Validation of secondary evidence requires strict adherence to stipulations under Section 65 of the Indian Evidence Act, failing which the application may be quashed.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has assailed order dated 04.10.2017, passed by learned Civil Judge (Senior Division), Court No.1, Ghumarwin, District Bilaspur, H.P., in CMA No. 781-6 of 2016, in Civil Suit No. CS 102-1 of 2011, in terms whereof, an application filed by the predecessor respondents No.1(a) to 1(c), namely Amar Nath, under Section 65 of the Indian Evidence Act (hereinafter referred to as ‘the Evidence Act’) to lead secondary evidence, was allowed.

2. Brief facts necessary for the adjudication of this petition are that deceased-respondent No.1 Amar Nath, who was the plaintiff before the learned Trial Court, filed a suit praying for a decree of declaration to the effect that plaintiff and defendant No.1 are joint owners in possession in equal share over the share of late Smt. Har Dei, as per her last Will executed on 12.12.2009 and revenue entries showing Har Dei as the owner in possession in revenue record are illegal, null and void.

3. In terms of the averments made in the plaint, copy whereof is on record as Annexure P-1, the contention of the plaintiff was that the plaintiff, defendant No.1 and Smt. Har Dei are jointly recorded as owners in possession of the suit land. Smt. Har Dei was being looked after and maintained by the plaintiff as well as defendant No.1 during her lifetime and as Har Dei was pleased with the services of plaintiff and defendant No.1, she had executed a Will dated 12.12.2009 out of her free will, consent etc. and in terms whereof, the plaintiff and defendant No.1 were to inherit the property in equal share.

4. According to the plaintiff, after the death of their mother, he asked defendant No.1 to get the mutation attested on the basis of Will dated 12.12.2009, but defendant No.1 on flimsy pretexts evaded it. Thereafter, plaintiff filed an application for registration of the aforesaid Will, but in the meantime, defendant No.1 threatened to forcibly dispossess the plaintiff from the suit land and started claiming his sole right over the suit land, hence the suit.

5. In the written statement, the defence taken by defendant No.1 is, inter alia, to the effect that Har Dei during her lifetime, had executed a Will dated 12.02.1985 which was duly registered in the Office of Sub-Registrar Ghumarwin, vide No.83, Page No. 4-5, Book No. 3/1991, in terms whereof, the suit land devolved upon defendant No.1. The defendant denied the execution of any Will dated 12-12-2009 by Har Dei in favour of the plaintiff and pleaded that the plaintiff had managed and manufactured this false Will in connivance with the witnesses.

6. In the backdrop of the said respective stands of the parties, an application under Section 65 of the Evidence Act was filed by the plaintiff-Amar Nath before the learned Trial Court seeking leave to lead additional evidence. Said application is on record as a Annexure P-7. It was mentioned in the application that the plaintiff had filed the suit which was pending adjudication. The basis of the suit was Will dated 12.12.2009, which was the last testament of late Smt. Har Dei. After the death of their mother, the plaintiff submitted said Will for registration under Sections 40 and 41 of the Evidence Act before Sub-Registrar, Ghumarwin, District Bilaspur along-with an application. However, defendant No.1, who is a very influential and clever person, influenced Sub-Registrar Bhrari and got said Will misplaced from the Office of Sub-Registrar Bhrari, in connivance with the official in the said office and in this regard, a report was lodged by the applicant in Police Station Bhrari. In this backdrop, a notice as is required under Section 65 of the Evidence Act was served upon defendant No.1, calling upon him to produce the original Will, but as he failed to do so, therefore, the plaintiff had no option but to file the application with the prayer that the plaintiff be allowed to prove the said Will by leading secondary evidence.

7. The application was resisted by d