about handing over the original will to defendant No.2.

2(v). Upon hearing the parties, learned Trial Court vide order dated 15.06.2018, allowed the application, thereby permitting defendant No.1 to lead secondary evidence in respect of original will dated 07.11.1987. It is in the above background that the instant petition has been filed by the petitioners.

3. After hearing learned counsel for the parties and perusing the record available on the file, in my considered view, the impugned order suffers from no infirmity for the following reasons:-

3(i). Defendant No.1 (respondent No